Tuesday, March 24, 2009

Arizona Supreme Court Rules on Severability of Groundwater Rights from Property

This is a follow-up to a previous post regarding a recent legal case in Arizona that considered whether rights to groundwater associated with a parcel of land can be held separately from ownership of the land.

The Arizona Supreme Court obviously felt it was an important case because they accepted it for review near the end of 2008, then scheduled it for oral argument in early Jan. 2009, and published their opinion late last week.

If you read my earlier post you will notice that I half-heartedly endorsed the Court of Appeals decision and thought the Supreme Court would affirm. On further consideration I changed my mind because the property rights to groundwater created by the Appeals court reading of the cases would be incomplete and do nothing to encourage efficient use of groundwater. I also began to see the illogic in their reading of the cases on which the decision hinged. It turns out I was right the second time. The Supreme Court went with what I would call a much more straightforward reading of the law (and the nature of property rights in groundwater) and held that, because there can be no future right to groundwater in Arizona (outside of an AMA), a property owner cannot reserve the right to pump groundwater from property after conveyance of the property.

The ruling appeared to hinge on the way the appeals court interpreted a few earlier cases they thought meant that a real property interest in future groundwater use could exist. But the Supreme Court differed in their interpretation of those cases and relied primarily on the Arizona case Town of Chino Valley v. City of Prescott and the U.S. District Court case Cherry v. Steiner to support the notion that rights to groundwater are perfected only by pumping the water to the surface (usufructory rights), therefore land ownership vests no rights to groundwater prior to pumping, so the previous owners who tried to reserve rights to groundwater had no actual property rights to reserve.

This reading of the law is in agreement with traditional economic notions of property rights to fugitive resources - something not all courts seem to grasp. In Texas, by contrast, their courts have interpreted the rule of absolute ownership as creating actual property rights in groundwater in situ (also the original common law view in Arizona until changed by the courts), permitting the reservation of rights to groundwater when property is conveyed. I looked at a couple of cases decided by their appellate courts recently affirming this view. One thing I found very interesting in the Texas cases was the statement that the rule of absolute ownership is distinct from the rule of capture. They claimed the rule of capture is simply a rule of tort liability (non-liability really) but the rule of absolute ownership is a property rights rule. That is a legal interpretation so it does not have to relate in any way to economic realities - but I think they would be better off if it did.

update on City/County water study

Last week was supposed to be the first meeting of Phase II of the study, but first the committee had to clear up some unfinished business on the Phase I report. Unfortunately, that unfinished business dominated the evening and bumped the discussion of drought preparedness off the schedule. I didn't wait around til the end of the meeting and am still waiting for the revised schedule to be posted, but I'll assume the report was wrapped up and the next meeting (4/23) will be devoted solely to Phase II.

While I was at the meeting most of the discussion was focused on language in the report describing uncertainties associated with our water supply resulting from possible shortages on the Colorado River. This discussion focused on a need to clarify that the potential for shortages on the river does not affect Tucson Water's designation of assured water supply - which is true. But this brings up the distinction between paper water rights (the amount of water you have legal rights to) and wet water rights (the amount of water physically available to satisfy your paper water rights). This was something that possibly could be more clearly stated in the report, although doing so is likely to result in more questions for the average reader who may have some difficulty with the subject. And in the end what people really need to know is what the effects on our wet water supplies are likely to be - and the impacts from those effects.

The remainder of the discussion I was present for mainly related to dropping or inserting a sentence here and there - housekeeping mostly.

Thursday, March 19, 2009

World Water Day - 3/22/09 - Focusing on Transboundary Waters

To commemorate World Water Day, happening this Sunday, Daniel Collins, an Australian (correction - Kiwi) hydrologist who blogs at Crikey Creek, suggested that all bloggers who focus on water dedicate a post to the issue of transboundary waters - water resources that are shared by more than one country (or state).

Transboundary waters are commonly discussed in the context of surface water sources - i.e. the Colorado River in the Southwest U.S. that is shared by 7 states and a portion of Mexico - but just as contentious can be conflict over shared groundwater resources, which is what I will focus on in this post because of both the importance of groundwater as a water supply in Southern Arizona (where I reside) and the importance of groundwater in terms of its interaction with the few remaining surface water sources in this area.

