du-water-law

Apples to Oranges: A Comparison of Two State Statutory Approaches to Addressing Aquifer Mining, Depletion, & Drawdown in Colorado & Texas

Sat, 25 Apr 2026 19:42:19 GMT

Benjamin Franklin once said, “When the well is dry, we’ll know the worth of water.” Unsurprisingly, the precious resource he acknowledged is the same one that people fought and died over. While violent disputes used to provide the typical means to acquire water rights, states since then regulated water ownership in a manner suitable to their geographical location and purposes. Texas and Colorado take their own respective approaches to statutory regulations, particularly when focusing on aquifers. This article compares how Texas Groundwater Conservation Districts and Colorado Ground Water Management Districts regulate aquifer mining and depletion.

Both states base their controlling schemes over water rights on the legal principle of “first in time, first in right.” However, Colorado assumed the Prior Appropriation Doctrine, Texas took on a hybrid version—the Rule of Capture. The Texas Legislature refining regulatory bodies governed mainly by said separate entities created by the state legislature supersedes the Rule of Capture. The Rule of Capture’s remnants remain in some of the current governing rules in Texas. Meanwhile, Colorado remains steadfast in its application of Prior Appropriation.

Despite having different approaches, Texas and Colorado both created Groundwater Conservation Districts to manage areas statewide with little to no water. This blog focuses specifically on those districts and the statutory foundations upon which they rest.

Regardless of the statewide structure governing water rights, both states share similar policy goals. In the face of environmental concerns, such as subsidence and the resulting evolving geological areas, both Texas and Colorado must address the ever-growing need for more water, both in and out of aquifers.

I. State Approaches to Aquifer Regulation And Well Spacing

A. Texas Groundwater Conservation Districts

After the U.S. Constitution and federal laws, the Texas Legislature holds the ultimate authority to enact laws governing water rights and management. It delegates specific powers to state agencies and local entities to implement and enforce the Texas Water Code through the Texas Commission on Environmental Quality (TCEQ). The genuine “boots on the ground” enforcers specific to groundwater management are Groundwater Conservation Districts (GCDs). Texas granted GCDs the authority to regulate well spacing and groundwater production. Statutorily, these GCDs remain the state’s preferred method of groundwater management to preserve property rights across Texas while balancing conservation and development concerns; however, the state not always prioritizes considerations of conservation and development.

Historically, Texas followed the Rule of Capture, which allows a landowner to pump water from beneath his or her property, even at the expense of his or her neighbor. The rule established in 1904 by the Texas Supreme Court in Houston & T.C. Ry. V. East, which held that a landowner had no legal remedy against a railroad company that had moved next door and drilled a larger well, causing the landowner’s well to go dry. The court’s simple solution for the landowner: drill a bigger, deeper well than the railroad. Over time, establishing GCDs addressed specific policy concerns and granted regulatory authority over groundwater. To simplify, Texas state law sets the framework; TCEQ rules govern broad permits and quality; and the GCDs manage groundwater production, depletion, and protection.

It is interesting to note that, under Texas law, tributary groundwater is not defined separately from non-tributary groundwater. Instead, the statute creates two primary categories of water: surface water and groundwater. The primary focus centers more on each GCD’s ability to adopt rules suitable for each aquifer, subdivision of an aquifer, or geographic area overlying aquifer boundaries. This can account for the unique characteristics of each aquifer, especially when considering the varying climates across the state, as well as to categorize the aquifer’s physical attributes—i.e., what Colorado distinguishes as tributary or non-tributary. GCDs combine the physical characteristics of an aquifer with defining the “ best available science ” to combat issues that may arise. This boils down to utilizing “conclusions that are logically and reasonably derived using statistical or quantitative data, techniques, analyses, and studies that are publicly available to reviewing scientists and can be employed to address a specific question.” The relevant question that arises from this statutory line of thinking is this: Is the reliance on scientific methods too exclusionary of relevant human interests? There seems to be a fine line. While science remains a strong method for determining relevant environmental concerns, it is not always kind to the economic and personal interests of smaller parties, such as farmers and ranchers living in rural areas.

B. Colorado Ground Water Management Districts

As the state that first developed and implemented the Prior Appropriation Doctrine, Colorado remains known for its water courts and precedent governing all rights to water. The Prior Appropriation system dictates that appropriation occurs when someone removes water from a water source and then puts it to a beneficial use. The first person to take the water and put it to a beneficial use gains priority over subsequent appropriators, and once receiving a court decree verifying status, becomes a senior water right owner relative to subsequent appropriators. Senior owners’ priority over junior water right owners, with the underlying expectation that senior owners’ “call” for water fulfills before any other water owners.

Notably, the Colorado Ground Water Management Act of 1965 (GMA) modified said Prior Appropriation system to prevent unreasonable aquifer depletion on Colorado’s Eastern Plains, where notably less water connects to surface streams. The GMA established the Colorado Ground Water Commission (GWC), which governs the Ground Water Management Districts (GWMDs). Both entities have jurisdiction over designated groundwater , which is statutorily distinct from tributary groundwater. Designated groundwater encompasses water located within designated basins that either (1) would not feed into decreed surface water rights, or (2) is in areas lacking a constant natural stream where groundwater serves as the primary water source for at least 15 years prior to the basin’s designation. Essentially, this boils down to water that provides a de minimus impact on surface streams. The GWC holds the authority to adjudicate designated groundwater rights only, as well as issue large capacity well permits. In contrast, the GWMDs represent local districts wherein there is more administrative power within their designated boundaries. GWMDs retain authority to regulate the use, control, and conservation of groundwater within their boundaries. GWMDs can adopt controls and regulations to minimize the lowering of the water table, subject to review and approval by the GWC. If anything, this specific governance over designated groundwater provides a balance of economic development with aquifer sustainability.

II. Regulatory Mechanisms to Handle Drawdown & Depletion

A. Texas

Texas GCDs intend to regulate groundwater production to minimize aquifer drawdown, prevent subsidence, and protect water quality. To do this, GCDs can adopt rules to regulate well spacing to prevent well-to-well interference and reduce the depletion risk. GCDs can also limit groundwater production based on acreage and impose production limits to ensure sustainable aquifer use. GCDs consider a multitude of factors when implementing rules specific to drawdown and depletion regulation, including, but not limited to, hydrological conditions, recharge rates, and socioeconomic impacts, when estimating desired future conditions for aquifers. Further, Texas Water Code Chapter 36 grants GCDs discretion to regulate groundwater production to preserve historic or existing uses.

The main workhorse provision for dealing with well-to-well interference and localized depletion focuses on district regulation of well spacing and production to prevent waste and the protection of groundwater reservoirs. Many GCD rules base production limits on acreage or tract size and impose minimum spacing between wells to reduce interference between cones of depression and avoid unreasonable impacts on existing wells. At the same time, other statutory requirements require most non-exempt wells to obtain permits, and districts must evaluate those well applications against their management plans and the regional “ desired future conditions .” Those desired future conditions essentially act as a statutory cap on how much depletion is acceptable in a particular aquifer. These implementations layer over the Rule of Capture, as well as case law, which push districts to balance their state-mandated code with potential takings claims when they limit pumping too aggressively.

B. Colorado

Colorado GWMDs, on the other hand, govern designated groundwater, and the aquifers they govern are already facing long-term depletion. Instead of the pure conservation mandate that Texas possesses, Colorado’s statutes primarily focus on preventing “unreasonable injury” or “material injury” to existing water rights, as laid out in specific well-permitting provisions. The Colorado Supreme Court previously interpreted these statutes to mean that prior appropriators are not entitled to a “frozen” water table; i.e., that some drawdown is statutorily allowed so long as it does not unreasonably impair earlier wells.

Colorado’s permitting rules directly tie into well-to-well interference and aquifer mining. The GWC has to decide whether unappropriated groundwater is available and whether a proposed well will cause material injury to vested rights. It can deny or limit permits with conditions to follow if those standards are not met. In some situations, Colorado law requires augmentation or replacement plans, which provide means to replace depletions to avoid injury. Unlike Texas’s future conditions consideration, Colorado does not always aim to meet a specific target of drawdown; instead, the “unreasonable injury” and “material injury” language function as a legal limit for how much aquifer decline is tolerated within a designated basin.

II. Challenges & Policy Considerations

A. Comparison of the Challenges Each State Faces

One of the biggest challenges that Texas must consider is that its framework sits on top of the old Rule of Capture background, while also telling GCDs that they are supposed to conserve and protect the water that landowners think they own. The Texas Water Code recognized that landowners have “ ownership of groundwater in place .” It then clarifies how that ownership is defined by stating that it is subject to “ regulation under this chapter and under the rules adopted by a district.” At the same time, another section lays out what seems like an ambitious policy: districts must provide for “the conservation, preservation, protection, recharging, and prevention of waste of groundwater and of groundwater reservoirs or their subdivisions, and to control subsidence caused by withdrawal of groundwater.” In other words, GCDs essentially respect private property rights but also keep aquifers from being mined and the land from sinking, which is a bit of a tightrope.

Texas courts also added pressure by recognizing takings-like claims in groundwater regulation. The Texas Supreme Court previously acknowledged in Edwards Aquifer Authority v. Day that landowners possess a constitutionally protected interest in groundwater in place, and district regulations that go “too far” could potentially be held responsible for providing compensation. This could reasonably make a district nervous about utilizing the full extent of its statutory powers under provisions governing spacing and production, or even permitting, to really clamp down on drawdown and depletion. Thus, a district might actually be squeezed from three directions at once: landowners invoking precedent, regional desired future conditions that say “you can’t pump that much,” and a statutory conservation and subsidence mandate that doesn’t really create a clear safe harbor. It is not shocking that implementation looks uneven from district to district.

Colorado’s challenges look a little different because the foundational system is Prior Appropriation, but many of the practical roadblocks are similar. The Colorado GMA creates the category of “designated groundwater” and puts it under the jurisdiction of the Colorado GWC and local GWMDs. While considering the plain language of the statute seems clarifying, in reality, figuring out what is designated versus tributary, and how much connection there is to streams, can be complicated and politically touchy. Additionally, the GMA assumes that some level of aquifer mining will occur and then tries to keep it within tolerable bounds, which, in theory, is logical.

The GWC is supposed to issue large capacity well permits only when there is unappropriated groundwater and when existing rights won’t suffer substantial injury. As noted in Jaegar v. Colorado Ground Water Commission, the Colorado Supreme Court made it clear that prior appropriators in designated basins do not guarantee that the water table will stay where it was when they drilled; rather, the GMA protects from unjustified impairment. This gives the GWC and the local districts some flexibility, but also means that they must make controversial judgment calls about how much decline is too much. The Colorado Supreme Court also stressed that the GWC must weigh economic development and beneficial use against aquifer conditions when deciding whether additional wells are compatible with statutory standards. Thus, it seems that Colorado regulators constantly balance the statutory foundation of Prior Appropriation against the explicit decision in the GMA to allow planned depletion.

B. Takeaways Each State Could Learn from The Other

One obvious notion that Colorado might learn from Texas is how to be more explicit about conservation and subsidence in the text of the statutes. Texas regulations remain quite blunt in stating that GCDs exist to conserve and preserve groundwater, recharge aquifers, prevent waste, and “ control subsidence caused by withdrawal of groundwater.” That clear-cut statement of policy gives Texas districts a straightforward rule when they adopt strict spacing or production limits or when they justify denying permits. While Colorado’s designated-basin provisions in Title 37 speak about “beneficial use” and “material injury,” those provisions are less direct about long-term conservation goals. As climate change and long-term declines start to intensify, Colorado might benefit from adding a more modern conservation and aquifer-protection policy section.

Colorado could also look at Texas’s “desired future conditions” approach as a model for more explicit basin-wide planning. Texas code requires districts within a specific GCD area to adopt said conditions for each relevant aquifer, and then the Texas governing authority uses those estimated future standards to create modeled available groundwater values that effectively set a ceiling on permissible pumping. This process forces a collective conversation about how much drawdown is acceptable by a given year, which is quite necessary when considering juggling economic and environmental interests along with consumptive and domestic uses. Colorado’s GWC and GWMDs already retain their own authority to adopt basin rules, but there is less emphasis on calculating a specific future condition for the aquifer. Borrowing a concept such as a “designated basin future condition” could give stakeholders in Colorado a clearer sense of how the law is trying to guide long-term aquifer conditions, rather than leaving that mostly implicit in GWC decisions.

On the flip side, Texas might take a page from Colorado’s more candid treatment of aquifer mining and the concept of “unreasonable injury” in designated basins. The GMA basically admits that some aquifers will draw down over time, but insists that the drawdown managed so existing appropriators are not unreasonably or materially injured. Case law reinforces the idea that regulators should determine what decline is manageable and consistent with statutory standards, and then enforce that line. Texas’s “desired future conditions” framework does something similar in practice, but the statutory text is not strong enough to fully meet this bar. While some Texas code discusses conservation and planning, primary pieces of the code do not squarely address that, in some places, the political choice might be to allow a controlled mining of the aquifer to support agriculture or municipal growth for a limited time. Adding clearer verbiage about when and how planned depletion is allowed may make the entirety of the Texas Water Code more honest and, arguably, easier to defend in court.

Texas could also learn from Colorado’s more formal standard for material injury to protect existing users. In designated basins, the Colorado GWC must deny or issue conditional permits if doing so would cause material injury to vested water right owners. Texas districts certainly mention protecting “historic use” and preventing waste, and are supposed to consider socio-economic impacts and aquifer conditions when setting “desired future conditions,” but the code does not provide explicit parameters for when the changes to an existing well are deemed unacceptable. Taking a more explicit, “no unreasonable impairment of existing wells” standard and embedding it in the Texas code could help districts justify tougher decisions to cut permitted amounts or deny new wells in already lowered or stressed areas.

III. Conclusion

Texas and Colorado carved out their own statutory paths to address aquifer mining, depletion, and drawdown that reflects each state’s distinct legal traditions and environmental considerations. Texas relies on locally driven GCDs, guided by somewhat vague, broad conservation and subsidence control goals. Colorado’s GWMDs, created under the GMA, establishes a regime for designated groundwater, setting acceptable limits on aquifer decline through the Prior Appropriation standard. Both systems illustrate the difficulty of using law to ration a finite renewable resource. Overall, these systems suggest that future statutory refinements should focus on sharpening planning goals by integrating climate considerations and creating clearer statutory standards through updated terminology for the tolerable level of drawdown to support economic development and water-supply reliability.

