Federal Reserved Water Rights in Utah

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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
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J. Golden Kimball

• Lets not get Out of Order!

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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)

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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?

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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

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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

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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

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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

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COLOARDO RIVER OPPORTUNITIES

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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
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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
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Questions ?
The End