Federal Reserved Water Rights in Utah - PowerPoint PPT Presentation

Loading...

PPT – Federal Reserved Water Rights in Utah PowerPoint presentation | free to download - id: 75aa95-ZWNhM



Loading


The Adobe Flash plugin is needed to view this content

Get the plugin now

View by Category
About This Presentation
Title:

Federal Reserved Water Rights in Utah

Description:

Federal Reserved Water Rights in Utah And, some thoughts on Management of the Colorado River and Protection of Flow for Endangered Fishes Norman K. Johnson – PowerPoint PPT presentation

Number of Views:53
Avg rating:3.0/5.0
Slides: 34
Provided by: admu151
Category:

less

Write a Comment
User Comments (0)
Transcript and Presenter's Notes

Title: Federal Reserved Water Rights in Utah


1
Federal Reserved Water Rights in Utah
  • And, some thoughts on Management of the Colorado
    River and Protection of Flow for Endangered Fishes

Norman K. Johnson 2011 Utah Water Users
Workshop March 15-16, 2001 The Dixie Center, St.
George, Utah
2
J. Golden Kimball
  • Lets not get Out of Order!

3
Western Water LawOrigin and History
  • In the arid West areas of water use were often
    located far from sources of supply
  • Miners built diversions and moved
  • water
  • Their first in time/first in right
  • mining principles carried over to
  • water rights
  • The doctrine of prior appropriation of water
    was
  • was born (mid to late 1800s)

4
Western Water LawOrigin and History
  • The federal government supported growth and
    development of this new water law
  • 1866 Mining Act 1877 Desert Land Act
  • The U.S. Supreme Court said these acts severed
    the land and water estates and directed that
    water rights be obtained under the laws of the
    territories and states

5
Western Water LawOrigin and History
  • Appropriative water rights became
    constitutionally protected property rights
  • Their basis is the beneficial use of water
  • They are defined by quantity, time, and nature of
    use and can be lost by non-use
  • Priority date is when beneficial use began
  • They are transferable

6
Reserved Rights DoctrineOrigin and History
  • At the same time the appropriation doctrine was
    developing, federal reservations of land were
    being made
  • Congress and the President set aside public land
  • for special purposes, such
  • as Indian reservations,
  • but did not create
  • accompanying water rights

7
Reserved Rights DoctrineOrigin and History
  • In 1906 the U. S. brought suit on behalf of the
    Fort Belknap Reservation Indians to secure water
    rights for them
  • Defendant farmers/ranchers protested, saying they
    had valid water rights created under Montana law
  • The suit created a genuine dilemma

8
Reserved Rights DoctrineOrigin and History
  • In 1908 the Supreme Court issued its Winters
    decision
  • It said Congress, when it created the
    reservation, must have impliedly intended to
    reserve water for the Indians
  • The reserved rights doctrine was born
  • It was judicially created and defined

9
Reserved Rights DoctrineOrigin and History
  • In Arizona v. California (1963) the U. S. Supreme
    Court said the reserved rights doctrine applies
    to federal reservations other than Indian
    reservations
  • For Indian Reservations it said the number of
    practicably irrigable acres on the reservation
    (PIA) is used to quantify the right

10
Reserved Rights DoctrineOrigin and History
  • Subsequent case law further defined the reserved
    water right doctrine
  • Cappaert v. U.S. (1976) the
  • amount of water reserved is the
  • minimum amount necessary to
  • fulfill reservation purposes
  • U.S. v. New Mexico (1978)
  • primary purposes only get
  • reserved water rights

11
Reserved Rights vs. Appropriative Water Rights
  • Reserved water rights are important property
    interests
  • Their basis is the creation of reservations
  • The purpose of the reservation defines them (PIA
    for Indian reservations)
  • Priority date is creation of the reservation
  • They are not lost by non-use

12
Reserved Rights vs. Appropriative Water Rights
  • In addition to having very different
    characteristics than appropriative water rights,
    the more pressing problem is that reserved water
    rights are un-quantified when created
  • Given their early priority dates, they may
    compete with State-created water rights

13
Reserved Rights vs. Appropriative Water Rights
  • Utah, an arid state, has many federal
    reservations federal lands set aside for
    specific purposes, like Indian reservations,
    national parks and monuments, military bases,
    etc.
  • How should these rights be quantified?

14
Reserved Rights vs. Appropriative Water Rights
  • States have taken different approaches
  • In times past, pretend reserved rights dont
    exist
  • Litigate about reserved rights
  • Negotiate such rights on a case-by-case basis
  • Utah has chosen to negotiate because the other
    approaches have been unsuccessful

15
Reserved Rights vs. Appropriative Water Rights
  • Utah has negotiated reserved water rights for
    Zion National Park, a watershed in the Dixie
    National Forest, Cedar Breaks, Hovenweep,
    Promontory, Rainbow Bridge, Timpanogos, and
    Natural Bridges National Monuments and the
    Shivwits Indian Reservation

16
Reserved Rights vs. Appropriative Water Rights
  • We are working on an agreement for Arches
    National Park
  • We are close to agreement with the Ute Indian
    Tribe
  • We are working with the Navajo Nation
  • Both the Ute and Navajo settlements involve water
    from the Colorado River