The two locations arguably of greatest importance in this regard, in Southern Arizona, are the upper Santa Cruz valley in the vicinity of Nogales, Arizona and the upper San Pedro valley, near Sierra Vista, Arizona. These are locations of historically rich riparian areas supported by perennial streams that depended on baseflow from adjacent aquifers to maintain streamflow during the driest parts of the year. These are also northward flowing rivers that travel from Mexico into the United States.

Baseflow to the Santa Cruz River has been significantly compromised by urban growth and development near the border with Mexico. Nogales, Arizona has a population of approximately 21,000 while Nogales, Sonora has an official population of about 200,000 but some estimates place the actual number closer to 300,000. Although residents on the American side of the border undoubtedly use much more water per capita than their poor neighbors in Mexico, the sheer numbers south of the border in addition to poorly maintained, leaky water systems result in significant groundwater use in Mexico. What Mexico does provide to the river/aquifer system, however, is effluent. This is why the Santa Cruz River, which historically was perennial over much of its course between Nogales and Tucson is currently perennial in two distinct stretches - north of Nogales and north of Tucson, where the flow is supported by effluent.

Among the management goals for the Santa Cruz Active Management Area (AMA), which encompasses the valley from Nogales north about 45 miles, is to maintain the riparian area and local aquifers. This goal is only possible with the contribution of the effluent from a border treatment plant that handles most of the sewage from Nogales, Sonora. North of the border, much of the historically irrigated acreage along the river has been retired to permit further population growth (which has been rapid in the past 20 years). Interestingly, pursuit of this goal requires recognition of the connection between surface and groundwater, something the common law in Arizona typically ignores. Hopefully the new residents of the area will appreciate the riparian area in their neighborhood and understand the potential impact future growth can have on that resource.

The story along the San Pedro River, about 40 miles east of the Santa Cruz, is similar in that the major factor impacting the aquifer (and hence the river) is rapid population growth. However, in this case the growth is almost entirely on the Arizona side of the border. This area is not within an AMA so there is little regulation of groundwater pumping under state law.

The San Pedro drainage located south of the border is still largely undeveloped apart from ranching and some mining so the focus of efforts to maintain the aquifer/river system has been in the vicinity of Sierra Vista, the largest city in the area and a rapidly growing community during the last several decades. There has been much concern about the fate of the San Pedro River since the creation of the San Pedro Riparian National Conservation Area in 1988. Fortunately the Federal Government has considerable leverage over the growing cities and towns in the area, not just because of the federal reserved water rights associated with the Conservation area but also because the main economic engine in the area is a military base, Fort Huachuca. The fort has been a leader in the region in promoting water conservation measures so that constraints on the local aquifer can be minimized. Local political and business leaders are terrified of losing the fort, resulting in an alliance of business, governmental, environmental, and military interests to ensure that river remains flowing (and the area continues growing).

So far they have conducted numerous studies of the river and aquifer, the connection between the two, and the sensitivity of the river to groundwater pumping in various areas. They have reduced per capita water use in the area, constructed projects to capture and recharge both stormwater and reclaimed water in an attempt to minimize the extent of the effects from local groundwater pumping (hopefully providing long-term protection to the river) and different organizations have purchased land adjacent to the river to retire irrigation rights, which provides the best short-term protection of the river, although there is still considerable pumping occurring adjacent to the river (again the issue of legally distinct surface and groundwater in Arizona rears its ugly head). But the biggest threat of all could ultimately be from climate change which might alter recharge patterns to the aquifer (less winter precip and more summer precip, meaning more flash floods that are less effective recharge sources than the widely dispersed, cold weather precip that historically occurred during winter months).

The saving grace for the San Pedro is likely to be the fact that there are lots of people watching to see what happens and lots of data is being collected, so hopefully someone will notice when changes need to be made in the region and they will have the necessary data to support those changes. But the population growth that has already occurred or has been approved for the near future could be too much for the aquifer to support long-term. That would mean augmenting water supplies in the region somehow. They have already been looking at that but funding will be a significant issue.

