The Hydrologic Cycle http://nd.water.usgs.gov/ukraine/english/pictures/watercycle.html

1
The Hydrologic Cyclehttp//nd.water.usgs.gov/ukr
aine/english/pictures/watercycle.html
2
Water as Property

• Water is unique. Why?
• It is a moving and cyclical resource
• Water is a common pool resource
• States generally claim ownership over water
• But, States have a trust responsibility to manage
  water resources to protect the public interest
• Water rights are usufructuary
• Private persons obtain the right to use water
• They dont own it in the classic sense of
  property

3
Managing Water is Complicated

• The amount of the resource is not fixed over time
  like other resources
• Unpredictable seasonal cycles and variations make
  the availability of water at any given time
  uncertain
• But, water is essential to society
• We have plenty of water, but
• We dont always have it where we need it
• Some of it is contaminated or unusable
• And our legal system does not always lead to the
  efficient and fair distribution of water
• The global water crisis is a management crisis

4
Water and Geography

• Plentiful water in the East made it possible to
  radically transform the Eastern United States
• Reclaiming the West has been much harder (and
  much more expensive)
• Despite hundreds of dams, some of an almost
  unthinkable scale, much of the West remains a
  vast undeveloped landscape

5
Variability of Rainfall

• From rainforests to deserts
• Scarcity may occur even with abundant supplies if
  you cannot get water where it is needed
• Global rainfall
• http//www.cpc.ncep.noaa.gov/products/fews/
  globe/anomalies.html

6
Water and Pollution

• 1.1 billion people lack access to an improved
  water supply
• 2.4 billion lack access to improved sanitation
• In 2000, there were an estimated 2.2 million
  deaths due to water-borne diseases
• In the United States, we take clean water for
  granted
• But note that our water systems are susceptible
  to terrorist attacks

7
Cadillac Desert

• Water has made the development of the Western
  United States possible
• But, water is available where it is needed in the
  West only because of elaborate reclamation
  projects
• Projects capture spring snowmelt
• The scale of mountain runoff during the spring is
  hard for Easterners to imagine
• Consider the political importance of water
  projects
• Still, it is a myth that the West is running out
  of water
• In many states 95 or more of the water is going
  to irrigate low value crops

8
The 100th MeridianImage courtesy of Geography at
About.comhttp//geography.about.com
9
Precipitation Map of the U.S.http//www.doi.gov/w
ater2025/precip.html
10
Uses for Water

• Instream
• Fish and wildlife recreation ecosystem services
  (like water purification) navigation
  hydropower dilution
• Out of Stream
• Irrigation municipal water supply industrial
  uses

11
The Colorado River Basinhttp//biology.usgs.gov/
st/imagefiles/e063f01.htm
12
What Can the Great Lakes Basin Learn from the
West?

• How is the Great Lakes Basin like the Colorado
  River?
• How is it different?
• Are the differences so great that the Colorado
  River system cannot offer relevant insights?

13
Water Institutions

• From whom do people get water?
• Compare farmers with industrial users with small
  domestic users with city residents
• Note that quasi-governmental institutions play a
  significant role in many parts of the country
• From drainage districts to irrigation districts
  to water and power districts to sanitation
  districts
• Ball v. James holds that these districts are
  generally not subject to a one-person, one vote
  standard!
• Voting is often done by acreage.

14
The Nature of Water Supplies

• People who use water either have their own water
  right or they may rely on someone elses water
  right
• Water rights are sometimes an incident of
  property ownership, and are sometimes granted by
  government agency through a permit
• Generally, no one pays for water. Water is free.
  Our water bill pays for the infrastructure
  needed to clean the water and bring the water
  into our home. The same is essentially true for
  farmers

15
Water Institutions

• Where do people get there water?
• Urban and suburban residential users typically
  get their water from government or
  quasi-governmental agencies
• Municipalities, water districts
• Rural users often have private wells
• Farmers usually get their water from various
  types of water districts, including conservancy
  and irrigation districts
• Industrial users sometimes tap into municipal
  with small domestic users with city residents or
  sometimes have their own water supplies

16
Water Institutions

• Joint ditches (informal contractual)
• Mutual ditch companies (typically non-profit
  corporations)
• Private companies (e.g., Ohio American)
• http//www.oawc.com/awpr/ohaw/start/index.html
• Special purpose districts (quasi-governmental)
• Irrigation districts and water conservancy
  districts (like snowflakesno two alike)

17
Special Purpose Water Districts

• AdvantagesPreferred entities for federal
  contracts
• Powers of eminent domain
• General fee assessment powers (Tax power?)
• Sanctioned by court order
• Special purpose districts are typically approved
  by order of a local district court
• Those who prefer not to be included can object on
  grounds that they will not benefit (but it can be
  tough to opt out)
• Fallbrook Irrigation District v. Bradley (Maria
  Bradley lost her land for refusal to pay
  assessment

18
Ball v. James, 451 U.S. 355

• Salt River Project District
• Officials elected by voters who receive one vote
  for each acre of land they own in the district
• District includes more than one half the
  population of Arizona
• Persons who own less than one acre do not receive
  a vote
• District subsidizes water works with electricity
  sales
• Is it a public utility?
• Can issue tax exempt bonds
• Property is not taxed
• Has eminent domain authority
• Is it subject to one person, one vote rule?
• Would it matter whether the district has ad
  valorem (property) taxing power. Why?