SOURCES

Tex. Const., Art. XVI, § 59(a).
Tex. Water Code § 5.013.
Tex. Water Code § 36.116; see also Tex. Water Code § 36.101.
Houston & T.C. Ry. v. East, 81 S.W.279, 280 (Tex. 1904).
Id.
Tex. Water Code § 36.001.
See § 36.116.
Colo. Rev. Stat. § 37-90-103.
Tex. Water Code § 36.0015(a).
Id.
Water Rights, Colo. Div. of Water Rights, https://dwr.colorado.gov/services/water-administration/water-rights .
Colo. Rev. Stat. § 37-90-101; see also Jaeger v. Colo. Ground Water Com., 746 P.2d 515, 520, 523 (Colo. 1987).
Colo. Rev. Stat. § 37-90-103.
Colo. Ground Water Comm’n, Colo. Div. of Water Rights, https://dwr.colorado.gov/public-information/boards-and- commissions#:~:text=Colorado%20Ground%20Water%20Commission%20(CGWC,(Division% 20of%20Water%20Resources).
Colo. Rev. Stat. § 37-90-130.
Colo. Rev. Stat. § 37-90-131.
Colo. Rev. Stat. § 37-90-111; see generally Front Range Res., LLC v. Colo. Ground Water Comm’n, 415 P.3d 807, 811 (Colo. 2018).
Tex. Water Code § 36.0015(a).
§ 36.116; see also Tex. Special Dist. Loc. L. Code § 8887.103.
Tex. Water Code § 36.108.
§ 36.116.
Id.; see also Tex. Water Code § 36.101.
Id.
See Tex. Water Code § 36.1132; Tex. Water Code § 36.1071; Tex. Water Code § 36.108.
§ 36.108.
See generally Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 832-33 (Tex. 2012).
Colo. Rev. Stat. § 37-90-137.
Jaeger, 746 P.2d at 520, 523.
Colo. Rev. Stat. § 37-90-137.
Colo. Rev. Stat. § 37-90-103(12.7); Colo. Rev. Stat. § 37-92-305.
§ 37-90-137.
Tex. Water Code § 36.002.
Id.
Tex. Water Code § 36.0015.
See Edwards Aquifer Auth., 369 S.W.3d at 832-833.
Tex. Water Code § 36.116; Tex. Water Code § 36.113.
Colo. Rev. Stat. § 37-90-103.
Colo. Rev. Stat. § 37-90-137.
See Jaeger, 746 P.2d at 520, 523.
See id.
See Front Range Res., LLC, 415 P.3d at 811-12.
Tex. Water Code § 36.116.
See id.; see also https://dwr.colorado.gov/public-information/boards-and- commissions#:~:text=Colorado%20Ground%20Water%20Commission%20(CGWC,(Division% 20of%20Water%20Resources).
See Colo. Rev. Stat. § 37-90-137.
See Tex. Water Code § 36.108.
Id.
Colo. Rev. Stat. § 37-90-131.
Colo. Rev. Stat. § 37-90-137.
See Jaeger, 746 P.2d at 520, 523; see also Front Range Res., LLC, 415 P.3d at 811-12.
See Tex. Water Code § 36.108.
See Tex. Water Code § 36.0015.
Colo. Rev. Stat. § 37-90-137.
See Tex. Water Code § 36.116; see also Tex. Water Code 36.108.
Colo. Rev. Stat. § 37-90-137; see Jaeger, 746 P.2d at 520, 523.

Utah’s Proposed Lake Powell Pipeline & Its Implications for the Law of The River

Sat, 25 Apr 2026 19:32:55 GMT

I. INTRODUCTION

The Utah Board of Water Resources (UBWR) proposed the Lake Powell Pipeline Project (LPP) to address increasing water demands in Washington County, Utah. The pipeline is projected to be approximately 141 miles long, diverting water from the Colorado River, beginning at Lake Powell near the Glen Canyon Dam and ending in Washington County, Utah. The pipeline diverts water from Utah’s Upper Basin allocation, but its ultimate use remains in the Lower Basin. The “Law of the River,” which governs the Colorado River, comprises of federal laws, court decisions and decrees, contracts, regulatory provisions, and interstate compacts. The guidelines for the Colorado River expired in 2025, and a new management plan must exist by the fall of 2026. The Upper and Lower Basin states must reach an agreement on how to allocate the Colorado River, or the federal government will step in. The Law of the River does not provide explicit guidelines on whether Upper Basin water can be used in the Lower Basin; however, textual interpretation, common law, concerns about precedent, and the existence of other alternatives indicate that other options should be explored before the LPP is constructed. This blog post discusses the details of the LPP, stakeholder positions on the LPP, the laws that govern the Colorado River, interpretations of the Compacts of 1922 and 1948, relevant case law, the policy implications of the LPP, and, lastly, potential resolutions.

II. LAKE POWELL PIPELINE PROJECT

The UBWR proposed constructing the LPP to transport water from the Lake Powell Reservoir by pipeline approximately 141 miles to Washington County, Utah, delivering up to 86,249 acre-feet of water. The LPP water is allocated to Utah but remains used in the Lower Basin within Utah. In 2006 the Utah State Legislature passed the Lake Powell Pipeline Development Act, which authorized the construction of the LPP. The US Bureau of Reclamation published a Draft Environmental Impact Statement (DEIS), recommending the Southern Alternative as the preferred alternative for the LPP. The DEIS states that this alternative would meet Washington County’s water needs by 2060, as it is economical, provides water security, complies with the Lake Powell Pipeline Development Act, and does not require tribal agreement.

The permitting process for the project remains paused since 2020, due to resistance from surrounding states. The DEIS was published in June of 2020, and on September 8, 2020, in response, the Colorado River Basin states requested that a Final EIS not be approved until all seven states reached an agreement regarding the project. Nonprofit groups called for the pipeline’s removal from the permitting process on December 18, 2023, stating that the Colorado River does not have excess water for the pipeline and that this should not maintain priority over other Colorado River water right issues.

III. STAKEHOLDER POSITIONS

The LPP’s proponents argue that the pipeline is needed to diversify the water supply and provide a reliable water source for residents of Washington County. The county is projected to have a population increase of 155% by 2060, and receives over six million visitors, with seasonal residents owning 20% of the homes. Proponents argue that the pipeline will protect the environment by keeping water flowing through the Colorado River system, ensuring the health of the ecosystem. The pipeline alleges to promote the economy by keeping employers in the state and to prevent drought by providing additional water supplies and storage. The primary LPP proponents include state and federally elected officials, such as Senator Mike Lee, as well as many local industry and utility providers, community leaders, and municipalities.

Various grassroots groups oppose the LPP . The Utah Rivers Council (URC) contends that the pipeline is unnecessary, expensive, and destructive. The URC states that Washington County consumes water at more than double the national average because of low water rates, and that population growth has been exaggerated. The URC alleges that the pipeline will cost at least 2.24 billion dollars of taxpayer money, which will increase water and property taxes. The URC states that this will disturb wildlife, spread invasive species, and reduce water flows in the Grand Canyon. If the Colorado River experiences only a 9% decline in flow, a 3.2 million acre feet (maf) water demand-supply imbalance will result. The Western Resource Advocates argue that the prepared DEIS does not account for projected increases in water efficiency, thereby inflating water demand.

IV. BACKGROUND

The Colorado River Compact of 1922 divided states into the Upper and Lower Basin. Colorado, Wyoming, Utah, and New Mexico make up the Upper Basin, while Arizona, Nevada, and California make up the Lower Basin. Upper Basin water is comprised of the parts of the Upper Basin states where water from the Colorado River drains above Lees Ferry. The same provision controls the Lower Basin, but for waters below Lees Ferry.

The Colorado River Compact, however, is wrought with miscalculations. When the Compact was drafted, it was believed that there was between 17 and 20 maf of water to allocate and therefore allocated 7.5 maf to each basin. This calculation was made during a period of unusually high water flows, and therefore, allocates more water allocated than available. The Compact also requires the Upper Basin to ensure at least 7.5 maf are delivered annually to the Lower Basin. Additionally, the Upper and Lower Basins must each deliver half of the annual 1.5 maf requirement under the 1944 U.S.-Mexico treaty. The Upper Basin states have a legal obligation to deliver this water, and if they do not, they may be subject to a “Compact Call” requiring the Upper Basin to reduce its water use to satisfy that obligation. This would have serious implications for major cities in Upper Basin states, as many possess water rights that are junior to the Compact.

The Upper Colorado River Basin Compact of 1948 allocates water among the upper-basin states. After deducting the obligations required to comply with the 1922 Compact, Colorado is allocated 51.75%, Utah 23%, Wyoming 14%, and New Mexico 11.25%. The Compact of 1948 provides that if there is a Compact Call, water rights senior to November 24, 1922, are not subject to the call. The Colorado River Storage Project Act (CRPSA) came afterward to provide a stable system that allowed the Upper Basin states to make full use of their allocated water. The enactment of the CRPSA led to the authorization of the Flaming Gorge Dam and Reservoir, the Glen Canyon Dam, and Lake Powell. Lake Powell is the primary means of sending water to the Lower Basin. Beginning in 2000, the Colorado River system began to face drought concerns. This led to the 2007 Interim Guidelines, but with these guidelines expiring soon, new management guidelines are crucial.

V. COMPACT INTERPRETATION

The LPP raises the question of whether water from Utah’s Upper Basin can be used in St. George, Utah, in the Lower Basin. The Colorado River Compact of 1922 defines the Upper Basin as the portions of Arizona, Colorado, New Mexico, Utah, and Wyoming whose waters naturally flow into the Colorado River system. In Article VIII, it states, “[a]ll other rights to beneficial use of waters of the Colorado River System shall be satisfied solely from the water apportioned to that Basin in which they are situate.” This language seems to imply that water allocated to a basin must be used in that basin. However, the Compact of 1948 allocated 23% of Upper Basin consumptive water use generally to the State of Utah, not just the part of the state that is part of the Upper Basin. Additionally, the 1948 Compact subjected to the terms of the 1922 Compact, designates Upper Basin water based on drainage into the Colorado River, and no specific provision governs transbasin use in either Compact Agreement. Therefore, neither the 1922 nor the 1948 Compact provide explicit clarity on whether the use of Upper Basin water in the Lower Basin is permitted.

VI. CASE LAW ANALYSIS

Equitable apportionment, a federal common law doctrine, governs disputes between states as it pertains to their rights to interstate streams. The doctrine prevents states from forcing other states to follow the same water law system. Equitable apportionment aims to create a just allocation by considering many factors. The prior appropriation system primarily guides allocation, but physical conditions, climate, rate of return flow, consumptive use, storage water availability, and downstream or upstream impacts are all considered relevant. As states face the question of moving Upper Basin water for use in the Lower Basin, looking to a balancing test such as equitable apportionment offers a case-by-case analysis approach that is essential to an area of law as complex as the Law of the River. When applying this test to the LPP, the lack of storage water and the impact this would have on Lower Basin users weigh heavily against the construction of the LPP. Further, in Arizona v. California, the Supreme Court held that the Secretary of the Interior had broad powers to manage the Colorado River in the Lower Basin. The Secretary was not required to follow prior appropriation laws when allocating water. If the states of the Upper and Lower Basin are unable to come to a comprehensive interstate compact before the current guidelines expire, the LPP could also be subject to being decided by the Court and implemented by the Secretary, rather than being left up to the states to decide.

VII. POLICY IMPLICATIONS

If the LPP project receives a permit, it may set a precedent for other Upper Basin states to take similar actions, especially since the 1922 and 1948 Compacts do not explicitly bar interbasin transfers. If the LPP uses Utah’s allocated Upper Basin water for use in the Lower Basin, other Upper Basin states that do not utilize their full allocation may also attempt to take advantage of this “loophole.” However, Lake Powell continues to face lowered water level concerns. By December 2026, the water level may drop to a level at which hydropower cannot be generated. If Upper Basin states become more concerned with ensuring they receive what they are allocated, rather than focusing on renegotiating a water compact that addresses shortages, we will face an even more severe crisis in the coming years.

VIII. POTENTIAL RESOLUTIONS

The LPP is not the only solution to address concerns regarding access to water. Washington County could restructure its tax system to prevent water waste. The Washington County Water District (WCWD) collects enough money from property taxes that it enables the County to provide lower water rates. Washington County’s per-person water use is among the highest in the U.S., likely due to inexpensive water. WCWD could eliminate these property taxes, a tax most water districts do not collect in the West. This would benefit taxpayers and discourage water waste. Washington County could also install water meters, which could curtail secondary water use, just by showing users how much water they use. Secondary water users pay only an annual fee and therefore have no idea how much water they use, with some secondary water users overwatering by more than 100 percent. Resolutions such as these should be explored before removing water from Lake Powell.

IX. CONCLUSION

The LPP confronts an area of uncertainty regarding the 1922 and 1948 Compacts. When examining the language of these Compacts, nothing explicitly prevents the LPP from using Upper Basin water for Lower Basin use. However, the doctrine of Equitable Apportionment seems to indicate that if the LPP were to be litigated, it would not be found to be a reasonable measure, given the lack of water availability and the potential policy implications. Therefore, I advocate taking alternative approaches, such as restructuring Washington County’s tax structure or installing meters before constructing the proposed 141 mile pipeline.

SOURCES

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Arizona v. California, 373 U.S. 546 (1963).
Shannon Mullane, What’s Holding Up the Colorado River Negotiations? Experts Break Down the Sticking Points. The Colorado Sun, (Oct. 30, 2025, 4:08 AM) https://coloradosun.com/2025/10/30/colorado-river-negotiations-experts-sticking-points/
Shannon Mullane, Lake Powell Forecasts Show Hydropower Generation is at Risk Next Year as Water Levels Drop, Water Education Colorado (July 17, 2025) https://watereducationcolorado.org/fresh-water-news/lake-powell-forecasts-show-hydropower-generation-is-at-risk-next-year-as-water-levels-drop/
Simple Alternatives, No Lake Powell Pipeline, https://lake-powell-pipeline.org/lake-powell-pipeline-alternatives (last visited Dec. 16, 2025).

Cloud Seeding: a silver lining against aridification or environmental threat?

Sat, 25 Apr 2026 19:27:30 GMT

Dotting the Wasatch, Uinta, and La Sal mountain ranges in Utah stand 190 remote-controlled, cloud-seeding generators— the largest system of its kind in the world. Persistent aridification throughout the Southwest compelled Colorado Basin states, like Utah, to increase their budgets for cloud seeding. At the same time, states like Florida and Tennessee codified bans on all weather modification. Doubts about its efficacy, potential side effects, and conspiracy theories prompt questions of whether regional or national governance will provide the best regulatory framework for cloud seeding’s future.

The Science

Neither a fringe technology nor a recent invention, cloud seeding’s discovery took place in 1946 at the General Electric Research Laborator y in Schenectady, New York. There, chemists Vincent Schaefer and Nobel laureate Irving Langmuir showed that dry ice dropped into a cold cloud could cause ice crystal formation and snowfall. Soon after, Bernard Vonnegut found that silver iodide produced the same effect at warmer temperatures and much lower concentrations. Silver iodide remains the main cloud seeding agent ever since. More recently, countries like the United Arab Emirates tested hygroscopic flares containing natural salts such as potassium chloride, sodium chloride, and magnesium chloride to increase rainfall at higher temperatures.

In Utah, between November and April, remote-controlled generators pump silver iodide (molecularly similar to salt) into storm clouds to coax more precipitation. Silver iodide provides sub-freezing water droplets with a nucleus on which to freeze and fall as snow or rain. Silver iodide does not create snow out of thin air. After the Great Salt Lake dropped to record low levels in 2022, Utah’s legislature expanded its cloud-seeding budget from $200,000 to $16 million, with a $5 million per year recurring allotment. Utah looks to further expand its seeding program by replacing airplanes with drones for more precise delivery, flying directly into the clouds where temperatures are optimal for ice nucleation.

Skeptics have long voiced doubts about cloud seeding’s effectiveness in mitigating aridification caused by climate change . Until SNOWIE (Seeded and Natural Orographic Wintertime clouds: the Idaho Experiment), a groundbreaking 2017 study that demonstrated clear precipitation enhancement. Scientists, policymakers, and even beneficiaries debated its efficacy. As late as 2003, the National Research Council report stated that science could not confirm significant seeding effects with high confidence. SNOWIE moved the needle. Studies from Utah’s own operational programs now estimate precipitation increases of three to thirteen percent in seeded areas. At a cost of $5 to $10 per acre-foot, cloud seeding is extremely cost-effective compared to other water supply strategies. For example, Utah's Demand Management Pilot Program pays farmers $390 per acre-foot not to irrigate , and desalination costs in California exceed $3,000 per acre-foot. Currently active improvements to cloud seeding exist. A recent report to the Utah’s Division of Water Board indicated that cloud seeding increased the state’s snowpack by 10.4%, or 200,000 acre-feet, enough water to supply over 400,000 homes.