Tuesday, March 17, 2009

Raising global awareness of water issues

This is from an email I received earlier this week:
I'm collaborating with ONE DROP an NGO launched by Cirque du Soleil founder (Guy Laliberté) to realize his dream of fighting poverty by providing access to clean water to the world's population.

To get one step closer to this remarkably ambitious goal from March 16th to March 22th ONE DROP will be raising awareness for the Global Water Crisis and World Water Day (March 22nd) across Blogs, Digg, Tweeter, Facebook and many other social networks in an upcoming social media effort called Ripple:


This Friday March 20th an unprecedented rally event will be held on Digg: DIGG FOR WATER asking as many supporters as possible to dig our cause. This effort will hopefully allow us to collectively take the front page on Digg and to make Web audiences sensitive to the urgency of action to tackle Global Water Crisis.

Could you please be so kind to help us spread the word by providing some coverage to this story on Watering the Desert.

Thank you in advance!

All the best,

Andres Restrepo

This seems like a worthy cause. It's important to remember when we fret over our water problems in the developed world (i.e. an occasional lack of sufficient water, of a quality and at a price we are accustomed to, to meet all the demands we place on the resource) that there are billions of people in the developing world (where access to reliable sources of clean water is often one of the greatest luxuries) who would love to have our water problems.

Take a moment to check out their website and participate if you can.

Thursday, March 12, 2009

Three recent articles on Reuters about water problems in the West

Reuters News Service has been focusing on water a bit this week. Hard to say why. Maybe because it's National Groundwater Awareness week or maybe it's just because the State of California is all in a tizzy this winter over drought, climate change, ecological calamity, agricultural decline, etc. because there just isn't enough water in the state any more to meet all the competing demands being placed on it. If you haven't taken a look at the Aquafornia blog in a while you should, just to get caught up on the latest round of finger-pointing going on over there.

But back to Reuters. First there were two articles on Tues. the 10th, one discussing impending water crises in the West resulting from rapid growth dependent on occasionally unreliable water supplies and the second discussing the limited options available for water managers to stretch existing, thin supplies or augment supplies. Then on Thurs. the 12th, they carried an editorial, written by a former head of the California Department of Water resources and current water policy advisor for an environmental advocacy organization, comparing current water crises in the West with the current financial crisis - both caused by growth based largely on speculation (that the water would keep flowing in one case and money in the other). He makes some good suggestions for improving water use efficiencies in the residential sector but that's pretty small potatoes in the overall water picture.

If we want to adapt to new climate realities and maintain our quality of life we will need big changes in how water is allocated and priced (and those two things are highly interdependent) before too long.

Wednesday, March 11, 2009

Nifty new Google Earth tool

I was checking out a site called Circle of Blue today and came across a really clever plug-in for Google Earth. If you are a user of Google Earth, just follow the link above and look for "Click here to download the module". If you don't have Google Earth installed on your computer you will have to do that first.

What they have done is linked the data collected every 5 years by the U.S. Geological Survey on total water use in each state of the U.S. What you are actually seeing when you look at the data in Google Earth is average daily use of all water for each state compiled in 2000. These data sets compiled by USGS are really useful - I've used them for some of my research - but some of the data is a little inconsistent.

I sometimes forget how cool Google Earth is, but it is truly an amazing resource.

Monday, March 9, 2009

Min(e)d the Gaps

There was an interesting post on WaterWired that referenced a recent article in the Santa Fe paper, discussing the issue of ownership of underground pore spaces from which oil and gas had been extracted. Just so you know - I am a big fan of interesting and novel property rights issues and this is a gem.

Some quick background:
All sedimentary deposits are composed of mineral grains of various sizes intermingled with pore spaces that are typically filled with air or water, but sometimes contain recoverable quantities of oil or gas. This is true of unconsolidated deposits (loose sand, gravel, silts and clays) and consolidated materials (i.e. sandstone or shale), however the native porosity of hardened materials is often less than unconsolidated materials because some of the pore space will be filled in by mineralization (with hardrock the dominant porosity is often what is called secondary porosity, resulting from joints and fractures in the rock).