19
Irrigation Schematichttp//www.doi.gov/water2025/
irrigation.html
20
Center-Pivot Sprinkler Patternshttp//www.ars.u
sda.gov/is/graphics/photos/k4904-20.htm
21
Center-Pivot Sprinklerhttp//www.ers.usda.gov/Bri
efing/WaterUse/Images/cp-spray3.jpg
22
Furrow Irrigationhttp//www.ers.usda.gov/Briefing
/WaterUse/Images/furrow1.jpg
23
Earthen Ditchhttp//www.co.union.oh.us/soil-water
-conservation/ditch_maintenance.htm
24
Parshall Flumehttp//wwwrcamnl.wr.usgs.gov/sws/fi
eldmethods/Images/instflum.jpg
25
Siphon Irrigationhttp//www.ers.usda.gov/Briefing
/WaterUse/Questions/glossary.htm
26
Gated Pipehttp//www.ers.usda.gov/Briefing/WaterU
se/Images/gated-pipe2.jpg
27
Valuing Water

• Consider the value of water to community at
  Put-in-Bay
• Toledo Blade
• August 25, 2004
• Put-in-Bay's predicament AN OUTBREAK of
  gastrointestinal illness that seems to have South
  Bass Island and Put-in-Bay as a common link is in
  its second week without a definitive explanation
  or answer. Hopefully, the public can be reassured
  that an "A team" of investigators appears to be
  closing in. The number of people who say they
  became ill after visiting the popular resort
  island in Lake Erie off Port Clinton passed 750
  on Monday, some of them from as far away as
  California, Florida, and Texas.

28
Externalities and the Cost of Water

• Consider the vast costs that are imposed by
  externalities on our water supplies
• The bill for making our water clean enough to
  drink is in the trillions of dollars
• But the majority of these costs are imposed by
  humans. Society accepts pollution from a wide
  range of sources -- farms, factories, wetland
  removal, development and none pay for the costs
  they impose on water supplies
• They dont pay for the direct costs of treating
  the water to remove the pollution
• And they dont pay the indirect costs associated
  with lower value for the water resources as a
  recreational resource
• Why?

29
U.S. Dam Policy

• 5,500 large dams 100,000 small dams
• 95 of all dams are private but the largest are
  all public
• Why build dams? What are the benefits?
• Hydropower
• Irrigation (store water for when needed)
• Flood control
• Flat water recreation

30
Environmental Cost of Dams

• Severe ecosystem disruption
• Seasonal flows disrupted
• Flow itself disrupted
• Temperature changes
• Trap stream sediment
• Consider the Colorado River
• Adverse impacts on wildlife and riverine habitat
• Disruption of fish runs
• Salmon in Pacific Northwest

31
Other Costs

• Promotes rent-seeking behavior
• Dams are often built even when they cannot
  possibly be justified on economic grounds
• Disrupts markets and interferes with efficient
  choices
• Decommissioning costs

32
Government Role

• The big dams are all subsidized by the government
• Bureau of Reclamation
• Army Corps of Engineers
• Tennessee Valley Authority
• Consider the public works nature of many of the
  projects
• Why were subsidies necessary?

33
Bureau of Reclamation

•  Reclamation Act of 1902
• Allowed interest free loans for water projects to
  be paid over ten years
• Available to farmers who owned no more than 160
  acres and lived on the land (residency)

34
1939 Amendments

• Extended pay back period on interest free loans
  to 50 years, which amounted to a 90 subsidy
• Rollover policy allowed the Bureau to extend the
  50 year period to the time the last unit of a
  project was completed
• The result has been that in some cases the pay
  back period extends out for nearly 100 years
• Specifically authorized shifting costs from
  irrigators to electrical consumers
• Broad authority for further subsidies (water
  service contracts) which allow Bureau to share
  construction costs
• 160 acre limit honored in the breach (By 1979,
  more than 75 of water furnished from Bureau
  projects was going to farms exceeding 160 acre
  limit.)

35
Central Valley Project Example

• Rollover policy CVP first authorized as a
  federal project in 1937. Repayment has been
  extended through 2030
• According to Natural Resources Defense Council
  study, subsidies for CVP amount to 300
  million/year -- 183/acre . Highest subsidies
  going to Westlands which was fouling Kesterson
  Wildlife Refuge
• Subsidies for surplus crops. In 1980's 59 of
  CVP land was growing surplus crops.

36
1982 Reform Act

• Abolished residency requirements
• Extended acreage limit to 960 acres
• Allowed leased lands, but "full cost" pricing for
  tracts in excess of 960 acres
• Farmers had to renegotiate under the new law by
  1987 or be subject to full cost pricing for all
  lands in excess of 160 acres.
• Peterson v. United States, 899 F.2d 799 (9th Cir.
  1990) Court upheld the "hammer" clause in
  Reform Act. Court found that water users did not
  have a vested contract right to the water (beyond
  160 acres) at the contract price.

37
U.S. Army Corps of Engineers

• Much more prominent in the East and Midwest, but
  some presence in the West as well
• Projects not so much for irrigation, but rather
  for flood control, hydropower, and navigation
• As with the Bureau many Corps projects cannot be
  justified economically
• Corps introduced river basin accounting whereby
  the vast subsidies to one project could be hidden
  by lumping it together with other projects (like
  hydro) that make a lot of money

38
Colorado River Grand Canyonhttp//www.nps.gov/gr
ca/grandcanyon/maps/
39
Bureau of ReclamationPhoto The Glen Canyon
Damhttp//www.usbr.gov/power/data/sites/glencany/
glencnyn.jpg
40
Lake Powell (2003)The white area shows the
high-water mark from 1980Image courtesy of Nieka
Apell and Ken Varnumhttp//varnum.org/utah/index.
html
41
The Proposal to Drain Lake Powell

• Pros
• Ecology
• Fish
• Waste
• Silt
• Risk of spillway failure
• Cons
• Silt threat is overstated
• Restoration will take centuries
• Waste is overstated

42
Denver Post July 5, 2004

• Plummeting water levels in Lake Powell have
  drastically slashed electricity generation at the
  reservoir's Glen Canyon Dam, forcing power
  authorities to cut deliveries to utilities from
  the Front Range to Provo, Utah.
• Federal officials fear that 100 million worth
  of hydropower generated annually by Lake Powell
  could dry up completely by 2009 - if dam managers
  continue releasing water at pre-drought rates.
• The five-year drought has already drained Lake
  Powell to 43 percent of capacity .That lost
  "hydraulic head," has slashed the dam's
  generating capacity by some 30 percent.
• Lake Powell was 95 full at the beginning of 2000!