Regional collaboration

Because snowpack remains Utah’s largest reservoir, and more runoff means fuller downstream flows, the Colorado River Basin states of Arizona, California, and Nevada each contribute $500,000 to Utah’s cloud-seeding program. Idaho separately invested $1 million in Utah's cloud seeding operations focused on the Bear River watershed, a system that serves both states. These cross-border funding arrangements reveal an important fact about how cloud seeding functions in practice: it is inherently regional, tied to watersheds and river systems that do not respect state lines.

A Nation Divided

While Western states with starkly different politics unify under a cloud-seeding umbrella, a very different legislative story is unfolding in state capitals across the rest of the country. In 2024, Tennessee became the first state in the nation to pass a law banning cloud seeding and other weather modification activities. Florida followed in 2025 by passing a sweeping geoengineering prohibition that took effect July 1, 2025—classifying unauthorized weather modification as a felony punishable by up to five years in prison and fines of up to $100,000. Montana took a narrower approach, passing Senate Bill 473, which bans broad geoengineering practices but explicitly carves out cloud seeding for water resource management. Similar legislation was introduced in 2025 in Rhode Island, Pennsylvania, North Carolina, and Texas, among others. In early 2026, Iowa’s House passed a cloud-seeding prohibition.

This legislative wave reflects a divergence in states’ political zeitgeist concerning weather modification projects. In the arid West, where ninety-five percent of Utah's water supply depends on seasonal snowmelt and ranchers, ski resorts, and hydroelectric utilities all possess a direct financial stake in snowpack levels, cloud seeding provides a practical tool in an increasingly desperate water-management toolkit. In states like Florida and Tennessee, where cloud seeding has not been practiced in decades— Florida’s program ended roughly fifty years ago—the legislation appears rooted less in water policy than in a political reaction to conspiracy theories about chemtrails and government weather control that circulated widely after Hurricanes Helene and Milton in 2024 . This current divergence makes national consensus on cloud seeding policy seem virtually impossible.

Litigation, Liability, and the Causation Problem

Cloud seeding’s litigation history in the United States is almost as old as cloud seeding itself and defined predominantly by the need to prove causation. The first weather modification lawsuit links to the 1916 California case of Hatfield v. City of San Diego, in which rainmaker Charles Hatfield contracted with the city to fill the Morena Reservoir; subsequent flooding triggered a wave of claims that ultimately settled without establishing legal precedent. In Slutsky v. City of New York, a resort owner sought an injunction, but the court denied it, holding that private parties hold no vested property rights in clouds or the moisture therein. Cases arising from seeding operations in Oklahoma and Michigan in the early 1970s—Samples v. Irving P. Krick, Inc. and Reinbold v. Sumner Farmers, Inc.—saw juries find that plaintiffs could not prove cloud seeding caused the flood damage they claimed. Absolute immunity for the federal government, based on the Flood Control Act of 1929, connected to cloud-seeding in Lunsford v United States after a 1972 flash flood in South Dakota caused property damage and over 200 deaths. Plaintiffs filed suit alleging that, prior to the flood, a contractor working for the Bureau of Reclamation of the US Department of the Interior, acted negligently while operating under threatening weather conditions. The pattern remains with remarkable consistency: even where a seeding operation can be established as a fact, connecting it to specific downstream harm has proven difficult, if not impossible, to demonstrate under standard tort causation frameworks.

Federal versus State Regulatory Power

In a Syracuse Law Review article, scholars Michael Conklin and Justin Robert Blount argue that the non-existent federal regulation over cloud-seeding, combined with the causation issues that make tort litigation ineffective, creates a legal vacuum that disproportionately harms disadvantaged communities. Manon Simon, in Enhancing the Weather: Governance of Weather Modification Activities in the United States, compares cloud-seeding regulation in California and Texas and concludes that weather modification laws across the states remain fragmented and inconsistent. The National Oceanic and Atmospheric Administration (“NOAA”) enforces the 1976 National Weather Modification Policy Act mainly by monitoring operations through required reporting of cloud-seeding operations and imposing fines of up to $10,000 for reporting failures. The case for federal regulation argues a straightforward idea: clouds do not recognize state borders. For example, a Wyoming cloud-seeding operation can deprive a Colorado watershed of precipitation that would otherwise fall there.

Yet the past two years of state legislative activity suggest that governance at a national level might not be the best solution. Perhaps, the wildly divergent legislative responses to cloud seeding across American state capitals reflect not a regulatory failure but a feature of a functioning federal system. That is, states with disparate geographies, water needs, and political cultures reach disparate conclusions about the same technology. Utah and its neighbors in the Colorado River Basin expand cloud seeding programs because their survival depends on snowpack. Tennessee and Florida banned it because their electorates, shaped by different anxieties and different weather realities, demanded prohibition. Montana threaded the needle by banning stratospheric geoengineering while protecting cloud seeding in water management programs. Montana remains the only state that requires all weather modification operations to attain an Environmental Impact Assessment (“EIA”). These are not irrational positions. They are local judgments made by local governments in response to local conditions. Professor of Water Law at Arizona State, Rhett Larson, in his book Just Add Water, suggests that “the water-security paradigm should not be led by hierarchists, entrepreneurs, or ethicists. It should be led by regionalists.” Unlike issues such as carbon emissions and global climate change, the regionalist governance of water security keeps decision-making in the hands of those most familiar with the “unique climate, geology, hydrology, economy, and culture of water.”

Utah illustrates this principle. The disastrous environmental implications of the drying of the Great Salt Lake, as well as possible reductions in Colorado River allocations, prompted the state legislature to take immediate action to channel more funding toward water management, including cloud seeding and research. The 2026 SNOWSCAPE initiative (Seeded and Natural Orographic Winter Storms Catchment Processes and Evaluation) is a collaborative research program that collects high-resolution data on key variables in cloud seeding to calibrate two highly specific measurement models. The project includes scientists from the University of Utah, the National Center for Atmospheric Research, and Utah State University. In addition, Utah launched a comprehensive trace-chemistry study to analyze snowmelt, stream water, lakebed sediments, and soils to detect silver at concentrations as low as parts per trillion. Appropriately, these innovative efforts to raise water levels throughout Utah without endangering the environment created by lawmakers and researchers best positioned to understand the State’s unique challenges.

References

Ben Winslow, Utah Now Runs the World’s Largest Remote-Controlled Cloud Seeding Program, FOX 13 NEWS (Oct. 9, 2025), https://www.fox13now.com/news/colorado-river-collaborative/utah-now-runs-the-worlds-largest-remote-controlled-cloud-seeding-program#google_vignette (last visited Mar. 24, 2026).
Sarah A. Tessendorf et al., A Transformational Approach to Winter Orographic Weather Modification Research: The SNOWIE Project, 100 Bull. Am. Meteorological Soc'y 71 (2019), https://doi.org/10.1175/BAMS-D-17-0152.1 .
Nat'l Research Council, Critical Issues in Weather Modification Research (2003), https://doi.org/10.17226/10829 .
U.S. Gov't Accountability Off., Cloud Seeding Technology: Assessing Effectiveness and Other Challenges, GAO-25-107328 (Dec. 19, 2024), https://www.gao.gov/products/gao-25-107328 .
Michael Conklin & Justin Robert Blount, Bad Policy Runs Downhill: How Cloud Seeding Jurisprudence Disproportionately Harms Disadvantaged Communities, 75 Syracuse L. Rev. 1 (2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4851009 .
Manon Simon, Enhancing the Weather: Governance of Weather Modification Activities in the United States, 46 Wm. & Mary Envtl. L. & Pol'y Rev. 149 (2021), https://scholarship.law.wm.edu/wmelpr/vol46/iss1/5 .
Margaret Manto & Addy Baird, National Political Scrutiny of Cloud Seeding Looms Over Utah, Undark Mag. (Nov. 17, 2025), https://undark.org/2025/11/17/geoengineering-scrutiny-utah.
Rhett Larson, Just Add Water: Solving the World's Problems Using Its Most Precious Resource (2020), https://global.oup.com/academic/product/just-add-water-9780190948009 .
Utah Div. of Water Res., SNOWSCAPE 2026, https://water.utah.gov/snowscape/ (last visited Mar. 24, 2026).

A Century in the Making: The Colorado River Compact Meets Record-Low Snowpack

Wed, 15 Apr 2026 15:25:36 GMT

Colorado currently faces its lowest snowpack ever recorded. Following an unseasonably warm winter and hardly any snowfall, the Natural Resources Conservation Service reports snowpack at twenty-two percent of a normal year. At the same time, the Colorado River Basin states—Wyoming, Colorado, New Mexico, Utah, Arizona, Nevada, and California—are approaching their third year of renegotiating the most important water apportionment agreement in the American West: the Colorado River Compact.

Originally negotiated in 1922 by delegates from all seven basin states and then-Secretary of Commerce Herbert Hoover, the Compact has governed the Colorado River’s use for over a century. In 1922, as now, the delegates understood the stakes. The river bound the region together, and the inhabitants of the basin states—both human and otherwise—built their lives around the river’s resources. Against this backdrop, the delegates waded through maps and then-available hydraulic data to equitably distribute a river that had already been allocated beyond its natural supply. They ultimately agreed to split the river’s flow roughly even between the Upper Basin and Lower Basin, measuring that split at Lees Ferry, Arizona. This required the upper states to allow seventy-five million acre-feet of water to flow down through Lees Ferry over a ten-year rolling average period. After setting that number, the delegates ratified the Compact and ended the states’ perpetual bickering over the river’s use, for the time being.

Unfortunately for the century that followed, however, the Compact allocated water based on data from an unusually wet period in the West’s history. In other words, the Compact—at its inception—presumed a higher supply of water than the river typically carries. Compounding the problem, the basin’s current population—forty million people—is nearly twenty times what the delegates predicted back in 1922. These key misestimations show that the basin states’ current water use is already unsustainable.

Now add this year’s record-low snowpack to the equation. Rocky Mountain snowpack typically accounts for approximately eighty percent of Upper Colorado River flow. When spring and summer hit, low snowpack in Colorado, Wyoming, and Utah will result in less water melting into streams and rivers. Notably, Colorado’s streamflow forecasts for 2026 predict below average snowmelt across all major river basins, which will cause significant water-level drops in the nation’s largest reservoirs—Lake Powell and Lake Mead. These conditions create untimely challenges for Compact renegotiations.

Today, as in 1922, the renegotiation battle is split between the three Lower Basin states of California, Arizona, and Nevada and the four Upper Basin states of Wyoming, Colorado, New Mexico, and Utah. But the process is deadlocked, and Arizona delegates already anticipate complete failure. With the current conditions of the basin’s water supply, the upper states will fall below their obligatory seventy-five million acre-feet allotment to the lower states within the next two years. Failing to deliver that allotment will trigger a legal tripwire, allowing the lower states to sue for a violation of the Compact. But a lawsuit would spark a complex legal battle that could drag on for years, and interstate litigation would place the Compact in the federal courts’ hands, which is an outcome none of the states want. To avoid hitting that tripwire and hailing seven states into contentious litigation, the lower states are pushing for mandatory cuts on Upper Basin water use during these particularly dry years. Top Upper Basin negotiators countered, however, that mandatory cuts are not on the table.

This places the Compact on a dangerously short timeline. Without substantial intervention, water levels will continue their downward trend, and reduced runoff from the Upper Basin’s snowpack may trigger the legal tripwire as early as this summer. The race is on to renegotiate the Compact before that happens. But with litigation looming and snowpack at historic lows, one thing is clear: the Colorado River is running low on both time and water.

Sources:

Alan Gionet, New Report Paints Grim Picture of Water Use Problems with Colorado River , CBS News (Dec. 26, 2025, 10:10 PM), https://www.cbsnews.com/colorado/news/new-report-colorado-river-water-use-dire-problems/ .
Colo. River Compact (1922), https://www.usbr.gov/lc/region/g1000/pdfiles/crcompct.pdf .
Colorado Snowpack Products , Nat. Res. Conservation Serv., https://www.wcc.nrcs.usda.gov/ftpref/support/states/CO/products/#state=co&element=wteq (last visited April 1, 2026).
How Much Snow for Colorado River Flow? , Geosciences and Env’t Change Sci. Ctr., https://www.usgs.gov/centers/geosciences-and-environmental-change-science-center/science/how-much-snow-colorado-river#overview (last visited March 15, 2026).
Ian James, How Failing Negotiations Could Spiral into a Bitter Fight over the Colorado River , L.A. Times (Feb. 5, 2026, 10:29 AM), https://www.latimes.com/environment/story/2026-02-05/colorado-river-negotiations-failing .
Jake Bolster and Wyatt Myskow, Colorado River Negotiators Are Nearly Out of Time and Snowpack , Inside Climate News (Feb. 4, 2026), https://insideclimatenews.org/news/04022026/colorado-river-record-low-snow-litigation/ .
Maddie Rhodes, This Winter has the Lowest Snowpack so far in Colorado History , Fox31 Denver: Weather Headlines (Feb. 5, 2026, 11:44 AM), https://kdvr.com/weather/wx-news/this-winter-has-the-lowest-snowpack-so-far-in-colorado-history/ .
Margaret Osborne, A Century Ago, this Water Agreement Changes the West. Now, the Region is in Crisis , Smithsonian Magazine (Nov. 28, 2022), https://www.smithsonianmag.com/smart-news/a-century-ago-this-water-agreement-changed-the-west-now-the-region-is-in-crisis-180981169/ .
Mike Lee and Martin Heinrich, Colorado River Talks: Securing Water for the West , The Hill (Dec. 19, 2025, 10:30 AM), https://thehill.com/opinion/energy-environment/5654255-future-colorado-river-agreement/ .
Record Low Snowpack Observed Across Much of Colorado Heading into 2026 , Nat. Res. Conservation Serv., https://www.nrcs.usda.gov/state-offices/colorado/news/record-low-snowpack-observed-across-much-of-colorado-heading-into-2026 (last visited March 15, 2026).
Shannon Mullane, Colorado River Negotiations in Murky Waters after Historic Gathering of Governors in DC , The Colorado Sun (Feb. 3, 2026, 3:51 AM), https://coloradosun.com/2026/02/03/colorado-river-governor-negotiations-dc-water-congress/ .
Steve Harris, How Did Compact Negotiators Split the Colorado River’s Flow in 1922? , The Rocky Mountain Voice (Oct. 9, 2025), https://rockymountainvoice.com/2025/10/09/how-did-compact-negotiators-split-the-colorado-rivers-flow-in-1922/ .

Up the Creek Without a Paddle: An Evolution of the Public Trust Doctrine and How It Influences Idaho’s and Montana’s Different Approaches to Public Recreational Access to Waters

Tue, 14 Apr 2026 16:33:30 GMT

Introduction

The public trust doctrine (the “Doctrine”) evolved from a form of governmental authority over specific natural resources—primarily waterways—to compelling the state to manage certain common natural resources in trust for the public. Nowadays, the public trust doctrine is a method of environmental advocacy in the United States. The Doctrine spanned both an unsuccessful attempt to compel a state to limit fossil fuel use and a successful effort to restore waters in a depleting lake. Additionally, there is continued interest in using the Doctrine to increase recreational access.