17
COLORADEO RIVER CHALLENGES
  • Optimizing Use of Remaining Allocation (and
    integrating federal reserved water rights)
  • Assuring Continued River Use (ESA/Fish Flows)
  • Protecting Project Investments (Priority Issues)
  • Keeping Peace with Sister
  • States and Mexico
  • Studying Curtailment
  • issues

18
COLOARDO RIVER OPPORTUNITIES
  • Negotiate Indian Water Rights
  • Negotiate Other Federal Reserved Water Rights
  • Solve ESA Issues through
  • RIPRAP Compliance
  • Implement
  • Multipurpose Projects

19
Utah/Navajo Reserved Water Right Negotiations
  • Navajo has substantial Winters rights
  • Compacts require Navajos rights come from Utahs
    share
  • Utah and Navajo have worked to resolve
  • Utah must make a financial commitment

20
LIABILITY POTENTIAL
  • PIA 166,500 AF
  • Expensive,
  • Unpredictable Litigation
  • Non-Indian Priority Conflict

SETTLEMENT PROPOSAL
NAVAJO NATION
  • 81,500 AF Water Depletion
  • 156 Million in Projects
  • Subordination to Existing Rights
  • Consideration for Local Communities
  • Emphasis on Drinking Water
  • 5 of cost (8M) State Share

21
BENEFITS OF A SETTLEMENT AGREEMENT
  • Quantify a Significant Reserved Water Right
  • Avoid Costly Litigation and Uncertain Outcome
  • Improve Quality of Life for Utah Navajo People
  • Provide Certainty for Utahs Water Users
  • CUP/Wasatch Front
  • Uintah Basin and San Juan County
  • Lake Powell Pipeline
  • Protect Current Water Rights
  • Solve Colorado River Issue

22
Another Colorado River ChallengeFish Flows
  • The Colorado River Basin is home to four fishes
    listed under the federal Endangered Species Act
    (ESA)
  • Humpback Chub
  • Colorado Pikeminnow
  • Razorback Sucker
  • Bonytail Chub

23
Another Colorado River ChallengeFish Flows
  • Congress enacted ESA in 1973
  • It requires federal agencies to conserve species
    listed under the Act
  • It prohibits anyone from taking a species
    listed as endangered
  • Taking is broadly defined and might include
    diverting water from listed species habitat
  • Reasonable and prudent alternative needed

24
Another Colorado River ChallengeFish Flows
  • The ESA has caused dramatic results in the
    Columbia and Klamath River Basins (managing for
    the salmon) and in the tributaries of
    Californias Bay Delta (managing to protect the
    Delta Smelt)
  • In effect, federal judges have become the
    equivalent of the State Engineer in some places

25
Another Colorado River ChallengeFish Flows
  • Some 40 years after ESAs enactment, states have
    three choices
  • Legislate
  • Litigate or
  • Cooperate
  • Efforts to legislate or litigate regarding ESA
    have been unsuccessful

26
Another Colorado River ChallengeFish Flows
  • The Upper Basin States chose to be proactive and
    implement a recovery plan for the Colorado River
    endangered fishes
  • This gives Utah and the other three states an
    opportunity to be full partners in recovery
    implementation and to use water resources while
    recovery efforts proceed

27
Another Colorado River ChallengeFish Flows
  • The program consists of two parts
  • The Recovery Implementation Plan (RIP)
  • The Recovery Action Plan (RAP)
  • The RIP is what we want to do to recover
    endangered fishes
  • The RAP is how were going to do it
  • RIPRAP emphasizes science not politics

28
Another Colorado River ChallengeFish Flows
  • Ultimately, recovery would mean ESA issues would
    be resolved
  • Meantime, the RIPRAP means Utah can continue to
    develop its water resources
  • No RIPRAP compliance means both existing and
    future diversions may be in question and could be
    prohibited

29
Another Colorado River ChallengeFish Flows
  • The two most important elements of the RIPRAP
    are non-native species control (bass and pike)
    and habitat protection
  • Habitat protection means facilitation of
    reintroduction of fry, predator control, creating
    backwaters, and fish flow sufficiency, which is
    critical to recovery

30
Another Colorado River ChallengeFish Flows
  • Flow recommendations, or flow targets, are set
    based on 20 years of studies
  • The fish are resilient and can survive drought,
    but also need years of significant flow to
    reproduce
  • The RIPRAP seeks a balance between the needs of
    fish and water users

31
Another Colorado River ChallengeFish Flows
  • Given use projections, the pinch point for
    flows is Reach 3 on the Green River
  • Generally, flow is sufficient
  • How to assure future flows are not jeopardized?
  • Exercising the Lake Powell Pipeline water right
    may provide a win/win/win opportunity re fish
    flows

Reach 1
Reach 2
Reach 3
32
Another Colorado River ChallengeFish Flows
  • If the LPP water right is exercised as a Flaming
    Gorge storage right with a point of re-diversion
    at Lake Powell, then flows would be protectable
    through Reach 3
  • This may require a limited modification to
    existing in-stream law

Reach 1
Reach 2
Reach 3
33
Questions ?
The End
About PowerShow.com