43
Santa Fe New MexicanSeptember 10, 2004

• 20 million plan for generating station in
  drought-stricken Lake Powell
• The article discusses a 20 million proposal to
  drill new tunnels into the sandstone walls to
  divert water to the Navajo Generating Station for
  cooling water. The plant helps run the pumps
  needed to deliver Colorado River water to the
  Phoenix area
• Current tunnels may go dry if Lake Powell drops
  another 100. If the drought continues the water
  may drop that much by 2006. This would also
  force closure of the hydro station.

44
Water Allocation Law

• Riparian systems have historically dominated the
  Eastern United States
• Prior appropriation systems have historically
  dominated the West
• Many Eastern states are moving toward permit
  systems that arguably have more in common with
  prior appropriation law than riparian law
• And Western states now clearly recognize instream
  uses as deserving of protection

45
Harris v. Brooks

• Mashburn (Harris lessee) operates a boating and
  fishing camp
• Brooks irrigates a rice crop
• Brooks use of water dropped lake levels to the
  point that Mashburn had to give up his business
• Suppose that Brooks is required to give up
  farming to provide water for Mashburn
• Who wins? Is this the best result? The most
  efficient result?

46
Classic Riparian Doctrine

• Who is entitled to riparian water rights?
• What limits, if any, apply to the place of use?
• On-tract" limitation, but most states allow
  off-tract use if no objection by other riparians,
  or if no harm, or if reasonable
• Rights must be used in watershed of origin
• How much water can a riparian use?
• Natural flow theory evolved to reasonable
  use/correlative rights theory
• More recently, some states follow Restatement
  (2d) of Torts test
• Rights do not depend on extent of riparian
  frontage, but that may affect what is deemed
  reasonable
• For what purposes?
• Absolute right to use water for domestic purposes

47
The Nature of Riparian Rights

• Right to make reasonable use of water
  (correlative with all other riparians)
• Right to use surface for recreation, fishing,
  boating
• In most jurisdictions extends to surface of
  entire water body, not just frontage or wedge
• Right to wharf out
• Requires federal permit on navigable waters
• Surface rights and wharfing rights apply across
  the United States regardless of water allocation
  doctrine

48
Restatement of Torts 850

• Liability Rule Riparian is liable for
  unreasonable uses that cause harm
• No cause of action unless harm occurs

49
Restatement of Torts 850A(A balancing test)

• (a) reasonableness of use
• (b) suitability to watercourse
• (c) economic value
• (d) social value of use
• (e) extent and amount of harm
• (f) practicality of avoiding harm by adjusting
  uses or methods
• (g) practicality of avoiding harm by adjusting
  quantities used
• (h) protection of existing uses
• (i) justice of requiring person causing harm to
  bear cost. (Coase would say these are reciprocal
  harms.)

50
Whats wrong with the riparian doctrine?

• It lacks certainty. How so?
• It imposes artificial limits on place of use.
  How so?
• It is inefficient. Consider how conflicts are
  resolved in riparian jurisdictions.
• Should the entire doctrine be scrapped?
• What are the alternatives?

51
Q D 4 What lands qualify as riparian?

• Source of title Only those tracts of land
  that have also included riparian lands qualify
  for water rights
• Unity of Title All tracts of land that are
  presently riparian qualify for riparian rights
• Note however, that riparian rights can be severed
  by an express conveyance of such rights.
• The grantee stands in the shoes of the riparian
  grantor.

52
Botton v. State (note 7)

• State owns a small tract of land with a boat
  launch and access for fishing on Phantom Lake a
  63 acre lake that is non-navigable for title
  purposes
• Riparian owners complain that allowing public
  access is an unreasonable exercise of the States
  riparian rights
• Is the State like any other riparian for purposes
  of the law? If not, why not?

53
Protecting Streams in Riparian States

• Note that, in theory, only riparians can protect
  natural stream flows and water levels in riparian
  states
• They can assert reasonable rights to fish,
  recreate etc.
• They can claim that uses that harm the public
  interest are not reasonable
• The State, as trustee, might also be in a
  position to make such public interest claims
• States can also exert political pressure on users
  to protect stream flows

54
Eastern Permit Systems

• Misleading to call them regulated riparian
  systems
• The fundamental principal that water rights
  attach to riparian land is generally rejected
• In its place, water users are required to obtain
  a permit
• While temporal priority is not determinative, it
  is often a consideration in whether to grant or
  renew a permit
• Permits are often limited to a term of years
• Note that the Charter Annex proposal would
  largely move the Great Lakes States toward this
  type of system

55
Permit Systems

• Approximately 19 Eastern/Midwestern states have
  some kind of permit system but they vary greatly
• The chief advantage is that they allow the State
  to make a judgment about adverse impacts BEFORE
  the use goes forward
• Under the riparian systems once a use has
  commenced, and reliance on that use has
  developed, it becomes very hard to force changes
• Moreover, it can only be done in court
• Ohio Revised Code 1501 (permits) 1521
  (registration)
• http//www.dnr.state.oh.us/water/orclaw/ORC_all_ma
  in.htm
• http//www.dnr.state.oh.us/water/orclaw/waterwithd
  raw_law_main.htm