This post first explores the public trust doctrine’s evolution, from its origins in Roman law to its incorporation into English common law, and then to its transformation into the modern American public trust doctrine. It then explores how the public trust doctrine influenced water law in Idaho and Montana, and the two states’ different approaches to public recreational access to waters despite laws originating from the same doctrine. Overall, Idaho is more restrictive with public recreational access to waters. In contrast, Montana allows for broader public recreational access to waters.

I. History of the Public Trust Doctrine

Modern historians credit the origin of public trust doctrine to the Justinian Codex, which stated running water, the shores, and the sea are common property to the public. This jus publicum concept from Roman law survived, eventually taking root in English law. A similar concept is first found in the Magna Carta, which declared the Thames and Medway Rivers navigable waters and public commons for fishing or navigation. The Doctrine then formally took hold in English common law in the 17 ^th century when the King’s Bench held “sovereign ownership” applied to tidelands, and navigable waters were for public use.

After the Revolutionary War, the thirteen original states succeeded the Crown in ownership of tidelands, becoming the new ‘sovereigns’ of America. In the early 19 ^th century, Arnold v. Mundy reaffirmed the Doctrine. The plaintiff claimed the defendant trespassed on his private oyster bed and took the plaintiff’s oysters. The defendant, in response, claimed he only took the oysters below the high water mark in a tidal, navigable river. The court, siding with the defendant, held navigable rivers, along with the coasts, were “common” to all the citizens for fishing, passing, and navigation. This holding also extended to the land under the water. Martin v. Waddell, another oyster farm dispute, affirmed Arnold’s holding. Three years after Martin, the Supreme Court held in Pollard’s Lessee v. Hagan that because new states were admitted to the union “on equal footing” as the original states, the new states received the same rights as the original thirteen states. Thus, any new state received an automatic transfer of title to lands underlying navigable waters at the time of statehood. Propeller Genesee Chief v. Fitzhugh then held that state ownership expanded to navigable, non-tidal waters and their beds. Later, the Supreme Court released The Daniel Ball test, the federal test for navigability. The Daniel Ball test states that waters are navigable when they are used as highways for commerce, over which customary trade and travel may be conducted. By the mid 19 ^th century, American law well established that states were presumed to hold title to both the beds, banks, and surface of navigable streams.

In the late 19 ^th century, the Supreme Court decided the Doctrine’s seminal case: Illinois Central Railroad Co. v. Illinois. The Illinois legislature granted the Railroad 1,000 thousand acres of submerged land beneath the Chicago waterfront. Later, the legislature attempted to rescind the grant, leading to the lawsuit. The Court concluded a state cannot transfer lands under navigable waters to private parties, as it holds them in trust for the public for fishing, navigation, and commerce. Illinois Central not only affirmed state authority over submerged beds, but also established the idea the state was a trustee for the public of the submerged lands, and private parties could not “obstruct” the public’s access to fishing, navigation, or commerce. Shively v. Bowlby then followed, affirming Illinois Central’s holding. Shively also added that each individual state’s laws govern public trust waters. Once a concept of Roman and English law evolved into American’s modern public trust doctrine: under each state’s laws, the state, as trustee for the public, owns the beds of navigable rivers and tidelands. These trusts open to the public for commerce, navigation, and fishing.

II. The Public Trust Doctrine Relating to Idaho's Recreational Access

Idaho follows the public trust doctrine and allows recreational access to navigable waterways. However, if the waterway is non navigable, recreational access is not allowed, as it is deemed private property.

Idaho’s constitution declares: “ all water originally appropriated for private use, but which after such appropriation has heretofore been … is hereby declared to be a public use, and subject to the regulations and control of the state.” The Idaho Supreme Court held in Callahan v. Price that Idaho holds title to submerged lands of navigable waterways. To determine what waters and submerged beds are under state control, Idaho uses the federal test of navigability. Originally, Idaho’s public trust doctrine only covered navigation, but has been expanded to recreation. Earlier caselaw out of the Idaho Supreme Court supported recreational access: Southern Idaho Fish and Game Association v. Picabo Livestock, Inc., upheld public access to the beds of navigable streams, and Kootenai Environmental Alliance, Inc. v. Panhandle Yacht Club, Inc., upheld the state has title to the beds of all navigable bodies of water below the natural high-water mark.

However, earlier caselaw also upheld private ownership of non-navigable stream beds. Mesenbrink v. Hosterman reaffirmed the principle that riparian landowners also owned the beds of non-navigable bodies of water and treats unauthorized access to water as a trespass. In 1996, Idaho codified— and limited—the public trust doctrine in the Public Trust Doctrine Act (“PDTA”). The PDTA codifies Idaho’s waters as held in the public trust, and includes recreation as a suitable purpose.

III. The Public Trust Doctrine Relating to Montana's Recreational Access

Montana’s constitution enshrines the public trust doctrine: “ All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.”

The Supreme Court of Montana, in Montana Coalition for Stream Access, Inc. v. Curran, decided against using The Daniel Ball test to determine public access to waters, and instead held that if a waterway was used for recreational boating rather than as highways for commerce, the water will still be considered navigable. Later in the opinion, the court decided the ownership of the streambed to be irrelevant, and the public can access public waters up to the high water mark. Further, the Doctrine, along with Montana’s constitution, do not allow a private party to “interfere” with public recreational access of the state’s waters. Montana Coalition for Stream Access, Inc. v. Hildreth soon followed, reaffirming Curran’s holding and cementing public recreational access to waters within Montanan law.

In response to these decisions, the Montana legislature passed the Stream Access Laws (“SAL”) which codified the public’s right to recreate in waters regardless of public or private ownership of the land underlying the waters. Within the SAL, Montana divides recreational waters into two categories: Class I and Class II waters. Class I waters are types of navigable surface waters, determined either by the federal navigability test, or are waters capable of log floating or transportation of furs and skins. Class II waters are any other type of water, except for lakes. Galt v. State upheld these classifications, affirming both classifications of waters are for public recreational access. Overall, Montana’s recreational access can be summarized to allow recreation on any surface water without regard to public or private ownership or whether the surface water is navigable.

Conclusion

Differences in public recreational access to waters in Idaho and Montana stem from variations in their constitutions, case law, statutory codifications of the public trust doctrine, and the extent to which each state relies on the federal navigability test. Idaho’s constitution declares “water is originally appropriated for private use.” This is then followed by the language “waters after appropriation” are for public use. Through statutory interpretation, a reasonable person can determine that Idaho’s constitution prioritizes private ownership, as water is first mentioned for private use, and, following appropriation, can then be used for public use. In contrast, Montana’s constitution declares “all” waters are for public use, which is then followed by the language “subject to appropriation.” Montana’s constitution prioritizes public ownership, as ‘all’ water is first mentioned for public use, after which it can be “appropriated” for private use.

Idaho follows the federal navigability test to determine public or private ownership of the waters, which then determines whether public recreational access is allowed. On navigable rivers, Idaho allows public recreational access, since the state owns the waters and submerged beds. On non-navigable rivers, Idaho does not allow public recreational access, since the littoral landowner owns both the waters and submerged beds. Montana disregards the federal navigability test to determine ownership of submerged lands. Both navigable and non-navigable rivers are open to public recreation, as to the ownership of the streambeds is irrelevant.

Additionally, Idaho codified the public trust doctrine in the PDTA, while Montana codified it in the SLA. On one hand, the PDTA explicitly limits the public trust doctrine. On the other hand, the SLA expands recreational access to waters, thereby expanding the public trust doctrine.

Sources:

Erin Ryan, A Short History of the Public Trust Doctrine and its Intersection with Private Water Law, 39 Vir. Envtl. L. J. 135, 137 (2020)
Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)
National Audubon Society v. Superior Court of Alpine County, 658 P.2d 709 (Cal. 1983) Cert denied, 464 U.S. 977.
Ralph W. Johnson and Russell A. Austin Jr., Recreational Rights and Titles to Beds on Western Lakes and Streams, 7 Nat. Res. J. 1 (1967)
The Public Trust Doctrine: What it is, Where it Came from, and Why Colorado Does Not (And Should Not) Have One: 16 U. Denv. Water L. Rev. 17 (2012).
Justinian, the Institutes of Justinian 2.1.1 (Thomas Cooper trans. & ed. 1841).
Arnold v. Mundy, 6 N.J.L 1 (N.J. 1821).
Pollard’s Lessee v. Hagan, 44 U.S. 212, 222 (1845).
Reed D. Benson, Burke W. Griggs, & A. Dan Tarlock Water Resource Management: A Casebook in Law and Public Policy at 521 (Foundation Press, 8th ed. 2021).
The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870).
Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 452 (1892)
Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich L. Rev. 471, 478 (1970)
Shively v. Bowlby, 152 U.S. 1, 26 (1894).
26 Idaho Const. Art. XV § 1.
Callahan v. Price, 146 P. 732, 735 (Idaho 1915).
Idaho Code § 58-202 (1996) (referencing The Daniel Ball Test).
Newton v. MJK/BJK, LLC, 469 P.3d 23, 29 (Idaho 2020) (referencing Idaho Forest Indus., Inc. v. Hayden Lake Watershed Improvement Dist., 733 P.2d 733, 737 (1987)).
Southern Idaho Fish and Game Association v. Picabo Livestock, Inc., 528 P. 2d 1295 (Idaho 1974)
Ritter v. Standal, 566 P.2d 769 (Idaho 1977)
Kootenai Environmental Alliance, Inc v. Panhandle Yacht Club, Inc., 671 P.2d 1085 (Idaho 1983)
Mesenbrink v. Hosterman, 210 P.3d 516, 520 (Idaho 2009) (reaffirming Callahan v. Price, 146 P. 732, 735 (Idaho 1915)).
Idaho Code § 58-1201(6) (1996).
Idaho Code § 58-1203(3) (1996).
Mont. Const. Art. IX. § 3(3).
Montana Coalition for Stream Access, Inc. v. Curran, 682 P.2d 163, 169 (Mont. 1984) (quoting Lamprey v. Metcalf, 53 N.W. 1139, 1143 (Minn. 1893)).
Mont. Code Ann. § 23-2-302(1) (1985).
Mont. Code Ann. § 23-2-301(2) (1985).
Mont. Code Ann. § 23-2-301(2)(3) (1985).
Galt v. State, 731 P.2d 912, 915 (Mont. 1987)
In re Adjudication of Existing Rights to the Use of all Water, 55 P.3d 396, 404 (Mont. 2002).

An Update on the Post-2026 Operating Guidelines: Slowed Negotiations and Missed Deadlines

Tue, 09 Dec 2025 20:39:29 GMT

Last spring, my colleague wrote a post forecasting uncertainties surrounding the Post-2026 Operating Guidelines for the Colorado River Basin States’ negotiation. Now, just seven months later, the November deadline for state consensus regarding the Basin’s management has passed and precarity has compounded. Without an agreement by the new, February 14th, 2026 deadline, the federal government is slotted to assume a managerial role over the Basin’s water. While this outcome bears a familiar mark of uncertainty, it also carries major implications for the Tribal Nations that hold rights to the Basin. This post briefly summarizes the negotiations, their progression, and an important tribal consideration.

To briefly refresh or acquaint new readers to this matter: the Post-2026 Operating Guidelines represent a complex management scheme for Lake Mead and Lake Powell’s water operations. In essence, the Guidelines determine how much water can be removed from the two reservoirs. Owing to the reservoirs’ ubiquity in the Western United States, these Guidelines will implicate the water rights of seven states and thirty Tribal Nations. The reality is multiple stakeholders divvy up a dwindling resource, negotiate slowly, and, resultingly, leave many unsure whether the States will reach consensus after recently missing the November 11 ^th deadline. Many variables factor into the stalling negotiations, including the Upper Basin’s reluctancy to accept water cuts and electoral accountability to respective state populaces. Important considerations for states with large tribal presences complicate these factors, like Arizona, where twenty-two of the Basin’s affected Tribes are located.

While from the outset, several Tribes held senior water rights—entitling them to priority over junior right-holders—many Tribes have been forced to bargain away this advantageous position for much needed infrastructure. This phenomenon leaves Tribes within the Basin much more susceptible to State decisions to accept water cuts, hinging tribal access to the already scarce resource on interstate bargains like those now set to conclude in February.

Together with the obvious challenges created by the missed deadline and fast-approaching February fallback, these dynamics create large obstacles for the Basin states as they look to reach consensus in the new year. Unfortunately, as so often occurs, tribal nations are left hanging in the balance awaiting state compromise.

SOURCES

· Allie Parker, The Impacts of the Post-2026 Colorado River Discussions on Tribal Water Rights, U. Denv. Water L. Rev., (Apr. 3, 2025), https://www.duwaterlawreview.com/the-impacts-of-the-post-2026-colorado-river-discussions-on-tribal-water-rights .

· U.S. Bureau of Reclamation, Colorado River Post 2026 Operations, https://www.usbr.gov/ColoradoRiverBasin/post2026/ (last visited Oct. 30, 2025).

· The Colorado River, Post-2026 Negotiations, https://coloradoriver.com/post-2026-negotiations/ , (last visited Oct. 30, 2025).

· Shannon Mullane, What’s holding up the Colorado River negotiations? Experts break down the sticking points, Colorado Sun (Oct. 30, 2025), https://coloradosun.com/2025/10/30/colorado-river-negotiations-experts-sticking-points/ .

· Arizona Department of Education, 22 Federally Recognized Tribes in Arizona, https://www.azed.gov/oie/22-federally-recognized-tribes-arizona (last visited Oct. 29, 2025).

· NRDC, Colorado River Basin Tribes Address a Historic Drought–and Their Water Rights–Head-On, https://www.nrdc.org/stories/colorado-river-basin-tribes-address-historic-drought-and-their-water-rights-head (last visited Oct. 30, 2025).

· Michael Elizabeth Sakas, Historically excluded from Colorado River policy, tribes want a say in how the dwindling resource is used. Access to clean water is a start, CPR News, https://www.cpr.org/2021/12/07/tribes-historically-excluded-colorado-river-policy-use-want-say-clean-water-access/ (Dec. 7, 2021).

Historically Low Snowpack in the Southern Rockies and its Effects on the Arid Southwest

Tue, 15 Apr 2025 18:35:26 GMT

Drought on Arrival: The Southwest’s Grim 2025 Outlook

Introduction

The Southern Rocky Mountains, particularly the Sangre De Cristo mountain range in New Mexico, is suffering through an abysmal winter. While El Niño years have historically favored a deeper snowpack for more northern and coastal regions, such as the Cascades and Northern Rockies, this year has been particularly rough for the southern reaches of North America’s largest mountain range. As of March 13th, 2025, Opensnow data currently shows that the snowpack for Taos, the largest ski resort in New Mexico, sits at 26% of average. While this figure is certainly disappointing for skiers in the region, the implications of this reach much further than outdoor recreation. The American Southwest heavily depends on the water that melts from the yearly winter snowpack for drinking water, irrigation, and a plethora of other uses. With almost one quarter of the average snow melt available for beneficial use, the prior appropriation system of this region is set to experience the most difficulty it has had in years in ensuring that water rights holders receive their yearly allocation.