Under the common law of property the person who owns real property (land) owns everything within their property boundaries including the sky above and the earth below. This concept has been modified over time such that landowners cannot prevent airplanes or satellites from passing over their property and the subsurface estate can be split from the surface estate, so that a landowner may own the surface of their property but someone else owns what lies below or at least the right to extract any valuable minerals lurking underground. Much of oil and gas law is based on this split-estate concept.

The issue they are addressing in New Mexico (and also Wyoming, Montana, and perhaps Utah) is who owns the empty pore spaces remaining underground after the minerals have been extracted. This issue is coming to the fore right now because utilities and regulators are looking at old oil and gas reservoirs as possible places to store captured carbon dioxide as part of climate change mitigation measures. I find this interesting because of how it relates to the practice of using depleted aquifers to store water through aquifer storage and recovery (ASR) programs. With ASR there typically is no issue over pore space ownership because (by statute) the entity recharging water into the aquifer owns the water placed there (regardless of pore space ownership), although it usually requires ownership of some overlying surface land in order to put the water in the aquifer. There are probably some state-to-state differences because of differing rules regarding water rights, but I'm not going to get into that here.

With a split estate, the party owning rights to extract oil and gas, would typically only own the hydrocarbons within the pore spaces, not the actual pore spaces. The oil and gas industry is arguing to the contrary but most political support appears to reside with the surface estate owners who believe that once the oil and gas have been removed nothing remains for the extracting party to own. I suspect this is not an issue that has arisen in case law or been addressed by state statute, which is why legislators are addressing it now. But the oil and gas industry must be interpreting some law to make their case and probably have a plausible argument somewhere.

Another issue likely to have a significant role in resolution of pore space ownership questions will be liability for carbon dioxide storage projects. The power industry has been pushing Congress to limit or remove their liability in the event that a storage facility fails to contain the CO2. If a landowner owns the space in which the CO2 is stored they will want similar protection from liability. This would probably be resolved through contracting for use of the space once the ownership is worked out.

Finally, despite what the coal industry has been pushing about the viability of CO2 capture and storage (probably their only hope for survival in a post-carbon society) this is a largely untested technology with a lot of uncertainty associated with it. For more on that issue, check out this recent article in The Economist.

Wednesday, March 4, 2009

New post on water rate policies from "On the Public Record"

This is a fairly new blog by an anonymous civil servant in California that has become one of my favorites recently. It's called On the Public Record. One of the virtues of posting anonymously is that you can shoot from the hip and not worry too much about offending anyone, which this blogger certainly does.

He has a couple of posts from earlier today about the issue of water pricing and its use as a conservation tool - post 1, post 2, post 3. In the posts he jumps on people (mostly economists) who oversimplify the ability to reduce use by raising rates, by pointing some of the practical limitations of that policy.

Here are a few comments that I particularly enjoyed, but I encourage you to read all 3 posts in their entirety.

On the real meaning of our current "drought":
When everyone says “drought” and “shortage”, what we basically mean is “less then we’re used to”. We don’t mean, and won’t in the foreseeable future, “not enough to drink and bathe”. So far we’re not even close to that range. What we do mean is “not enough to use it like we’ve always been able to”, on lawns and embedded in our meat supply and on wasteful appliances and by deferring maintenance on leaky pipes.

Stating a very simple reason why conservation pricing has not been implemented in California:
... one side effect of Proposition 218 [in California], put forth by the Howard Jarvis Taxpayers Association, was that it became illegal to charge any household more than the costs of conveyance to that parcel. It was illegal to charge punitive rates to send a price signal to wasteful users . . . So you have all these economists telling districts they could solve their shortages by charging more for excessive use, and districts saying, we’ll get sued. It was illegal until six months ago.

And my personal favorite referring to some of the people who complain most loudly about being asked to pay the real costs of their lifestyle choices when water or sewer rates are raised:
... the truth is, most of those new fees are different forms of internalizing environmental costs. Someone who can’t afford to pay those cannot afford their standard of living. They’ve grown used to that standard of living under artificially low prices subsidized by the environment, but that is a false expectation. . . their fight is to impose the costs of their lifestyle, of which water is just one example, on anything else. The environment, most likely, or the collective as a second choice. Then I am not so sure that that lifestyle is such a valuable one that I care if they get to continue it. I am even less sure that I care enough to spend money supporting their lifestyles.