56
Franco-Am. Charolaise, Ltd. RB v. Okla. W

• City wants to increase appropriation for
  municipal purposes riparians claim that the
  City's use interferes with their reasonable
  riparian uses.
• Legislature passed law in 1963 abolishing unused
  riparian rights
• Under this law, pre-existing riparian rights had
  to be perfected under statutory mechanism
• Court finds that the legislation effected a
  taking in violation of State constitution
• Is an unused riparian right a vested property
  right?
• Consider the nature of water rights
• Dissent suggests riparian rights are subject to
  limits and even forfeiture. Majority
  misperceives the denominator

57
Compare In Re Waters of Long Valley Creek

• Stream adjudication process (California)
• Ramelli claimed unused riparian rights.
• Court found that uncertainty of unused riparian
  rights creates problems for state water
  management.
• Court acknowledged that State cannot
  constitutionally extinguish unused riparian
  rights
• Nonetheless, the Court allows the State to
  subordinate unused riparian rights to other uses
  
• This effectively extinguishes them. Why?

58
Prior Appropriation

• Dominant system in the Western U.S.
• Basic principles
• Water occurring in natural condition is held by
  the state, in trust for the people
• Excludes diffuse surface water unconnected
  groundwater
• Private users can acquire a vested right to use
  water for a particular purposes
• Water rights limited to beneficial uses
• Priority of appropriation gives the better right
• first in time, first in right
• Usually determined by date of permit application
  (compare Colorado)
• Senior rights must be fully satisfied before
  juniors receive water (No sharing in times of
  shortage)
• Riparian rights to wharf out and use water for
  recreational purposes remain

59
Historical Context

• Mineral rights in Western mining camps were
  acquired by the first person to possess and
  maintain the claim
• Water was needed to process minerals
• Because limited supplies were available in many
  parts of the West, water was allocated in the
  same way as minerals
• When the farmers began settling the West, they
  realized that the system devised by the miners
  was far better suited to their interests than the
  riparian system
• They received secure and often very generous
  rights at the expense of future settlers

60
Legal Rules and Issues

• Beneficial use is the basis, the measure, and
  the limit of the water right.
• May be relevant to type of use and quantity of
  water
• Water quantity relates to waste (duty of
  water)
• Rights are vested but amount of water may be in
  flux
• While priority typically determined from date of
  application, paper rights are not enough
• Change of use or place of use allowed only if no
  injury to all existing appropriators
• Water rights may be lost through non-use
• Abandonment
• Forfeiture
• Problems relating to instream flows
• Application of the public interest standard

61
Other Related Issues

• Hybrid systems
• Along 100th meridian and on West coast
• Tributary groundwater
• Interconnected with surface water
• Conjunctive management and use
• Federal reserved water rights
• Implied rights associated with reserved lands
• Pueblo rights and prescriptive rights are rare
  (and thus not especially important)

62
Visualizing the System

• Typically applies in areas with mountains which
  store winter snow and release large quantities of
  water in Spring
• Seniors tend to be downstream juniors upstream.
  
• makes it easier for juniors to steal senior
  water!
• return flows
• water quality issues

63
Typical Permit Process

• Water rights are issued by the State as follows
• Prospective water user files an application
• Application is approved by State water official
  (water permit)
• Water is used for the approved purpose (the
  applicant proves up on her right by demonstrating
  actual use for the approved purpose)
• Water right is granted
• Colorado is somewhat unique in having water
  rights issued by courts. In all other PA states,
  water rights are issued by a state water official
  or agency

64
Prior Appropriation

• Suppose only 20 cfs available
• Suppose 90 of water lost between Jones and
  Williams
• Suppose Compute, Inc employs more
• Does it matter that stream is dewatered?
• Does it matter that user is not riparian?
• Can Computer, Inc. buy Jones right?
• Can you acquire a water right that may be
  available only in wet years?
• Can you hold water without using it?

65
Storage (Reservoir) Rights

• Water from reservoirs raises unique issues
• Storage rights are generally for a volume of
  water
• Reservoirs are usually subject to the one-filling
  rule
• Must take water when told (generally in the early
  Spring) or it is credited against account
• Carry-over storage counts toward current
  allocation.
• Generally, the initial diversion from the stream
  is the one that must satisfy the priority
  requirement
• Secondary users of reservoir water generally fall
  outside the PA system

66
Prior Appropriation Criticized

• It may not make sense to fully protect an
  inefficient senior user at the expense of a more
  efficient junior user
• Sufficient certainty could be maintained by
  protecting the seniors right only to the point
  of maximizing efficient
• Does the prior appropriation doctrine have
  sufficient flexibility to adapt itself to
  changing values and needs?
• Is the doctrine too cumbersome to efficiently
  accommodate water transfers?
• Despite theory of state ownership, instream flows
  and values were historically ignored
• Changing today, but instream protections almost
  always suffer from late priorities

67
Beneficial Use

• The basis, the measure, and the limit of a
  water right
• Professor Neuman notes that concept is rarely
  used to demand true conservation
• But conceivably, it could be used to demand much
  more efficient water uses
• IID example

68
Imperial Irrigation District

• AREA SERVED
• Gross acreage 1,061,637
• Irrigated area 462,202
• Average Agricultural use per year 5.6 AF/acre
• (varies per crop and soil type)
• Water delivered thruAll-American Canal 3.0
  MAF/yr.
• http//www.iid.com/water/works.html
• NOTE Ninety-eight percent of the water IID
  transports is used for agriculture. The remaining
  two percent is then delivered to nine Imperial
  Valley cities, treated to safe drinking water
  standards, and distributed to residential water
  customers