The Severity of the Situation

To fully understand the severity of the lack of snow this region has experienced during the 2024-25 winter, some additional figures and statistics are required. Snow Telemetry (SNOTEL) snow water equivalent (SWE) values show that New Mexico’s eight basins sit at 0%, 5%, 19%, 21%, 23%, 25%, 37%, and 58% of the 1991-2020 median. Further, The Durango Herald opines that the temperature of the region has consistently sat at 11-22 degrees Fahrenheit above average this winter. This figure is in line with a claim by Tony Bergantino, the director at the Wyoming State Climate office, who stated that New Mexico had its warmest October-December since 1895. Not only does this provide evidence of far less snowfall, but it also shows that the snow that has fallen has melted and flown downstream much earlier than it normally would. This reality has proven to be significantly impactful to reservoirs across the state of New Mexico as well. A report published by the Natural Resources Conservation Service on March 1 shows that the reservoirs in the Lower Rio Grande, Rio Chama-Upper Rio Grande, and Pecos basins sit at 11%, 10%, and 7%, respectively. The report also discusses the forecasted streamflow volumes in relation to the 1991-2020 median. These figures are equally as abysmal, as the Lower Rio Grande, Zuni, Gila-San Francisco, Pecos, and Rio Chama-Upper Rio Grande Basins are projected to be at 4%, 22%, 35%, 36%, and 39%, respectively this spring and summer. All these statistics paint a picture of a scary reality regarding the availability of water across the American Southwest in 2025, with many of these figures providing evidence of record-breaking drought conditions that will have countless ripple effects on humans, wildlife, and the landscape of the region.

Ancillary Effects

While not directly related to water, this discussion could not take place without mentioning the impacts a drought of this severity will have on wildfires across the region. An article by Source NM states that even before spring has officially started, two red flag warnings have already been issued this year by the National Weather Service. The first warning was unbelievably issued on January 4, while the second came just over a month later, on February 5. This severe drought, combined with several other situational factors, has created a dire outlook regarding the potential impact that wildfires could have on the state throughout the rest of 2025. Another article by Source NM asserts that fine fuels, which provide the ability for blazes to grow rapidly, are abundant due to two consecutive years of plentiful precipitation preceding this historic drought. Plants like grass and pine trees were able to thrive under wet conditions over the last 24 months but have now become dry and easily ignitable due to the lack of recent rain and snowfall. An article by the Denver Post provides a bleak outlook for this situation, as dry and hot conditions are predicted to take hold over the coming spring months. Biologically, this is the perfect storm for a fire season of epic proportions, a situation created largely by the abysmal winter this region of the United States has suffered through.

Unfortunately, the political situation we find ourselves in in the United States is set to exacerbate this situation even further. According to Source NM, the Department of Agriculture recently let go of 34,000 employees, and 75% of them were equipped with firefighting capabilities. Further, the same article states that two firefighting dispatching stations in some of the most fire-prone areas of New Mexico, including the Gila National Forest, have been shut down. Additionally, also highlighted by Source NM , President Trump’s decision to gut the probationary workforce and enact a temporary hiring freeze on seasonal employees across federal agencies such as the National Forest Service, Bureau of Land Management, and Department of the Interior limits the ability for the government to put up a fight when intense blazes inevitably break out. The West is clearly unprepared to handle what could be a historically destructive wildfire season headed for us in the coming months, as a potentially deadly combination of factors have combined to create a truly bleak outlook for the 2025 fire season.

Effects on the Prior Appropriation System

The extreme decline in water across New Mexico’s streams and reservoirs is set to impact the state’s prior appropriation system significantly. According to the Bureau of Reclamation , New Mexico is one of seven states reliant on the Colorado River for fresh water utilized for a variety of purposes, including irrigation, municipal, and commercial use. The Bureau of Reclamation further explains that New Mexico receives their allocation of Colorado River water via the San Juan-Chama project, which diverts water from the San Juan River, a major tributary of the Colorado River, to the Rio Grande Basin. This reality presents a difficult situation for not only New Mexico, but also the states of Colorado, Wyoming, Arizona, Nevada, Utah, Arizona, various Native American tribes across the region, and Mexico, as they all rely on the Colorado River to supply this arid region with such a valuable resource.

New Mexico is no stranger to drought, so they have implemented measures to prepare for bad winters, such as the one they have experienced in 2024-25. According to the Colorado Environmental Law Journal , New Mexico created the Strategic Water Reserve as a means of navigating interstate water agreements, such as the 1922 Colorado River Basin Compact that governs their allocation. This allows the state to appropriate funds to purchase additional water rights in times of shortage, such as right now. However, despite these preventative measures, New Mexico still finds themselves in a precarious position. The Colorado Environmental Law Journal further opines lower basin states like California still have superior bargaining power in times of drought because San Juan-Chama authorizing language states that New Mexico must take reductions of their Colorado River Basin to ensure that these states' senior rights are fulfilled. Considering this current drought has also substantially affected other southwestern states, like Arizona and Nevada, this places New Mexico in a precarious position. The primary tenant of the prior appropriation system, “first time in time, first in right”, creates a system where junior rights holders are simply not made whole in times when their inferior rights cannot be fulfilled.

New Mexico recognizes that this is an unfortunate reality the arid west must come to grips with, and developed a system called Priority Administration to address drought conditions under the prior appropriation system. The Utton Center states that under this system, the State Engineer holds a large amount of discretion as to how to curtail usage to adhere to current drought conditions. The process begins with the State Engineer identifying all the priority dates within a stream system. Then, a final list of all the water rights in the system is published, giving rights holders the chance to appeal the date associated with their right. Due to New Mexico’s agricultural history, many of the most senior rights in the system are held in extremely rural, agrarian areas. This pits them against large urban areas like Santa Fe and Albuquerque, creating a situation where the state may experience significant negative economic impacts if one of these senior rights holders places a priority call against a junior, urban rights holder. This reality highlights the significant difficulty states in the arid west have in dealing with a drought of these extreme proportions. While Priority Administration is a tool of last resort, the extreme figures described in the previous section point to a high likelihood of the system being implemented in 2025, creating a troubling outlook for the future of New Mexico’s water adjudication system.

Conclusion

It has become abundantly clear that New Mexico is in an extremely precarious position as we shift from winter to spring in 2025. Time is quickly running out for the region to experience a pattern shift that will result in a significant amount of snowfall. The state as a whole must begin preparing for what is looking to be one the driest years in recorded history. The effects on the state’s ability to ensure that rights holders receive their allocation will inevitably be affected greatly, as they will be forced to navigate some of the biggest strains the prior appropriation system has ever seen placed on it. The impacts of this drought will likely be exacerbated by a potentially historic fire system, which unfortunately requires even more water to mitigate potentially catastrophic damage to public lands and private property. 2025 is set to put the adequacy of the prior appropriation to the test, and as we navigate the increasingly impactful effects of climate change, it will be fascinating to see if this comprehensive system of water allocation will be able to keep up.

Sources

OpenSnow, Taos Snow Report, https://opensnow.com/location/taos/snow-report, (last visited Mar. 13, 202).
U.S. Drought Monitor, Snow Drought: Current Conditions and Impacts in the West, Drought.gov (Mar. 6, 2025).
Danielle Prokop, New Mexico Snowpacks in the Red; Dry and Hot Weather Expected, The Durango Herald (Mar. 13, 2025).
Nat. Res. Conservation Serv., New Mexico Basin Water Supply Outlook Report, U.S. Dep’t of Agric. (Mar. 1, 2025).
Danielle Prokop, New Mexico Snowpacks in the Red; Dry and Hot Weather Expected, Source N.M. (Mar. 13, 2025).
Patrick Lohmann, 'It's Bad': How Drought, Lack of Snowpack and Federal Cuts Could Spell Wildfire Disaster, Source N.M. (Mar. 10, 2025).
Conrad Swanson, Drought, Fire and Climate Change Put the West—and New Mexico—at Risk, Denver Post (Mar. 11, 2025).
U.S. Bureau of Reclamation, Colorado River Basin, U.S. Dep’t of the Interior (last visited Mar. 13, 2025).
U.S. Bureau of Reclamation, Upper Colorado River Basin Projects, U.S. Dep’t of the Interior (last visited Mar. 13, 2025).
Katherine H. Tara & John Fleck, Water Rights and Environmental Justice in the West, Ctr. For Env’t L. & Justice.
Utton Transboundary Resources Ctr., Priority Administration of Water Rights, Univ. Of New Mexico.

The Impacts of the Post-2026 Colorado River Discussions on Tribal Water Rights

Thu, 03 Apr 2025 15:41:19 GMT

Why Tribal Nations Can’t Be Left Out of the Next Chapter in Colorado River Management

The Bureau of Reclamation 2007 Interim Operating Guidelines for the Colorado River are set to expire in 2026 and at the moment the seven Basin States Representatives are working on the Post-2026 Operating Guidelines. The uncertainty for the scarce resource of water is at the forefront of every lawmaker’s mind in the Western United States. Tribal Nations were left out of the original 1922 Colorado River Compact and now, as the expiration date approaches and negotiations become more urgent, Colorado River Tribal Water Rights Settlements are hoping to be approved by the 119 ^th Congress as the Post-2026 Guidelines are being negotiated.

Currently, the Navajo Nation is seeking ratification of water rights through S.953 and H.R.2025, the Northeastern Arizona Indian Water Rights Settlement Act, after it did not have the opportunity for NAIWRSA to be put to a vote before the 118 ^th Congress in 2024. In January of 2025, the Navajo Nation was celebrating the decree for their Utah Upper Basin water rights following the passage of the Navajo Utah Water Rights Settlement and is now moving towards implementation. But now, the seven Basin States are worried about the Post-2026 Operating Guidelines. This time around, the Colorado River looks a little different than it did 103 years ago. Based on available records at the time, the Colorado River Compact assumed that there would be 16.4 Million Acre Feet flowing on average each year, but the reality has been much lower than that. Since 1922, there have been a number of additional agreements and court decisions that address the Colorado River that have been coined as the “Law of the River” and Post-2026 is the next chapter in the Colorado River’s management history.

NAIWRSA is set to settle water rights for the Navajo Nation, Hopi Tribe, and San Juan Southern Paiute on the Colorado River, Little Colorado River, and relevant groundwater. Many members of these tribes do not have access to running water in their homes. Navajo President Nygren stated in a testimony before the House Natural Resources Committee, “[m]ore than 30 percent of Navajo households do not have running water and rely on hauling water.” The passing of this settlement will secure clean and reliable sources of water for the tribal communities.

In 2024, many Basin State submitted comment letters to the congressional hearings supporting NAIWRSA but also stated concerns that were holding them back from supporting a consensus for the passage. These tribal nations need this water and settlement to sustain their communities into the future, so it is not an option to push off settlement any longer.

The issue is further complicated by changes in funding from the Trump Administration. It is yet to be seen exactly how this will impact the Colorado River Post-2026 negotiations, but there are several funding streams aimed at helping to conserve water and limit the impacts of drought for the future that have been defunded. This has the potential to harm everyone that relies on the Colorado River for their water, including tribal nations, members of the seven Basin States, the United States as a whole, and it may even impact international implications as a water source for Mexico. Tribes are continuing to keep the pressure on, but the seven Basin States need to split their attention between NAIWRSA and Post-2026 for the good of everyone in the United States.

SOURCES

U.S. Bureau of Reclamation, Colorado River Basin Post-2026 Planning, https://www.usbr.gov/ColoradoRiverBasin/post2026/index.html (last visited March 17, 2025).
Management of the Colorado River: Water Allocations, Drought, and the Federal Role, Congressional Research Service, The Congressional Research Service and the American Legislative Process, R45546 (2018), https://crsreports.congress.gov/product/pdf/R/R45546 .
Nygren, Dr. Buu, Testimony before the House Committee on Natural Resources, Subcommittee on Water, Wildlife, and Fisheries, 118 ^th Cong. (July 23, 2024), available at https://naturalresources.house.gov/uploadedfiles/testimony_nygren72324.pdf .
Navajo Nation and state of Utah reach another water rights milestone, Utah Dep’t of Nat. Res. (Feb. 18, 2025), https://naturalresources.utah.gov/dnr-newsfeed/navajo-nation-and-state-of-utah-reach-another-water-rights-milestone/#:~:text=SALT%20LAKE%20CITY%20(Feb.,the%20Navajo%20Nation%20in%20Utah .
Trump Freezes $4 Billion to Keep the Colorado River Flowing, Audacy (Feb. 25, 2025), https://www.audacy.com/wwjnewsradio/news/national/trump-freezes-usd4-billion-to-keep-the-colorado-river-flowing .
Ali Longwell, Lawmakers get update on post-2026 Colorado River basin negotiations, Steamboat Pilot & Today, (Feb. 20, 2025) https://www.steamboatpilot.com/news/lawmakers-get-update-on-post-2026-colorado-river-basin-negotiations/ .

Regulatory Reforms and Opportunities for Geothermal Energy Development in Colorado

Tue, 21 Jan 2025 16:46:50 GMT

Balancing Renewable Energy Goals, Land Use Challenges, and Evolving Water Rights.

Colorado has adopted significant and comprehensive policies to address carbon emissions in the state and has set goals to greatly reduce carbon emissions in the near future. To reach these goals, the state will need to rapidly develop renewable energy projects. However, land use and development regulations often pose challenges for private developers seeking to build these types of projects.

Last year, the Governor signed Senate Bill 24-212, the Renewable Energy Projects Act, which recognized that there may be opportunities to streamline and expedite permitting of renewable energy projects. The main purpose of the law is to provide local governments with technical assistance in crafting regulations governing the siting of commercially viable renewable energy projects and commercial energy transmission facilities. Although the law emphasizes wind and solar power in its legislative purpose, local governments in the State should also take advantage of the technical assistance to craft regulations that streamline commercial geothermal energy projects. This is especially pertinent because the Colorado Energy Office recently approved $7.7 million in grant awards to encourage exploration and development of geothermal energy in the state.

Meanwhile, state law governing geothermal energy and water use has recently changed. For decades the Colorado Geothermal Resources Act included a declaration that the doctrine of prior appropriations should be modified to permit the full economic development of geothermal resources. This provision was repealed in 2023 when the state passed SB 23-285, Energy and Carbon Management Regulation in Colorado, a bill that, among other things, bifurcated the authority to regulate geothermal operations between the state engineer and the Energy and Carbon Management Commission (formerly known as the Oil and Gas Conservation Commission). This affects the future of geothermal development across the state, particularly as it relates to water rights.

Colorado has high potential for geothermal energy generation, but this potential was difficult to tap into in the old regulatory framework for several reasons. First, geothermal energy facilities typically use underground water as a medium for heat exchange, meaning the wells needed to produce geothermal energy are subject to doctrine of prior appropriation. Second, the regulation of underground water rights for geothermal wells was the exclusive authority of the state engineer, and a permit was required for any type of geothermal well. Lastly, even though the state engineer could waive permit requirements for nonsconsumptive uses of water, it was unclear if the waiver applied to binary geothermal power systems that reinject appropriated groundwater.

SB 23-285 sought to address this confusion and further streamline geothermal energy production by changing the regulatory framework. In the new regulatory framework, deep geothermal operations, like those that can provide reliable commercial energy, are under the exclusive regulatory authority of the Commission while shallow geothermal operations, like those used for a residential heating system, remain under the authority of the state engineer. The state engineer is also bound to issue a permit so long as the appropriation does not injure another’s vested water rights, and the water used by the geothermal facility has been determined to be nontributary groundwater. The Commission’s first set of regulations for deep geothermal operations were released in August of 2024, and they are similar to those that govern oil and gas development, allowing the Commission to approve or deny permits to protect health and safety while allowing local governments to implement stricter standards.

