All the Groundwater Law you Always Wanted to Know, But Were Afraid to Ask

Courtesy of a link from Property Prof Blog I was led to this fantastic primer on Groundwater Law from Prof. Joseph Dellapenna at Villanova law.  One of the points he emphasizes, which I strongly agree with, is the idea that the shifting terminology used by courts has resulted in tremendous confusion about the nature of property rights in groundwater in most, if not all, jurisdictions.

When I tried to switch from being a scientist to being a lawyer I struggled mightily with the concept of creating static law by using words - which are highly mutable.  I came from a world where laws were often defined by equations that incorporated numbers and constants - immutable laws - and tried to find my way in a world where laws are subject to near-constant reinterpretation; words don't always mean the same thing to all people.  Crazy stuff, the law.  Hope you enjoy this article as much as I am.

Follow-up on Tribute development in Sierra Vista

The Daily Star has an article this morning about the big proposed development in Sierra Vista that has been the subject of some controversy lately over their water use.  I commented on this situation last summer when Arizona Department of Water Resources first ruled that the development does have an adequate water supply and could move forward in the permitting process.  This latest article was prompted by a ruling from an administrative law judge who determined that the Department had correctly applied Arizona law in making their decision.

Image courtesy of usbackroads,blogspot.com

 The article correctly states that under Arizona law the opponents of this development have no basis for challenging the approval of the water supply, hence the ruling from Judge Shedden.  Where they might get some traction is in federal court.  But there are no guarantees that a federal court will act in time to prevent the development or that it will even take action to stop the development if it does.  The opponents clearly have an uphill battle here.  If this does go to federal court I would expect to see our state legislature trying to pass many stupid laws and resolutions condemning the potential trampling of state sovereignty by the federal government.  That's just how we roll in Arizona.

Quality Scholarship on the Issue of Property Rights in Groundwater

This article was posted on the Environmental Law Prof blog recently.  I'll bite on anything that discusses the nature of property rights in groundwater and this article is a very good one.  The author is a former scientist (geologist) turned lawyer (now law professor), so we have something in common.  It's a very thorough discussion of how groundwater rights are treated in the context of takings jurisprudence, using last year's decision (pdf) from the Texas Supreme court in the case of Day v. Edwards Aquifer Authority as the jumping off point. At the time the ruling came down there were many (myself included) who felt it was a blow to prospects for sensible groundwater regulation in Texas.  Finding that landowners have a constitutionally protected right (potential) to groundwater in situ is a strange concept in nearly every state in the U.S. except Texas.  But Prof. Owen believes that this is not a death knell for future regulation of groundwater use.  He believes that property rights in groundwater and sensible regulation of those rights can co-exist.  I hope he is right.

Is ADWR Impotent or Just Arizona Water Law?

From today's AZ Daily Star, a piece by Tony Davis about Arizona Department of Water Resources (ADWR) recent decision to approve the water supply for a very large new development in the Sierra Vista area.  For a little background on water issues in this part of Southeast Arizona check out my previous posts here and here.

Before I take a look at what this decision means I have to point out one erroneous statement from the article.  In the 3rd paragraph where it says "the department's decision gave a clear signal that it doesn't agree with the BLM's position opposing this pumping ..." that is not exactly a correct interpretation of what ADWR was saying (just based on what was reported here because ADWR doesn't have the decision posted to their website as of this afternoon, when I last checked).  As stated under the reasons cited for the ruling, ADWR simply doesn't have the authority to consider the effect of federal reserved rights on an application for a designation of adequate water supply where the application involves pumping groundwater and the federal reserved rights at issue are for surface water.  Arizona law doesn't recognize the connection between surface water and groundwater, except under very narrow circumstances.  And the criteria that ADWR can consider in evaluating the application are pretty clearly spelled out in the administrative code.  I've never noticed anything in there about compliance with federal law as it pertains to federal reserved water rights.