69
Imperial Irrigation District

• Map
• http//www.waterrights.ca.gov/IID/IIDHearingData/L
  ocalPublish/IID_minority_121801.pdf
• Salton Sea was formed between 1905 and 1907 when
  poorly constructed irrigation canals burst and
  Salton Basin received almost the entire flow of
  the Colorado River for more than a year. The Sea
  has continued to exist as a result of runoff from
  IID irrigation

70
IID Case

• John Elmore (a farmer) owned land near Salton Sea
• Threatened with inundation by rising sea levels
• Water Resources Board requires IID to develop a
  conservation plan
• No doubt that the intrusion on IIDs water rights
  was substantial
• But it did not necessarily interfere with vested
  rights
• Water rights are limited to reasonable uses
• Using water for beneficial purposes may
  nonetheless be unreasonable
• Everything is in the process of changing or
  becoming in water law

71
Typical Permit Process

• Water rights are issued by the State as follows
• Prospective water user files an application
• Application is approved by State water official
  (water permit)
• Water is used for the approved purpose. (The
  applicant proves up on her right by demonstrating
  actual use for the approved purpose)
• Water right is granted
• Colorado is somewhat unique in having water
  rights issued by courts. In all other PA states,
  water rights are issued by a state water official
  or agency

72
The Public Interest

• Increasingly important in allocating water rights
• But application of public interest standard is
  uneven at best
• In granting permits to divert water, how should
  the States consider the public interest?
• Balancing/opportunity cost approach in California
  Code (page 761) is becoming more common
• Alaska code takes a similar approach
• Burden of proof is generally on the applicant
• The public interest arises in both initial
  applications and water transfers
• But see Sleeper case (N.M) and Dept of Ecology
  case (Wash.)

73
Instream Flows

• Many instream flows remain available to protect
  because
• Large downstream users demand that water remain
  in the stream to their headgate
• Many prized streams are in higher elevation
  lands, closer to the headwaters on public lands
  and above irrigation areas
• Early problems with States that required a
  diversion

74
Preserving Instream Flows in PA States

• Use the public interest standard, where
  available, to deny applications that would
  interfere with stream flows.
• Deny new applications on streams that would
  interfere with minimum flow levels
• Issue appropriations to State Game and Fish
  agencies or private parties for an instream use
• This last option is the most common although only
  a few states allow private parties to holds
  instream flows rights (See Thompson article)
• Efforts to reallocate existing rights to instream
  flows are controversial and they have not proved
  very successful.
• NOTE 3 Preserving stream flows in riparian
  states is easier in theory than in practice.

75
The Public Trust Doctrine

• Illinois Central RR. v. Illinois (p. 105)
• State legislature authorized the sale of the bed
  of a significant portion of Chicago Harbor (in
  Lake Michigan) to the railroad.
• Several years later the State repealed the
  legislation authorizing the sale.
• The Railroad sued, alleging that their rights had
  vested.
• The U.S. Supreme Court held that title to the bed
  of a navigable lake was held in trust for all the
  people and that the railroad grant was therefore
  revocable
• The State holds trust property as trustee
• Is the notion of the state as trustee for water
  resources applicable in riparian states?

76
Federal Water Projects in Californiahttp//www.
water.ca.gov/maps/federal.cfm
77
State Water Projectsin Californiahttp//www.wat
er.ca.gov/maps/state.cfm
78
Local Water Projectsin Californiahttp//www.wat
er.ca.gov/maps/local.cfm
79
Mono Lakehttp//www.parks.ca.gov/lat_long_map/def
ault.asp?lvl_id151type2
80
National Audubon Society v. Superior Court of
Alpine County

• Court tries to reconcile the public trust
  doctrine with the prior appropriation doctrine
• Is there a conflict? How does the court
  reconcile the two doctrines?
• How does the public trust doctrine affect
  California water rights?
• Does it apply to riparian rights in California?

81
Q D Mono Lake Decision

• Could parties have used beneficial use or
  public interest doctrines to limit LAs water
  rights?
• Note that the aqueduct was subject to a
  right-of-way issued by the federal government.
  Does that offer any possibilities?
• Suppose the Mono Lake brine shrimp had been
  designated an endangered species?
• Once LAs rights were readjusted, does LA then
  have a vested right to what remains?

82
Q D Mono Lake

• Can a State renounce its public trust in managing
  the States water resources?
• Consider that the State gives water rights to the
  first applicant without charge
• Does it matter whether the State claims ownership
  of the water?
• Whats the difference between public trust and
  public interest?
• Consider that public interest protections may
  affect a wide range of values impacted by water
  resource use
• The public trust arises from the publics
  ownership of the water itself

83
Groundwater

• Why is groundwater important?
• A much more significant resource than surface
  water
• If you consider only fresh water resources,
  essentially removing ocean water, ground-water
  accounts for 2/3 of the fresh water resources of
  the world
• If you further remove glaciers and ice caps and
  consider only ACTIVE groundwater regimes,
  groundwater makes up 95 of all of the remaining
  freshwater
• 3.5 comes from surface water and 1.5 from soil
  moisture

84
Confined vs. Unconfined Aquifers

• Confined aquifers produce artesian wells
• Potentiometric surface pressure surface.
• The level at which the water will rise in a well
  drilled into a confined aquifer.
• Unconfined or water table aquifers
• Water in a well in an unconfined aquifer will
  rise to the level of water table.
• Unsaturated zone (vadose/zone of aeration)
• Tension-saturated zone - capillary fringe.

85
Groundwater Concepts and Terms

• Cone of depression
• The inverted cone that forms around the pressure
  surface of an artesian well, or in the aquifer
  for a water table well.
• Groundwater is generally measured in gallons per
  minute (1 gpm .00224 cfs 446 gpm 1cfs)
• Porosity (amount of space in voids)
• Storativity depends on porosity.
• Permeability (ability to transmit water)
• Transmissivity depends on permeability.