It remains to be seen how much these recent changes in law and grants of money will affect future geothermal development and exploration in the state. Meanwhile, taking a regulatory approach too similar to that which governed extractive oil and gas industries may raise some eyebrows among some in environmental groups. On the other hand, the Renewable Energy Projects Act also requires the Colorado Energy Office to report on how renewable energy projects, including geothermal energy projects, impact wildlife resources, as well as conduct public hearings on these matters. Given that there are currently no commercially operating geothermal electricity generation facilities in the state, Colorado is still in the early stages of any such development and rules will continue to evolve.

SOURCES

S.B. 23-016 (signed 11 May 2023), https://leg.colorado.gov/sites/default/files/2023a_016_signed.pdf.
S.B. 24-212 (signed 21 May 2024), https://leg.colorado.gov/sites/default/files/2024a_212_signed.pdf.
Colo. Rev. Stat. § 29-20-401 et seq.
Colorado Energy Office, Polis Administration Announces $7.7 million in Awards for Geothermal Energy Projects, https://energyoffice.colorado.gov/press-releases/polis-administration-announces-77-million-in-awards-for-geothermal-energy-projects (24 May 2024).
C.R.S. § 37–90.5–102(1)(c) (repealed by Laws 2023, Ch. 235 (S.B. 23-285), § 5, eff. July 1, 2023).
S.B. 23-285 (signed 22 May 2023), https://leg.colorado.gov/sites/default/files/2023a_285_signed.pdf.
Bureau of Land Management Press Release, Colorado collaborate to advance efficient geothermal development (29 Mar. 2011), https://www.blm.gov/press-release/bureau-land-management-colorado-collaborate-advance-efficient-geothermal-development.
C.R.S. § 37-90-137(2)(b).
C.R.S. § 37-90.5-106 (1)(a)(I).
C.R.S. § 37-90.5-107(1).
Colo. Code Regs. 402-10, 6.1.2.
Justin Plaskov, Geothermal’s Prior Appropriation Problem, 83 Univ. Colo. L. Rev., 257, 281-82 (Winter 2011)
Colo. Code Regs. 402-10, 14.1.
C.R.S. § 37-90.5-106(1).
C.R.S. § 37-90.5-107(1)(b).
Energy and Carbon Management Commission Rules, 1300 Series – Deep Geothermal Operations, https://ecmc.state.co.us/documents/reg/Rules/LATEST/1300%20Series%20-%20Deep%20Geothermal%20Operations.pdf; Draft Regulations (available at https://drive.google.com/file/d/1MM18-MlIdg2ZeidIMdFgyFhLkR67Agma/view).
Chase Woodruff, Colorado oil and gas regulators adopt ‘deep geothermal’ drilling rules, Colorado Newsline, https://coloradonewsline.com/2024/08/13/colorado-oil-gas-deep-geothermal-rules/ (13 Aug. 2024, 2:43 PM).

After Hurricane Helene: Lessons on Law, Water, and Justice in the Heart of Appalachia

Fri, 25 Oct 2024 20:28:08 GMT

Please consider donating to Helene Rebuild Collaborative at hurricanehelenewnc.org.

I arrived in Asheville, NC, on October 5th to assist my longtime friend Sam Iatarola, the CFO of the Helene Recovery Collaborative (“HRC”), in providing disaster relief assistance to greater Appalachia and Western North Carolina.

Sam’s story began with three friends in a pickup truck at hour zero, delivering resources to anyone who needed help in the immediate aftermath of Hurricane Helene. They performed life-saving search and rescue missions, coordinated with other organizations despite the lack of cell service, and established a network of Starlink satellite internet to communities in need.

Within days, HRC was established and grew exponentially, attracting hundreds of volunteers and building a full-time staff of fifteen. As soon as communication was established, HRC’s network expanded from Asheville across Western North Carolina and into parts of Eastern Tennessee. In the chaos of such rapid growth, I was brought on as an administrative consultant to help guide this incredible organization in its mission to rebuild Appalachia. It was an odd combination of experience as an outdoor guide, EMT, law student, and administrator that allowed me to jump into the midst of this relief effort.

While consulting, I had time to witness the full extent of Hurricane Helene's devastation in greater Asheville. It was awful. Hundreds of lives were lost, and thousands of structures were damaged or destroyed—devastation I never imagined could come from a hurricane deep in the Appalachian Mountains. Serious environmental disasters followed the hurricane, PVC pipes were lifted from a pip manufacturer and were embedded in the French Broad River for miles; and a plastics plant spill in Marshall, North Carolina rendered the water and mud so corrosive that it melted the rubber muck boots of our volunteers. When I arrived, about seven days after the hurricane, most of Asheville was still without running water or electricity, as the utilities were either overloaded or destroyed.

Although I was brought in as a consultant, the legal side of my brain was never fully turned off. This disaster will undoubtedly clog North Carolina’s legal system for decades as toxic torts, CERCLA cases, and other legal actions follow the hurricane’s fallout. Burst dams have threatened the region's hydroelectric stability, and there are likely hundreds of evictions, eminent domain, and other housing issues plaguing those affected by the hurricane.

Worse, the disproportionate impact of the hurricane on underserved communities is impossible to ignore. One of my most profound experiences in North Carolina was visiting Swannanoa, a small riverside town that bore the brunt of the French Broad River’s flood. I visited a trailer park where every home was labeled "unsafe," and each lot was now designated a flood zone by Buncombe County. The residents, who already lacked the resources to leave, are now facing a legal battle against the county—a battle they are unprepared to fight and one they likely cannot afford. It will take a team of committed volunteer lawyers to give them the shot they deserve at receiving safe housing. This experience made it painfully clear that the legal system is not designed to address the needs of communities most affected by natural disasters, and those who are already marginalized and underserved are being left out to dry.

Yet, my mind wandered to what I know best: water law. Out West, there isn’t enough water; out East, there’s too much water—a story we hear time and again. As I heard stories of people trading water bottles for food and saw water trucks driving over two hours just to find potable water, the distinction between the two regions became less clear and more tragic. Natural disasters like Helene expose the vulnerabilities in our water infrastructure, leading me to wonder: how would Western water law, particularly prior appropriation, handle a disaster like this? What happens if debris blocks the flow of the Colorado River? How would our systems of ditches cope with a disaster that overwhelms our capacity to irrigate?

At first, I wasn’t sure if disasters on the scale of hurricanes occur out West. But upon reflection, any amount of forest fires, landslides, avalanches, or volcanic eruptions could all substantially threaten significant rivers. How does prior appropriation function when confronted by extreme strains in water supplies–even worse strains than caused by a 20-year megadrought in Colorado? I’m not sure we know, but the Western water regime may be ill-equipped to handle calamities on the scale of Hurricane Helene.

It has been nearly twenty-five days since Hurricane Helene hit North Carolina, and my friends are still delivering resources to the most vulnerable communities. While 95% of Asheville now has non-potable water, many residents in the hollers of Western North Carolina face a winter without heat, running water, or basic sanitation. The suffering from Helene is far from over, but we must study and understand the lessons this disaster offers as soon as possible. "Once in a generation" disasters are now a regular occurrence. How we respond to these lessons and what systems we build to account for a new century of natural disasters is for us to decide.

Zachary Alberts is the Editor-in-Chief of the Water Law Review. His love for the whitewater and community of Western North Carolina inspires him every day.

Ending the Drought for Indigenous Peoples and their Water Sovereignty

Fri, 20 Sep 2024 04:37:23 GMT

1922 Colorado River Compact

The initial allocation of water established in the 1922 Colorado River Compact did not include tribal nations. As a result, water rights conflicts between the thirty federally recognized tribal nations that depend on the Colorado River Basin (“CRB”) for water, and seven U.S. states and numerous agricultural and municipal water agencies, have existed since the Compact’s inception. Now, over a century later, this issue persists, with 12 of the 30 federally recognized nations in the CRB facing unresolved water rights claims. While approximately twenty-five percent of the water from the basin is legally allocated to federally recognized tribal nations this percentage is likely to increase as other tribal nations’ claims await settlement. Although some Indigenous nations now hold legal rights to Colorado River water, many are unable to access it, due to insufficient water infrastructure, or to fully utilize it, due to restrictions on their ability to lease water to non-reservation users.

These issues compounded to create severe inequities for Indigenous nations in the region, which frequently experience a lack of access to clean running water, high water costs, and health disparities. Overcoming these challenges is important in its own right; however, any legal shifts in this domain also bear sweeping implications for Indigenous sovereignty. Two ongoing legal developments, offered here as case examples, illustrate challenges to securing Indigenous water

sovereignty. First, the Navajo Nation’s continued struggle to establish their water rights in the context of a recent Supreme Court ruling exemplifies the general disregard the federal government exhibits when accounting for tribal water needs. Second, the Colorado River Indian Tribes (CRIT) Water Resiliency Act demonstrates how attempts by the federal government to solve these issues perpetuate inequities and undermine Indigenous value systems. As undergraduate students eager to identify new approaches and opportunities for hope in American environmental law, we believe that respecting Indigenous water sovereignty and decision- making can help to not only solve the specific challenges that we identify, but also to indicate a potential path toward a new Western water law framework.

Arizona v. Navajo Nation

The experience of the Navajo Nation provides a more detailed look into both the legal opportunities and challenges that tribal nations face as a result of their contested sovereignty. Diné water rights are proving insufficient to supply the sprawling land area and population of the Navajo Nation. Moreover, much of the water that flowed within the Navajo reservation boundary has either been contaminated or depleted by uranium mining and oil drilling. And, although the

Colorado River borders the Nation for 76 miles, the Nation only has rights to the Colorado’s tributaries and streams, many of which have dried up.

In 2003 the Navajo Nation, struggling to come to a settlement with states, sued the federal government. Their primary complaint was that the government failed to fulfill its trust obligations under the 1868 Treaty to find and secure the Nation’s water rights on the Colorado River. After a decade of failed settlement attempts and intervening rulings, the Supreme Court agreed to hear the case. On June 22, 2023, Arizona v. Navajo was decided in a 5-4 opinion, authored by Justice Kavanaugh, which ruled that, “The 1868 Treaty establishing the Navajo Reservation did not require the United States to take affirmative steps to secure water for the Tribe. The Court ruled that the 1868 Treaty lacked explicit language affirmatively obligating the U.S. to secure Diné water rights, and it suggested that the Navajo instead seek redress through the legislative and executive branches, which could amend or ratify a new declaration of their rights. However, as others note, including Justice Gorsuch in dissent, the other branches of government have not taken action in over half a century. This arduous battle for water demonstrates the federal government's longstanding struggle to adequately recognize and secure Indigenous interests.

Despite this Supreme Court ruling, a recent development may mean that the Diné won’t have to wait much longer. As of March 1, 2024, the Navajo Nation announced that it is nearing the end of a settlement with Arizona to secure the water rights it has been seeking for over 100 years. This huge accomplishment—attained by the Diné persistence in protecting their rights—is just one success story among other nations that are still struggling to establish concrete water rights. In any case, this settlement should be seen as an opportunity for other nations facing similar challenges.

Colorado River Indian Tribes (CRIT) Water Resiliency Act

The CRIT Water Resiliency Act, passed by Congress in 2023, further exemplifies current challenges in tribal water sovereignty. The Act allows CRIT, a federally recognized tribe consisting of four distinct Tribes; the Mohave, Chemehuevi, Hopi, and Navajo, to lease its Colorado River water allocation to off-reservation users. The Act has been described as a small victory for tribal sovereignty, but it also has several limitations. First, it does not expand water rights to all Indigenous nations in the Colorado River Basin (CRB). Other nations outside of CRIT are still unable to lease their water and are subsequently missing out on a potential revenue stream. Many have argued that Congress should implement uniform legislation authorizing all nations in the CRB to lease their water rights to off-reservation users in accordance with the terms outlined in the CRIT Water Resiliency Act. Furthermore, although the Act expands the rights of four Indigenous nations by allowing water leasing, even those nations cannot attain full water sovereignty due to a lack of water infrastructure in reservations.

In addition to the unequal nature of CRIT, the Water Resilience Act has also engendered various additional concerns. First, some object to marketing tribal water rights, even where legally authorized, as commodifying water undermines its religious and cultural significance. Second, other nations oppose leasing water to non-reservation users because they worry the water could be taken permanently, even with contractual safeguards in place. Third, objections to water leasing include economic considerations. While off-reservation leasing can provide immediate revenue, on-reservation uses can employ more tribal members and generate secondary economic activity. These concerns are especially relevant because water settlement acts typically impose 99 or 100-year limits on leases that could constrain exercise of tribal water rights for several generations. Underlying these and other concerns is a deep distrust of the United States government, rooted in a long history of deceit and failure to recognize tribal rights.

The CRIT Water Resiliency Act reflects numerous shortcomings in its current approach to tribal water rights issues: it excludes a majority of tribes in the CRB, perpetuates inequities faced by the tribes, undermines Indigenous value systems, and requires individual tribes to expend resources in order to secure similar protections. Nevertheless, it also suggests several opportunities to reimagine CRB governance and more holistically incorporate stakeholders. As just one example, Manuel Heart, the Chairman of the Ute Mountain Ute Tribe in southwest Colorado, has discussed appointing a tribal representative on the Upper Colorado River Commission as a way to include tribal voices. Other spaces must be created to address tribal needs that have frequently been overlooked and facilitate cooperation between the U.S. government and tribal governments.

Indigenous Sovereignty in its Own Right

Arizona v. Navajo and the CRIT Water Resiliency Act highlight fundamental tensions in reconciling tribal resource rights. As climate change continues to worsen drought conditions, tribal water rights issues will be exacerbated. It is thus imperative that Indigenous nations are meaningfully included and consulted in future discussions on water rights and management.

The value of Indigenous sovereignty exists in its own right. Navajo Nation lawyer Bidtah Nellie Becker imagines this as an “organic sovereignty”, which she describes as ways in which communities organize themselves and relate to each other. According to Becker, this type of sovereignty exists regardless of any external designation of sovereignty, whether that be from another sovereign nation or a federal authority. In practice, sovereignty functions at the individual level and so Becker argues that “one of the greatest challenges to Navajo sovereignty is ourselves...are the choices that individual Navajo people make.” With this in mind, Becker opens the door to reconceptualizing Indigenous sovereignty as a powerful force for change within the community. Moreover, supporting tribal sovereignty through legislation opens the door for new approaches to water law. Allowing tribes to exercise self-governance over their resources can strengthen relationships between tribal nations and the federal government.

In the same way, establishing Indigenous sovereignty over their rightful water claims will likely bolster the protection of natural resources, including the Colorado River system. Native stewards of the land have managed and protected resources for millennia, generating place-based insights and leveraging Traditional Ecological Knowledge to promote balance and resilience. It is currently estimated that Indigenous Peoples, although representing 5% of the Earth’s population, protect 80% of its biodiversity. Therefore, as water scarcity in the Western U.S. becomes an increasingly pertinent issue, there are many reasons to seek more meaningful legal recognition of Indigenous sovereignty and value systems in the Colorado River Basin.

SOURCES

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Flowing Towards Biocentric Water Management in the West

Fri, 20 Sep 2024 03:56:49 GMT

Western Water Management: Anthropocentric Foundations, Expanded Future Possibilities

American water law and policy has a deeply anthropocentric foundation, centering human use and benefit in its conception of water management and water rights litigation. The system’s contours reflect ideological frameworks that prioritize human considerations, as framed by economic-driven water markets, public trust doctrines, and private water rights ownership and groundwater extraction. These lack the necessary frameworks to adapt to climate stressors, create sweeping, ecosystem-scale protections, and holistically address ecological concerns. As climate change further threatens water resources in the Western United States and the underlying assumptions under which those rights and allocations were originally granted, our water system will inevitably struggle to maintain "secure" water rights and allocations. To address these complex, multi-scale issues, Western U.S. water law must shift the needle away from singularly anthropocentric frameworks towards those which accommodate ecological and biocentric considerations.