Colorado Considers Adopting Public Trust Doctrine?

I came across this link courtesy of Aquadoc's Weekly Round-up of water news.  Seems a few people in Colorado are dissatisfied with their current system of reasonably secure property rights in the use of the state's water.  They are placing initiatives on the ballot later this year that would formally adopt a strong public trust doctrine.  The texts of the proposed initiatives can be found here and here.  Essentially what this would do is still allow you to have your water rights - whether derived from prior appropriation or whatever.  But those rights would always be subject to rights of the state to protect the water on behalf of the people.  So if someone decides that a world-class trout fishery is more important to the state than a valley full of farmers, the state could step in (theoretically) and tell the farmers to stop diverting water for irrigation so that the trout stream can thrive.  This is a concept that exists in many places but only rarely has it been found to trump existing property rights.  In this case, the wording of the initiative states pretty clearly that the public trust is superior to private property rights.  I don't see this going very far.

The Failed Promise of Indian Water Settlements, Part II

Taking advantage of a sick day to finally get around to this thread again.

So you may remember from my previous post that it was the Arizona Water Settlements Act (passed in 2004, became law in 2007) that resolved a couple of the most significant Indian water rights claims in Arizona, as well as settling several other pressing issues in allocation of Central Arizona Project (CAP) water and costs associated with the project.  The legislation enacting those settlements allocated both water and money to help the tribes involved purchase their new water from CAP and put the water to use on their reservations, mostly in irrigation projects.

The Failed Promise of Indian Water Settlements, Pt. 1

If you know me, or know this blog well, you might be aware that I work for an Indian tribe in Arizona.  While my views expressed in this blog post are clearly informed by my work with that tribe, they in no way express the views of the tribe itself and I write this not as an advocate for any specific tribe but to shed light on some challenges for tribes in Arizona, specifically, but my observations may have applications outside Arizona.

I will try to present this story in two parts - there's too much for one post, maybe too much for two, but that remains to be seen.  I'll start by laying out the history and rationale behind the existing water rights settlements (focusing on Arizona because that's what I'm familiar with) in this post, then explaining why they amount to failed promises in the next.

In my work I have been involved in the implementation of one very significant water rights settlement, as well as participating in negotiations for another settlement being sought by this same tribe.  I have learned a great deal about how such settlements work and how they are developed.  I have also learned that the promise of those settlements - intended to compensate these tribes, who were in Arizona, using water to support their communities, economies, and cultures for hundreds (if not thousands) of years before the arrival of non-Natives and their boundless thirst for water to support their farms, mines, and cities - is currently proving to be yet another of many empty promises made by the U.S. government to tribal sovereign nations over the past 200 years.

The Arizona Water Settlements Act (AWSA) was enacted in 2004 (but not actually implemented until 2007).  It is a complex, often cumbersome piece of legislation that attempted to resolve, in a single legislative action, several lawsuits (via negotiated settlement agreements that became part of the legislation), several pending Federal reserved water rights claims in the largest surface water adjudication (this link goes to a webpage with all relevant documents in the adjudications) in Arizona, the repayment obligations of the State of Arizona to the federal government for construction of the Central Arizona Project (CAP) and the reallocation of hundreds of thousands of acre-feet of Colorado River water that had been under long-term contract to several irrigation districts in Arizona.  What is truly amazing is that most of that was actually accomplished.

The tribes that received settlements through this legislation were the Gila River Indian Community and the Tohono O'odham Nation (the links provided go to the Arizona Dept. of Water Resources website, which has comprehensive summaries of each settlement), and to a minor extent, the San Carlos Apache Tribe.  The Gila River tribe received a water entitlement that totaled over 650,000 acre feet of CAP water, groundwater, effluent, and other surface water sources.  The Tohono O'odham received 66,000 acre feet of CAP water plus rights to 13,200 acre feet of groundwater.  The legislation authorized use of money from the Lower Colorado River Basin Development Fund (sort of a slush fund for lower basin projects left over from the Colorado River Basin Project Act) to pay for much of the cost of the CAP water that was included in the settlements, as well as for construction of irrigation projects to put that water to use.