86
The Perils of Groundwater Pumping

• Groundwater use is increasing at a much faster
  pace than surface water
• 2/3 for agriculture
• 11 for mining
• Groundwater mining more common
• Can cause subsidence and loss of storage
• Problems
• Mineral development breaches aquifers
• Bottled water industry focuses on headwaters
• Irrigation needed to satisfy the market
  (McDonalds French fries)

87
Groundwater Diagrams

• http//www.arc.losrios.edu/borougt/GroundwaterDia
  grams.htm

88
Aquifer Diagramwww.epa.gov/safewater/kids/wsb/354
.pdf
89
Cone of Depressionhttp//www.dnr.state.wi.us/org/
water/dwg/OpCert/HTML/chapter3/wells4c.htm
90
Saltwater Intrusionhttp//geopubs.wr.usgs.gov/fa
ct-sheet/fs030-02/
91
Groundwater Doctrines
92
Sample Aquifer5000 acre feet of water in
storage 500 AF annual recharge

93
Hubbard v. Dept of Ecology

• Hubbard had groundwater permits
• Conditioned upon requirement that they would have
  to stop pumping when water levels fell below
  minimum flows
• But the impact from the Hubbards pumping was
  minimal (0.004 of rivers flow during low flow
  4 gallons of every 100,000 gallons)
• Should Washington treat the groundwater permits
  as part of the surface water system?
• Note that Colorado has a similarly strict rule
• If the amount withdrawn will deplete the flow by
  0.1 within 100 years then it is tributary
  groundwater.

94
Conjunctive Management of Groundwater

• Term used to describe joint management of
  interconnected surface and groundwater systems
• The result in Hubbard allows surface water laws
  to trump groundwater laws
• This does not always lead to an efficient result
• Consider Templeton v. Pecos Valley (NM)
• Consider Alamosa-La Jara Water Users v.
  Gould(Colorado, 1983)
• Groundwater aquifers contained 2 billion acre
  feet
• Surface and groundwater was interconnected
• Junior well users interfered with senior surface
  users but plenty of water for everyone if
  everyone used groundwater
• Court required seniors to shift to groundwater to
  maximize use of water

95
Q D Groundwater

• Consider how the State of Washington might better
  address the Hubbards situation
• Consider the cumulative impact of small domestic
  users
• 15 million private wells
• If they average 25 gpm thats 375 million
  gallons/minute
• Problems of safe yield
• Usually defined to mean the amount of water you
  can remove without mining the aquifer
• Should States limit withdrawals to the safe
  yield?
• What if the aquifer has limited annual recharge?
• Colorado has a 3-mile test
• When a new groundwater application is filed they
  ask whether the aquifer within a 3 mile radius of
  the well would be depleted by more than 40 after
  25 years of operating the well

96
Water Federalism

• State is the primary authority on water resource
  management
• Do States own the water? At a minimum, States
  have regulatory power over water
• A long tradition of federal acquiescence in State
  control
• Arguably States are not owners in a proprietary
  sense
• Rather they serve as a trustee for a public
  resource
• Consider Irwin v. Phillips
• California Supreme Court adjudicates water rights
  as between two trespassers on the public lands

97
Federal Statutes

• Mining Law of 1866 recognized appropriative water
  rights of miners as against later patentees
• Desert Lands Act of 1877
• The Supreme Court suggests that the DLA severed
  the water from the public domain and made their
  allocation subject to State law
• Reclamation Act of 1902
• Requires Secretary of the Interior to follow
  State law in carrying out the Act
• Construed to mean that Secretary must seek State
  permits for federal water projects
• Was there any remaining role for the federal
  government?

98
Federal Authority Over Water

• Despite its acquiescence to State authority, the
  federal government continues to play an important
  role in water resource management
• Commerce power and regulation of navigation gave
  rise to Rivers and Harbors Act of 1899
• Corps of Engineers issues permits for
  obstructions to navigation on navigable waters
• Could Western States nonetheless impose prior
  appropriation on federal lands throughout the
  West?
• United States v. Rio Grande Dam suggests not

99
Federal Reserved Water RightsThe Winters
Doctrine

• Winters v. United States
• Milk River runs along northern boundary of the
  Fort Belknap Indian Reservation
• What was the purpose of the reservation of lands
  for the tribes?
• The power of the government to reserve waters
  and exempt them from appropriation under the
  state laws is not denied, and could not be.
• Why werent these reserved rights repealed by the
  Act admitting Montana into the Union?
• Extreme to believe that Congress would have
  repealed the reservation one year after reserved
• How much water was reserved for the Indians?

100
Q D Indian Reserved Rights

• What is the source of the governments power to
  reserve water?
• Under equal footing doctrine, Consider that a
  reservation is NOT a grant from the Indians
• Quantification of Indian Reserved Rights
• PIA standard for agricultural rights
• Instream flows for fishing rights
• PIA standard reserves a lot of water
• some judges seem inclined to change it
• 4-4 vote in In Re Adjudication of the Big Horn

101
Quantification McCarran Amendment

• What if a State wants to know how much water
  Indian Tribes hold?
• McCarran Amendment is a limited waiver of
  sovereign immunity
• Authorizes adjudication of federal water rights
  (Indian and non-Indian), but only in general
  stream adjudications
• But need not be an entire river system
• The Supreme Court has generally held that federal
  courts should defer to State courts in hearing
  these disputes.