Is it harsh? Yes. Is it true? Also, yes.

Monday, March 2, 2009

Water & Wastewater Infrastructure, Supply, and Planning Study - Phase I report, part 4

The 4th Chapter of Vol. 2 of the committee report contains their recommendations for Phase II of the study, commencing later this month. This next Phase is envisioned by the committee as a transitional phase - leading to a larger regional discussion occurring in later phases of the study. For this reason, one of their first recommendations is that the existing committee complete its work on Phase II, then disband, so that a new committee with more regional representation and focus can pick up the next phases of the study. This sounds like a reasonable proposition. My suggestion would be to tie the incoming committee tackling Phase III, etc. in with a regional visioning process, as discussed in the December forum on land use planning.

This section then sets up a framework for the discussions in Phase II, outlining 3 broad areas of discussion:

1) Adaptive management - making better use of existing water supplies and drought planning
2) Comprehensive planning - matching land use planning with water resources planning, incorporating environmental uses of water in planning process, applying planning principles across jurisdictions in the area
3) Water resources and environment - development and/or acquisition of new renewable water supplies and (again) bringing the environment into the discussion of planning and water resources

As the report notes, they cribbed the term adaptive management from climate change discourse, which stresses the need to develop policies that permit adaptation to changing climate conditions. They seem to be stressing policy and regulatory strategies that will allow us to use our available water resources more efficiently, especially in the face of prolonged drought when supply options diminish. I like the fact that they address the issue of conserving for a purpose other than to permit continued growth - this is a complaint often made when people are asked to conserve - why sacrifice simply so more people can move here and impact our quality of life. The reality, as always, is far more complicated than that but it makes for a good soundbite. And it's an issue that has to be answered for more people to truly buy into the concept of conservation.

But, as they mention, the adaptation strategies discussed in this report are things many in the region are already looking at and trying to implement with varying success. I think the issue of adaptive management needs to be pretty open-ended. We may have strategies in place that will allow us to cope with shortages, or we may need an entirely new set of tools in the toolbox - adaptation includes recognizing when the existing models are not working and need to be altered or replaced.

Comprehensive planning is the monster task that lies ahead. We don't even know what it will take to do the kind of planning that is required. There are a few models out there (Envision Utah?) but we don't know how well they will work for us until we start trying things out. The issues the committee proposes to address in this context are focused on linking land use decision-making to water supply availability and guiding growth to the areas of the region best suited to accommodate that growth. I agree that land use decisions need to be made with an understanding of what is supported by available water supplies and infrastructure, but the issue of guiding growth to appropriate areas needs to be handled delicately. Mandating certain types or amounts of growth in given areas is a nice idea but always seems to result in unintended consequences and ends up being weakened by exceptions to avoid inequitable situations. Establishing policies that subtly effect the economic incentives associated with the where and the how of growth, while still not perfect, I think tends to produce more desirable results. Allow flexibility in the process and permit negotiation with developers to encourage them to think creatively in order to get their projects approved and built. This will produce quality growth in the community that hopefully should also be sustainable.

The final discussion area - Water Resources and Environment - feels to me largely a restatement of ideas covered in the two previous areas. Augmentation of water supplies fits in nicely with the regional planning approach discussed above and water for the environment was explicitly noted under issue two as a requirement for sustainable water supply planning. I think some committee members just felt really strongly about incorporating water for the environment in the discussion that they wanted it included in a discussion heading.

The format for Phase II is similar to Phase I (there will be a series of open public meetings where the committee will be presented technical information from various experts), but because the inventory aspect is over this phase will involve much more discussion of policy and less numbers, facts, and statistics. They are also planning to complete the meetings as fewer, longer sessions than occurred in Phase I. This should permit more in depth discussion of the issues involved, both among the committee members and with the public.

The meetings start in two weeks, so I'll follow up on this as they occur.