The intent of the settlements was to compensate the tribes for the fact that their surface and groundwater supplies were taken, over many years, to support the growth of Anglo communities.  The settlements incorporated both water and money - the water intended to provide the tribes with a resource for economic development; the money to enable purchase of the water (and development of things like farms to use the water).  The money was necessary because, in most cases, the water included in the settlements was Colorado River water, delivered by the CAP.  The delivery costs for this water are significant.  This water source was necessary because the surface water previously relied on by tribes is long gone and groundwater was well on its way to being in the same state.

In exchange for agreeing to these settlements the tribes were giving up all future claims to water as compensation for what was lost.  They were supposed to be getting water and the ability to use that water to compensate them for the considerable lost economic opportunity that resulted from having their water taken previously.

These are the things that were promised to the tribes in return for settling their water rights claims.  In the next post I'll lay out why I think the government may soon fail to deliver on that promise.

The Really Big News from the Prescott/Big Chino water hearing

This was another article that came out last week, discussing the conclusion of the hearings discussed below - this time from the Verde Valley paper. Sandy Fabritz-Whitney is the assistant director of ADWR, who testified at the hearing about the agency's role in the process and admitted that the state has been looking into the possibility of creating an Active Management Area (AMA) that would include the Big Chino area. This would be the first AMA created by the State since the Santa Cruz AMA was authorized to form by splitting from the Tucson AMA in 1994. All original AMAs were created by the Groundwater Management Act in 1980.

This might just be a way for the state to encourage local stakeholders to get their act together in this area or there may be genuine local interest in having the state manage the aquifer. Either way I suspect the announcement sent some shockwaves through that part of the state if they were as unaware of this development as I was. I can't wait to hear more on this.

Chino Valley Town council candidates to protect well owner's property rights (what property rights?)

This little piece showed up in the Chino Valley Review last week, describing a candidate forum for the Chino Valley Town Council. Chino Valley is a very small town just north of Prescott, Arizona and happens to be in the vicinity of where Prescott is planning to pump groundwater that will be transported into the Prescott area to support current and future growth. If you're interested I have posted previously on this project and some of the interesting legal issues that have some up because of it here and here.

I really love the way local politicians pander to their constituents by talking about their property rights in groundwater - when those rights consist of nothing more than the right to pump water out of the ground faster than your neighbors, who are trying to do the same thing. The property rights claims are always made when someone mentions the possibility of metering peoples wells to determine how much water they are using - this is just the first step in regulating how much water people can pump, they say. I guess they will know if they are pumping too much when they have to deepen their wells every 5 years. In this case Prescott is asking people to meter wells in the area, presumably so they can determine the sustainable yield of the aquifer, but those intrepid town council candidates see right through that ruse:

As for metering private wells, Schmidt said, "The metering idea comes from Prescott so it can get more water. Our private wells have no impact on Prescott."
Another candidate, Linda Hatch, said, "I don't think it (metering of private wells) will happen. If the wells go dry the town will offer them an opportunity to go on the town's system."
Candidate Robert Justice said metering of private wells is not the way to go. If a person's well goes dry they will have options.

Their big concern is that pumping by Prescott will dry up individual wells and they might be right, because Prescott has the same "property right" in the groundwater that they do, but they also have the resources to put in large, deep wells with high capacity pumps - giving them a heavy-duty property right.

So these folks are basically saying: there's no need to meter your pumping, because if everyone is pumping too much their wells will go dry and we'll hook you up to the city water system. What they don't mention is that those people will then be paying a lot more for their water and ... their water use will be metered (unless they have flat-rate water service up there). In other words they're happy to talk about protecting your water rights to get your vote even though they acknowledge that those water rights really aren't worth a damn. Do people really fall for this stuff?