As Colorado undergraduate students, we are uniquely positioned to both bear the effects of these unfolding challenges and to shape the next generation of Western water and environmental law. Mindful of these tensions, we utilize a ‘Goldilocks’ framework to explore what a pragmatic, yet reimagined, approach to contemporary water management might look like. Drawing upon three existing examples, we illustrate and advocate an approach that more effectively balances anthropocentric and biocentric considerations. We first explore the biocentric end of a spectrum of potential legal responses, highlighting efforts to enshrine rights of nature provisions by securing legal personhood for the Colorado River ecosystem. This approach, while deeply biocentric, illustrates how efforts to bring about abrupt shifts can actually inhibit courts from making actionable progress within our current system. Second, we explore the anthropocentric end of the spectrum, highlighting how intergenerational considerations are being introduced in Western groundwater management. This conceptualization has proven successful in progressing a sustainable future for groundwater availability, though this approach has proven insufficient, as currently framed, to prospectively protect non-human water interests. Finally, we highlight Colorado’s instream flow (“ISF”) program as an example of an approach that strikes some balance on this spectrum. By incorporating biocentric goals within broader anthropocentric frameworks, we argue that this approach might hold the key to structuring future water management approaches that are just right.

Rights of Nature and Litigating for the Legal Personhood of River Basins: “Too Hot!”

Justice Douglas's renowned dissenting opinion in the 1972 Supreme Court case Sierra Club v. Morton is considered the closest the federal judiciary has come to acknowledging the Rights of Nature in the United States. In contemporary times, the idea of granting rights to natural resources is gaining momentum across the globe. Following suit, the 2017 case Colorado River Ecosystem v. The State of Colorado sought recognition of such non-human legal personhood at an ecosystem scale in U.S. federal courts. The plaintiffs referenced Justice Douglas’s Sierra Club v. Morton dissenting opinion in their original complaint, making the argument for a shift in our legal system to allow standing for natural objects. Citizens of Colorado and Utah and the conservation organization Deep Green Resistance petitioned the United States District Court in Denver to recognize and declare the Colorado River Ecosystem as a "person" with the ability to represent its interests in court. The plaintiffs supported their argument by drawing parallels with corporations, which are recognized as legal entities despite being non-human, pointing to how the current legal system perpetuates anthropocentric forms of environmental advocacy. After multiple filings by both parties, the case was dismissed with prejudice. Therefore, while the suit was deemed a good faith attempt to introduce the rights of nature doctrine in the United States, its dismissal with prejudice presents a potential barrier to future rights of nature litigation and efforts to establish ecosystem-scale protections for the Colorado River.

Ultimately, the Colorado River Ecosystem case presents an unfortunate truth: racing too far towards the biocentric end of the spectrum can prevent actionable progress. Since our dominant, anthropocentric legal system appears unwilling to fundamentally change established environmental and water law structures, a middle approach could help allow the courts to shift one step at a time.

Intergenerational Equity and Groundwater: “Too Cold!”

Intergenerational considerations and the international environmental law principle of intergenerational equity have increasingly shaped environmental litigation in the United States and abroad. The concept has been used to require sustainable stewardship of natural resources, particularly since the 1994 Philippine Supreme Court opinion, Minors Oposa v. Factoran . Increasingly, notions of intergenerational equity have informed global understandings of water law and justice. For instance, the Brasilia Declaration of Judges on Water Justice begins by underscoring environmental stewardship and intergenerational equity as key tenets of water justice. The principle has also been used to shape legal doctrine regarding water and, increasingly, groundwater. For instance, Australian courts have enjoined mine expansions based on anticipated effects on groundwater for future generations. Likewise, in the U.S., scholars and courts alike have demonstrated progress in considering whether groundwater may properly be viewed as a public trust resource, to be stewarded for future generations.

These shifts towards including intergenerational equity in water law are pushing toward sustainable groundwater management practices, yet the framing still reflects anthropocentric values. The Australian case halted the expansion of detrimental development and the push in California has set the U.S. on a path toward the consideration of future generations, but both did so in the name of protecting future human use and rights to extract groundwater. Therefore, the protection serves only to preserve continued exploitation of water as a resource, rather than to protect the water itself.

Instream Flow Rights: “Just Right...?”

By solely centering either anthropogenic or biocentric considerations, many of our current approaches to water management fall short. It is necessary, then, to find an avenue forward that can balance biocentric environmental goals and anthropocentric human considerations. One potential illustration of such an approach is provided by Colorado’s Instream Flows (“ISF”) program.

While not a new system of rights by any means, the ISF program maintains biocentric and biocentric goals while operating within the broader framework of Colorado’s water property rights system. The program, established in 1973, allows ISF water rights to be held by the Colorado Water Conservation Board (“CWCB”). While initially controversial, the ISF program has had the necessary time to seep into public, legal, and judicial acceptance, and its unique blend of ideals has allowed the program to flourish within the state. Although the CWCB is the only party that can hold ISF water rights, the scope of the program has been extensive within the state. ISF rights have been able to protect more than 9,700 miles of stream in Colorado, signaling the program's efficacy in advancing its environmental mission. However, this protection comes within the broader economic framework of Colorado’s water market, wherein economic power lies heavily in favor of anthropocentric-minded agents seeking to secure water rights for human consumptive uses and/or economic goals. In this way, Colorado’s ISF program functions to introduce biocentric water management considerations, while successfully operating within the greater anthropocentric economic and legal systems.

This isn’t to say that the ISF program is beyond analysis and critique. By nesting within the prior appropriation system, a majority of ISF rights are more often appropriated rather than acquired, therefore holding junior status. However, the acquisition of these rights allows communities, cities, and even states to actively defend instream flows, hold back future diversions, and influence existing management and diversion practices via enforcement and management of the existing water rights system. While many facets of the program are steeped in anthropocentrism, Colorado’s ISF program may hold a roadmap to necessary balance by incorporating biocentrism in its fundamental mission of environmental protection.

A Biocentric Future within Current Means

In many ways, Colorado’s system of ISF rights can serve as an example of balance for other approaches to water management. Changing broader economic and legal systems may be both foolhardy and ill-advised, but Colorado’s ISF program shows that it is possible to work within these systems while supporting environmental protection and local engagement with environmental issues. The power of ISF rights demonstrates how environmental initiatives can inform better water management practices when neither biocentric nor economic goals take explicit precedence over the other.

While recognizing shortcomings in their scope, both anthropocentric and biocentric approaches are vital to the conversation of finding more sustainable water practices and legal strategies. Recognizing rights of nature in the court systems can and will be an extremely effective tool—when the timing is “right” and public perception acknowledges that humans and nature are inextricably linked. When those elements are in place, a rights of nature approach in U.S. courts could then be seen as a successful, balanced legal approach. Similarly, the language of intergenerational equity often revolves around holding resources in trust for future beneficiaries, which, if more broadly defined, could in turn support consideration of more biocentric interests. Holding the interest of both humans and nature in trust may allow for intergenerational equity approaches to account for nature without shifting farther than the courts are willing to accept. For the Western United States legal system to truly adapt to increased water demand and an increasingly variable climate, it must ultimately undergo an ideological shift. American water law must evolve past its current anthropocentrism to include ecological and biocentric goals and frameworks. As demonstrated by Colorado’s ISF program, this evolution can occur, yet the most successful strategies will work themselves into existing frameworks that courts may find acceptable, pushing the envelope from within established systems.

SOURCES

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https://cwcb.colorado.gov/focus-areas/ecosystem-health/instream-flow-program#:~:text=Since%201973%2C%20CWCB%20has%20appropriated,rights%20on%20480%20natural%20lakes .

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SEC Climate Change Disclosure Rule

Sat, 13 Apr 2024 01:12:42 GMT

Water Implications and Likely Legal Challenges

The world is seeing the impacts of climate change. The Northern Hemisphere just had its hottest summer on record, and the Southern Hemisphere just had its warmest winter on record. In the midst of climate disasters, the Securities and Exchange Commission (SEC) finalized a new rule to standardize public company climate-related disclosures for investors. The SEC is an independent government agency that Congress tasked with protecting investors, facilitating capital formation, enforcing federal securities laws, and regulating securities markets.

The SEC proposed this rule against a backdrop of renewed discussion regarding ESG investing. ESG refers to environmental, social, and governance standards used by investors to select socially responsible investments. Currently, the Biden Administration faces legal challenges regarding a Labor Department rule allowing retirement plans to consider ESG issues when making investment decisions. Proponents for ESG investing argue that it is a positive way to bring about social change while increasing company profits. Opponents argue that ESG issues are better handled by government agencies, not corporate America, and that these “sustainable” companies are simply greenwashing–overstating their sustainability practices to attract investors.

The SEC requires public companies to provide investors with periodic reports to ensure investors can review a public company’s financial statements, possible risks, and executive compensation packages. This information allows investors to analyze whether they should continue to invest in a specific company. The SEC requires all public companies to make disclosures so that investors can compare information across industries or companies. For example, if an investor is interested in purchasing shares of oil and gas companies, periodic reports allow investors to compare companies’ financial statements within the oil and gas industry. Investors can compare risks, costs, revenue, and profit among several companies because the SEC requires standardized disclosures according to generally accepted accounting principles (GAAP). The more information an investor has, the better they can analyze their investments, which in turn leads to a predictable and stable financial system. Investors can find information regarding company filings on the SEC’s EDGAR search platform.

The Proposed Climate Change Rule

The SEC originally proposed a more robust climate change rule in 2022. The proposed rule would have required public companies to make the following disclosures to investors:

The registrant’s governance of climate-related risks and relevant risk management processes;
How any climate-related risks identified by the registrant have had or are likely to have a material impact on its business and consolidated financial statements, which may manifest over the short, medium, or long-term;
How any identified climate-related risks have affected or are likely to affect the registrant’s strategy, business model, and outlook;
The impact of climate-related events (severe weather events and other natural conditions) and transition activities on the line items of a registrant’s consolidated financial statements, as well as on the financial estimates and assumptions used in the financial statements;
Disclosure about direct greenhouse gas (GHG) emissions (Scope 1) and indirect emissions from purchased electricity or other forms of energy (Scope 2); and
Disclosure of GHG emissions from upstream and downstream activities in its value chain (Scope 3), if material or if the registrant has set a GHG emissions target or goal that includes Scope 3 emissions.

The SEC’s goal was to ensure that investors had information pertaining to all climate-related risks necessary to make informed investment decisions. Specifically, these disclosures will help investors select companies that mitigate climate risk. This rule would have standardized climate disclosure, making it very easy for investors to compare information across companies.

The proposed rule was criticized by corporate America . Many companies argued that these requirements were too burdensome and costly to implement. Specifically, companies argued that it would be very difficult to calculate the indirect greenhouse gas emissions (referred to as Scope 3 emissions ) from upstream and downstream activities, such as shipping. However, some companies supported this rule. Apple was the first major company to support the proposed mandatory climate change disclosure rule.

How Does This Rule Address Water Risk?

Climate-related risk includes water risks. Certain companies may be more susceptible to drought, rising ocean temperatures, and rising sea levels, for example. The SEC’s disclosure rule would require companies to disclose plans to address their water-related risks.

When preparing reports, companies may look to the CEO Water Mandate , a special initiative of the UN Secretary-General and UN Global Compact, aimed to address “development, implementation, and disclosure of corporate water sustainability policies and practices.” The Mandate platform provides guidelines for business reporting on water-related issues. According to the Mandate, industries expected to experience high exposure to water-related risks are agriculture, beverage producers, biomass power production, chemicals, clothing and apparel, electric power production, food producers, food retailers, forestry and paper, freshwater fishing and aquacultures, hydropower production, mining, oil and gas, pharmaceuticals and biotech, technology hardware and equipment, and water utilities and services. Broadly, companies will need to evaluate which water-related risks will apply and the implications of those risks.

The Final Climate Change Rule

The SEC released the final climate change rule in March 2024 after reviewing 24,000 comment letters. Below are the new requirements for climate-change disclosure for public companies:

Climate-related risks that have had or are reasonably likely to have a material impact on the registrant’s business strategy, results of operations, or financial condition;
The actual and potential material impacts of any identified climate-related risks on the registrant’s strategy, business model, and outlook;
If, as part of its strategy, a registrant has undertaken activities to mitigate or adapt to a material climate-related risk, a quantitative and qualitative description of material expenditures incurred and material impacts on financial estimates and assumptions that directly result from such mitigation or adaptation activities;
Specified disclosures regarding a registrant’s activities, if any, to mitigate or adapt to a material climate-related risk including the use, if any, of transition plans, scenario analysis, or internal carbon prices;
Any oversight by the board of directors of climate-related risks and any role by management in assessing and managing the registrant’s material climate-related risks;
Any processes the registrant has for identifying, assessing, and managing material climate-related risks and, if the registrant is managing those risks, whether and how any such processes are integrated into the registrant’s overall risk management system or processes;
Information about a registrant’s climate-related targets or goals, if any, that have materially affected or are reasonably likely to materially affect the registrant’s business, results of operations, or financial condition. Disclosures would include material expenditures and material impacts on financial estimates and assumptions as a direct result of the target or goal, or actions taken to make progress toward meeting such target or goal;
For large accelerated filers (LAFs) and accelerated filers (AFs) that are not otherwise exempted, information about material Scope 1 emissions and/or Scope 2 emissions;
For those required to disclose Scope 1 and/or Scope 2 emissions, an assurance report at the limited assurance level, which, for an LAF, following an additional transition period, will be at the reasonable assurance level;
The capitalized costs, expenditures expensed, charges, and losses incurred as a result of severe weather events and other natural conditions, such as hurricanes, tornadoes, flooding, drought, wildfires, extreme temperatures, and sea level rise, subject to applicable one percent and de minimis disclosure thresholds, disclosed in a note to the financial statements;
The capitalized costs, expenditures expensed, and losses related to carbon offsets and renewable energy credits or certificates (RECs) if used as a material component of a registrant’s plans to achieve its disclosed climate-related targets or goals, disclosed in a note to the financial statements; and
If the estimates and assumptions a registrant uses to produce the financial statements were materially impacted by risks and uncertainties associated with severe weather events and other natural conditions or any disclosed climate-related targets or transition plans, a qualitative description of how the development of such estimates and assumptions was impacted, disclosed in a note to the financial statements.

Changes between the Proposed and Final Rule?

The most notable changes between the proposed and final rules are (1) companies only need to disclose climate-related risks which are material and (2) companies do not need to disclose Scope 3 emissions.

The new rule is a step in the right direction for investors and the environment, but many environmentalists and investors will argue that it does not go far enough. It is possible that requiring public companies to disclose their material climate-related risks and direct greenhouse gas emissions will incentivize companies to implement sustainable practices. While the SEC does not typically prohibit conduct, the agency often relies on public disclosure requirements as a method to change company behavior. Investors may not choose to purchase shares in a company if the company discloses that it has a comparatively larger carbon footprint than other companies in the industry. However, how will companies determine which climate risks are material? Materiality is typically defined as something that impacts an investor’s decision to buy, sell, or maintain shares. However, material risks will vary by company and industry, making this data less comparable for investors.

Additionally, environmentalists will likely critic the SEC’s failure to require disclosure of Scope 3 emissions. Emissions stemming from supply chains were found to be 11.4 times higher than emissions from operational business—meaning that failure to disclose Scope 3 emissions leaves the majority of carbon emissions undisclosed by public companies. The burden of Scope 3 emissions does not fall on large companies, but on suppliers and customers.