102
Cappaert v. United States

• President Truman designated the Devils Hole
  National Monument in 1952 to protect an
  underground desert and a unique fish species
  the desert pupfish
• Cappaert petitioners own a large ranch where they
  grow crops and graze cattle
• They operate large groundwater wells that are
  drawing down the aquifer and causing level of the
  pool to decline
• Water rights were acquired after 1952
• The Proclamation reserved sufficient water to
  carry out the purposes of the reservation but
  no more
• Does the doctrine differ for non-Indian rights?

103
United States v. New Mexico

• Gila National Forest
• U.S. claims reserved waters for instream flows
  for aesthetic, recreational and fish preservation
  purposes
• Organic Administration Act of 1897 established
  forests for only two purposes
• to secure favorable conditions of water flows,
  and
• to furnish a continuous supply of timber
• NOTE Dissent suggests there are really three
  purposes
• MUSYA of 1960 expanded purposes for which forests
  were established to include outdoor recreation,
  range, timber, watershed, and wildlife and fish
  purposes.
• Court holds that water not reserved for the
  secondary purposes set out in MUSYA. Is this
  true?
• Was MUSYA properly before the Court? Is its
  holding dictum?

104
Reserved Rights in National Forests

• In New Mexico, the Court reasons that in the
  case of the Rio Mimbres, a river that is fully
  appropriated, federal reserved water rights will
  frequently require a gallon for gallon reduction
  in the amount of water available for water needy
  state and private appropriators.
• In the case of the Gila Forest, at least, this is
  almost certainly not true. Why?
• What was the basis for the dissent?
• Developments in fluvial geomorphology suggest
  that instream flows may be needed to secure
  favorable water flows

105
Reserved Rights in Riparian States

• What rules should apply?
• Consider the Great Lakes
• Numerous American tribes over 100 First Nations
• Do they all have rights? If so, how can they be
  quantified?

106
National Forests and Grasslandshttp//roadless.fs
.fed.us/maps/usmap2.shtml
107
Other Reserved Lands

• National Parks, National Monuments, National
  Recreation and Conservation Areas
• National Wildlife Refuges
• Wilderness Areas
• Potlatch decision was reversed on rehearing
• Wild and Scenic Rivers
• BLM Public Lands (unreserved lands)
• Military reservations

108
Reserved Rights by Legislation

• More and more, Congress (and the President)
  specifically indicates whether water rights are
  reserved
• Wilderness legislation
• Wild and Scenic Rivers legislation
• National monuments
• Often, legislation is held back because no
  resolution on water rights

109
Reserved Rights by Settlement

• Federal government settled with Montana for
  several Parks, Refuges, Wilderness Areas, etc.
• Can States settle with Tribes? Is the federal
  government an indispensable party?

110
Reserved Rights

• Does the federal government have an affirmative
  obligation to assert such rights?
• Public trust?
• Can the federal government be bound by state
  administrative proceedings?
• Are federal rights unfairly treated in state
  court system?

111
Problem Exercise Wilderness Water Rights

• Does the Wilderness Act create reserved water
  rights?
• See 16 U.S.C. 1131(c) 1133(a) 1133(d)(4)
  1133(d)(5)
• Central Idaho Wilderness Act
• Consider the way in which the Idaho Supreme Court
  decided the case and then reversed itself
• NOTE The federal government has not appealed the
  Idaho Supreme Courts second decision

112
Intersecting Federal Laws

• Clean Water Act
• Section 401 (State certification)
• Section 402 program (NPDES)
• Section 404 program (wetlands)
• Endangered Species Act
• Section 7 consultation
• Section 9 takings

113
Clean Water Act, 401State Certification of
Federal Permits

• For any applicant for a federal permit or license
  that may result in a discharge into the navigable
  waters of the United States
• State must certify compliance with effluent
  limits and ambient water quality standards
• This effectively gives States some measure of
  control over numerous federal projects, including
  dams, roads, mineral leases or licenses, timber
  sales, and perhaps even grazing permits

114
Clean Water Act, 402

• National pollution discharge elimination system
  (NPDES)
• A federal permit program for discharges into
  navigable waters from a point source
• State programs allow States to issue permits
• Different, technology-based standards established
  for pre-existing sources and new sources
• EPA has established emission standards for
  categories or classes of facilities

115
How does water quality impact water quantity?

• The solution to pollution is (sometimes) dilution
• Consider the Chicago Diversion
• Estimated to reduce the levels of Lakes Michigan
  and Huron by 6 cm (2 billion gallons per day)
• Changes the flow of the Chicago River so that it
  flows out of Lake Michigan rather than into Lake
  Michigan
• Flushing flows used to treat sewage water

116
Clean Water Act, 404

• Permits required for discharges of dredged and
  fill material into navigable waters
• Permits issued by the U.S. Army Corps of
  Engineers
• Normal farming, silviculture, ranching activities
  such as plowing, seeding cultivation, minor
  drainage, harvesting, and upland soil
  conservation practices are exempt
• Navigable waters have historically included
  wetlands
• Provide important ecosystem services, including
  water filtering and purification, groundwater
  recharge, flood protection, wildlife habitat

117
How do Wetlands Regulation and Water Rights Laws
Intersect?

• Many wetlands were historically drained for
  farmland
• The Great Black Swamp
• On the other hand, flood irrigation practices
  sometimes create wetlands, at least temporarily
• Groundwater use can lower water tables and drain
  wetlands

118
SWANCC v. U.S. Army Corps

• An old, abandoned sand and gravel pit had evolved
  into a forested area with seasonal and permanent
  ponds
• Corps claimed jurisdiction under migratory bird
  rule
• Court confirms Riverside Bayview Homes holding
  that 404 covers wetlands adjacent to navigable
  waters
• Majority rejects migratory bird rule
• Why?

119
The Scope of 404 after SWANCC

• Could Congress adopt the migratory bird rule as
  an amendment to the CWA?
• Note Stevens dissent in SWANCC
• Legislative history indicates that Congress
  intended that federal jurisdiction under the CWA
  be given its broadest possible constitutional
  interpretation.
• Post-SWANCC decisions suggest that the Courts are
  giving SWANCC its broadest possible meaning
• Do SWANCC and New Mexico (both written by
  Rehnquist) suggest a similar philosophical
  approach?

120
No Net Loss of Wetlands

• Half of all native wetlands in the United States
  have been destroyed
• These wetlands provide important ecosystem
  services
• Water filtration
• Flood control
• Wildlife habitat
• The economic losses because these services have
  been compromised is enormous. The replacement
  value of these services is equally high.
• How does no net loss work?
• What problems arise at the individual project
  level?

121
Compensatory Mitigation and Wetlands Banking

• Shift from on-site to off-site mitigation
• Support for wetland mitigation banks
• Restored or created wetlands can be banked for
  future credit toward wetland destruction
• Should compensation be based upon wetland
  functions rather than acreage?
• How do you measure wetlands functions?
• Why is the banking system working so poorly?

122
The Meaning of Navigability

• Navigability for purposes of title to the bed
• Navigable in fact test -- The Daniel Ball
• Capable of being used in its ordinary condition
  as a highway for commerce (need not be interstate
  commerce)
• Navigability for purposes of the navigation
  servitude
• Includes tributaries of navigable waterways but
  not waterways rendered navigable by improvements
• Navigability for commerce clause purposes
• Like title test except reasonable improvements
  can be made
• Navigability for public rights of access
• State test depends on local law (A pleasure
  boat test?)
• Navigability for purposes of environmental
  regulation
• Broadest possible constitutional interpretation?

123
The Navigation Servitude

• The government owes no compensation for the value
  of land associated with a navigable waterway
• No compensation for loss of access
• No compensation for loss of flow
• No compensation for value as a port site

124
The Endangered Species Act

• Provides for listing species as threatened or
  endangered
• Requires conservation of listed species (through
  affirmative federal agency action and a recovery
  plan)
• Requires consultation and prohibits jeopardy to a
  listed species, or adverse modification of
  designated critical habitat by federal agency
  actions
• Where an agency finds jeopardy it must set forth
  reasonable prudent alternatives (RPAs) that
  would not cause jeopardy
• Prohibits the taking of a listed species of
  wildlife (not plants) without a permit

125
Consider the Case Studies

• Edwards Aquifer
• 8 unique aquatic species listed
• Middle Rio Grande
• The silvery minnow
• Colorado River Basin
• Four fish species and the southwestern willow
  flycatcher
• California/Bay Delta
• Five fish species
• Pacific Northwest
• Numerous species of salmon, steelhead, chum and
  bull trout

126
Edwards Aquiferhttp//water.usgs.gov/pubs/fs/Fs94
048/
127
Silvery Minnowhttp//ifw2es.fws.gov/Documents/R2E
S/FINAL_CH_Designation_Rio_Grande_Silvery_Minnow.p
df68 Fed Reg. 8134 (2003)

128
California/Bay Delta

• Delta smelt, winter run Chinook salmon and three
  other species threatened by the operation of the
  federal Central Valley Project (CVP) and the
  State Water Project (SWP)

129
Pacific Northwest

• Salmon runs of the Columbia River and its
  tributaries
• Each run supports a unique species
• While the Northwest has a lot of water, dams have
  blocked salmon migration, and pollution from
  urban runoff, farming and logging threatens
  stream quality

130
Tulare Lake Basin WSD v. U.S.

• What is the nature of the water rights at issue
  in this case?
• The FWS set forth reasonable and prudent
  alternatives that limited the amount of water
  available to the Districts
• Consider the takings analysis
• Was this a physical appropriation of water?
• Why does it matter?
• Does the contract limit the title?
• Are you persuaded by the Courts effort to
  distinguish ONeill?
• How does the public trust doctrine fit into the
  Courts analysis? Could California impose limits
  to avoid the taking?

131
Q D Pages 846-848

• How does this analysis look under the Penn
  Central test?
• Should a taking be found in the situation where
  there is a hybrid drought one caused by
  natural and regulatory conditions?

132
Interstate Allocation of Water

• Judicial allocation
• Equitable apportionment
• Allocation by interstate compact
• Congressional allocation
• Which do you think is the preferable method?
  Why?

133
Equitable Apportionment

• Kansas v. Colorado (1907)
• Court established the doctrine but refused to
  apportion the Arkansas River because Kansas
  failed to show serious harm
• Colorado v. Wyoming (1922)
• Court apportioned Laramie River suggesting that
  it would essentially follow priorities (since
  both Colorado and Wyoming used the PA system),
  but it actually protected certain out of priority
  uses in Colorado
• New Jersey v. New York (1931)
• Court apportioned Delaware River with mass
  allocations and minimum stream flows
• Nebraska v. Wyoming (1945)
• Court apportioned North Platte River but refused
  to adhere to strict priorities
• Colorado v. New Mexico
• Reasonable conservation measures required but
  marginal New Mexico irrigation district only need
  use economically feasible practices

134
Interstate Compacts

• Compact Clause Art. 1, Sec. 10. cl. 3
• No State shall, without the consent of Congress,
  enter into any Agreement or Compact with
  another State.
• Advantages
• Avoids dormant commerce clause problems
• Promotes efforts to find common ground among
  States
• As federal law a compact trumps inconsistent
  state law
• Cuyler v. Adams, 449 U.S. 433 (1981)
• Disadvantages
• States are often reluctant to concede authority
  to a Commission that they may not be able to
  contro