Expected Legal Challenges

The SEC’s new rule will likely be challenged on several fronts. Courts may overturn certain disclosure requirements if they are too burdensome. Specifically, courts may decide that the SEC made an arbitrary and capricious decision under the Administrative Procedure Act if it failed to make sufficiently detailed findings necessary to protect investors without placing an undue burden on companies. However, given that the SEC reviewed 24,000 comment letters and subsequently dropped the requirement for companies to disclose Scope 3 emissions and only require disclosure of material climate-related, the rule is unlikely to be found arbitrary and capricious.

Opponents to the rule may also argue that it exceeds the SEC’s statutory rulemaking authority. Jacqueline Vallette and Kathryne Gray outlined several likely legal challenges in their article . Specifically, these authors state that the SEC’s enabling statute could be interpreted narrowly to only protect investors from “inflated prices and fraud.” Providing investors information regarding environmental initiatives may fall outside of the SEC’s duties of enforcing and regulating the U.S. securities market. The SEC has two enabling statutes, the Securities Act of 1933 (1933 Act) and the Securities Exchange Act of 1934 (1934 Act). These statutes require the SEC to obtain company disclosures to protect the public interest and investors. Those opposed to the rule will argue that Congress only intended the SEC to require companies to disclose material financial information when protecting investors. However, the SEC will argue that climate related risks have a material impact on financial information and investors’ subsequent decisions. Investors likely want to know if a public company is spending money to mitigate climate events because it adds security to their investment.

The SEC’s rule may also be challenged under the major questions doctrine . Specifically, opponents will argue that Congress is better suited to regulate climate change disclosures. The final rule requires disclosures from public companies regarding their material climate-related risks. These disclosures may be burdensome and expensive for public companies, which could impact the economy. Further, the issue of addressing climate change itself may be a major question. However, the SEC will argue that the rule only mandates disclosures and findings, not action. The SEC has historically required public companies to comply with periodic reporting requirements. The SEC will argue that disclosures are not a major question because it has always required public companies to disclose information to investors, and climate-related risks are material to investor decision-making.

In line with the major questions doctrine, an agency can only use delegated legislative authority if Congress has provided that agency an intelligible principle to guide legislative rulemaking. Arguments regarding improper delegation will focus on the level of instruction Congress gave to the SEC when requiring disclosures to protect investors. This rule may be an impermissible delegation of legislative power depending on the consequences of nondisclosure of material climate-related risks. If non-disclosure implicates the fraud provisions of the 1933 and 1934 Acts, then heavy civil penalties will attach to noncomplying companies and their boards of directors. A court would ask whether Congress provided the SEC with an intelligible principle regarding public companies’ necessary disclosures. The Supreme Court has rarely ruled against administrative agencies when looking for an intelligible principle. However, given the current makeup of the court, this judicial approach could change.

Finally, the rule may be challenged under the First Amendment. Companies opposing the rule may argue that the rule compels disparaging speech related to climate change. However, the SEC has historically required different forms of disclosure, which have not yet been challenged as a violation of the First Amendment. If the Supreme Court were to hold that disclosure of negative information about a company is subject to the First Amendment, several other SEC disclosure requirements may be at risk in the future.

As of now, at least nine lawsuits have been filed challenging the new rule by both Republican-led states and business lobby groups. Environmental groups such as the Sierra Club and Natural Resources Defense Council are also challenging the rule, arguing that the rule does not go far enough to protect investors. The less burdensome final rule is more likely to succeed against its upcoming legal challenges. The Supreme Court likely will need to weigh in on the SEC’s new climate change disclosure requirements.

SOURCES

Benjamin Mullin, U.S. Judge Denies States’ Bid to Block Biden Rule on E.S.G. , N.Y. Times (Sept. 21, 2023), https://www.nytimes.com/2023/09/21/business/texas-judge-esg-biden.html .
Clark Mindock, Challenges to SEC's Climate Rules Sent to Conservative-leaning US Appeals Court , Reuters (Mar. 22, 2024), https://www.reuters.com/legal/challenges-secs-climate-rules-sent-conservative-leaning-us-appeals-court-2024-03-21/ .
David Colvin et. al., Get Ready for SEC Final Rule on Climate Disclosures , J.D. Supra (Oct. 6, 2023), https://www.jdsupra.com/legalnews/get-ready-for-sec-final-rule-on-climate-7695075/ .
Declan Hartly, SEC’s Gensler Weighs Scaling Back Climate Rule as Lawsuits Loom , Politico (Feb. 4, 2023), https://www.politico.com/news/2023/02/04/sec-climate-rule-scale-back-00081181 .
Defining What to Report , The CEO Water Mandate, https://ceowatermandate.org/disclosure/prepare/define/ (last visited Oct. 10, 2023).
E. Napoletano, Environmental, Social And Governance: What Is ESG Investing? Forbes (June 22, 2023), https://www.forbes.com/advisor/investing/esg-investing/ .
Hazel Bradford, Apple Backs SEC Mandate on Climate Disclosure , Pensions and Investments (Apr. 13, 2021), https://www.pionline.com/esg/apple-backs-sec-mandate-climate-disclosure .
Jacqueline M. Vallette and Kathryne M. Gray, SEC’s Climate Risk Disclosure Proposal Likely to Face Legal Challenges , Harvard L. Sch. Forum on Corp. Governance (May 10, 2022), https://corpgov.law.harvard.edu/2022/05/10/secs-climate-risk-disclosure-proposal-likely-to-face-legal-challenges/#:~:text=There%20are%20at%20least%20four,major%20questions%20of%20climate%20change .
Jean Eaglesham and Paul Kiernan, Climate Disclosure Poses Thorny Questions for SEC as Rules Weighed , The Wall Street J. (Feb. 18, 2022), https://www.wsj.com/articles/climate-disclosure-poses-thorny-questions-for-sec-as-rules-weighed-11645180200 .
Major Questions Doctrine and Canons of Statutory Construction , Cornell L. Sch., https://www.law.cornell.edu/constitution-conan/article-1/section-1/major-questions-doctrine-and-canons-of-statutory-construction (last visited Oct. 10, 2023).
Press Release, U.S. Sec. and Exch. Comm’n, SEC Proposes Rules to Enhance and Standardize Climate-Related Disclosures for Investors (Mar. 21, 2022), https://www.sec.gov/news/press-release/2022-46 .
Press Release, U.S. Sec. and Exch. Comm’n, SEC Adopts Rules to Enhance and Standardize Climate-Related Disclosures for Investors (Mar. 6, 2024), https://www.sec.gov/news/press-release/2024-31 .
Corporate Water Disclosure Guidelines (2014), The CEO Water Mandate, https://ceowatermandate.org/disclosure/about/ (last visited Oct. 10, 2023).
The World Just Sweltered through its Hottest August on Record , N.O.A.A. (Sept. 14, 2023), https://www.noaa.gov/news/world-just-sweltered-through-its-hottest-august-on-record#:~:text=June%2DAugust%202023%20was%20also,a%20degree%20C)%20above%20average .
U.S. Securities and Exchange Commission , https://www.sec.gov/ (last visited Oct. 10, 2023).

Held v. Montana

Fri, 08 Mar 2024 20:03:37 GMT

A (Limited) Win for the Environment and Those of Us Living in It

In March 2020, sixteen Montana youth (the “Youth Plaintiffs”) ranging from two to eighteen years old filed a complaint alleging the State’s energy system, powered by fossil fuel, caused and contributed to climate change, violating their constitutional right to a healthy environment. Over three and a half years later, Kathy Seely, District Court Judge for the First Judicial District Court of Lewis and Clark County, found in favor of the Youth Plaintiffs , holding that “[Youth] Plaintiffs have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.” This ruling is no doubt a victory for the Youth Plaintiffs. However, Judge Seely’s use of the phrase “fundamental constitutional right” is a reminder of the necessary condition precedent to bring such a suit in the first place: a constitutional provision entitling citizens to a healthy environment.

Judge Seely’s order focused on the impact of the Montana Environmental Policy Act (“the MEPA Limitation”). The MEPA Limitation prohibited Montana and any of its agents from considering greenhouse gas (GHG) emission impacts or climate change in their environmental reviews, as well as actions the State took, in the aggregate, implementing or perpetuating a state energy system based on fossil-fuels. The MEPA Limitation also prohibited the consideration of environmental impacts beyond Montana’s immediate borders, such as the impact of certain State actions on the overall climate of the United States and beyond.

However, as the testimony of multiple experts during the trial highlighted, GHG emissions not only negatively impact resources such as water and air quality within Montana, but contribute to the overall warming of the planet which, in turn, negatively impacts the environment of Montana itself. If Montana regulators could not consider GHG emission impacts or climate change in their environmental reviews, it was impossible for Montana to know the true environmental impact of approving each drilling permit, or any other permit dealing with fossil fuels.

Expert testimony also highlighted that the MEPA Limitation made it nearly impossible to fully explore renewable energy alternatives, as it forces Montana and its agents to ignore not only the impacts of GHG emissions and climate change, but the presence of any available alternative. Expert witnesses pointed out that a roadmap for a transition from Montana’s fossil-fuel-based system to one based on renewable energy already exists, a project with the added bonus of creating jobs and saving climate change associated costs. However, as long as the MEPA Limitation remains in place, a truly comprehensive review of energy alternatives available in Montana is blocked.

Judge Seely ultimately found the MEPA Limitation unconstitutional, and enjoined its enaction, because the entities responsible for issuing permits and monitoring environmental pollution violated the Youth Plaintiffs constitutional right to a clean and healthy environment.

The Held ruling is limited in scope, as it is based on Montana’s state constitution. Montana’s state constitution not only grants “all persons…the right to a clean and healthful environment,” but also requires “[t]he state and each person…[to] maintain and improve a clean and healthful environment in Montana for present and future generations.” These constitutional provisions are not universal across the United States. Only a handful of other states, including Illinois , Pennsylvania , New York , Massachusetts , and Hawai’i , have enacted similar constitutional provisions. Citizens in other states, such as Colorado, cannot allege a state constitutional violation of their right to a clean and healthy environment because no such provision exists within their state constitution. In other words, the Held ruling is not a “turning of the tides” or huge win for the environmental rights of all citizens across the nation because it only applies to the few states with environmental protections enshrined in their constitutions.

The true value of the Held ruling, in addition to the protections provided to the Youth Plaintiffs and their fellow Montanans, is its inspiration for citizens in other states with a constitutionally protected right to a clean environment to exercise that right. New Yorkers have already filed at least seven lawsuits , and a similar lawsuit is set for trial in Hawai’i. Environmental litigation, especially cases involving climate change, often result in mixed or negative rulings . However, Held provides a roadmap for citizens and advocacy groups in states with a constitutionally-protected right to a healthy environment, especially in cases where GHG emissions and limitations on the state’s environmental review process are in question.

The Held ruling may spur more litigation, and may also draw attention to these constitutional provisions, which citizens have generally been unaware of, inspiring states lacking such provisions to push for constitutional amendments granting their citizens these same rights. At least fifteen states are already considering adding similar provisions to their own constitutions, and the wording considered especially persuasive by Judge Seely may appear more frequently in proposed provisions, whereas wording deemed inadequate or unsupportive may be altered to better fit the goals of citizens who desire a healthy environment, likely strengthening these provisions in the event of future cases similar to Held . Judge Seely’s ruling will not bind or otherwise dictate the wording of provisions in other states, but it may be influential. Other citizens, advocacy groups, and states now have the benefit of learning where to look for potential holes in protection and what provisions could benefit from extra support or different wording.

The next step for Held is an appeal to the Montana state Supreme Court . Emily Flower, a spokesperson for the Montana Attorney General, called the ruling “absurd” and stated that since the theory used in Held –that citizens have a right to a clean and safe environment–has been thrown out in federal court and other state courts, it should have been thrown out in this case as well. However, Flower did not acknowledge that the U.S. Constitution and most state constitutions lack the environmental protections enshrined within Montana’s state constitution. The timing of the appeal is currently unknown but given the time it took for the Held ruling to be announced (over three and a half years), the final outcome of Held will likely remain unknown for quite some time.

The full impact of the Held decision is yet to be seen and will depend in part on the Montana Supreme Court’s decision. Although the ruling may be narrow in its applicability and protection, especially for those outside the state of Montana, it could lead other states to add similar provisions to their constitutions. The Held decision may also inspire citizens in states whose constitutions already protect the right to a healthy environment to exercise their constitutional rights. Pollution and climate change do not recognize state borders, and reduction of GHG emissions in Montana positively impacts the rest of the United States.

SOURCES

Haw. Const. art. 11, § 9.

Held v. State , No. CDV-2020-307 (D. Mont. Aug. 14, 2023) (order granting permanent injunctions).

Ill. Const. art. 9.

Jennifer Hijazi, Montana Youth Win Historic Case on Harm From Climate Change (3) , Bloomberg Law (last updated Aug. 14, 2023, 4:23 PM), https://news.bloomberglaw.com/environment-and-energy/montana-youth-climate-plaintiffs-get-historic-win-in-state-case.

Kate Selig, Judge Rules in Favor of Montana Youths in Landmark Climate Decision , The Washington Post (last updated Aug. 14, 2023, 6:13 PM), https://www.washingtonpost.com/climate-environment/2023/08/14/youths-win-montana-climate-trial/.

Mass. Const. art 97.

Mont. Const. art. 2, § 3.

Mont. Const. art. 9, § 1.

Nathan Rott, Judge Rules in Favor of Young Activists in Montana Climate Change Trial , NPR (Aug. 14, 2023, 6:21 PM), https://www.npr.org/2023/08/14/1193782347/judge-rules-in-favor-of-young-activists-in-montana-climate-change-trial.

N.Y. Const. art. 1, § 19.

Pa. Const. art. 1, § 27.

Samantha Maldonado, What the Landmark Climate Ruling in Montana Means for New York, The City: Reporting to New Yorkers (Aug. 15, 7:04 PM), https://www.thecity.nyc/2023/08/15/what-montana-climate-ruling-means-for-new-york/.

Recent Water Legislation

Fri, 01 Mar 2024 08:50:43 GMT

Colorado Efforts to Protect Water Resources

Water shortages in Colorado have prompted negotiations between the Colorado River Basin states regarding how best to cut water use. Recent estimates suggest that California, Arizona, Nevada, New Mexico, Colorado, Utah, and Wyoming must cut their current allocation by thirty percent. [i] Although snowpack in Colorado is currently one hundred and forty percent of average , more is needed to curb the water crisis in the West. [ii] To aid in negotiations, four senators from Colorado, Wyoming, and Nevada are touring the nation’s depleted reservoirs and infrastructure. [iii] Water conservation in the West is crucial to address the water crisis. A recent poll suggests that seventy to ninety percent of Coloradans support conservation goals such as “healthy forests, protecting wildlife habitats and migration routes and preventing light pollution.” [iv] Eighty-seven percent of respondents in Colorado see water shortages as a problem, and seventy-seven percent of respondents believe in urgent funding for water conservation projects in Colorado. [v] To address these concerns, Governor Polis signed several bills in 2022: The Construction Fund Projects Bill; the Wildfire Prevention Watershed Restoration Funding Bill; the Turf Replacement Program Bill; the Groundwater Compact Compliance Bill; and the Species Conservation Trust Fund. [vi]

Construction Fund Projects Bill

The Construction Fund Projects Bill allocates resources to fund several projects aimed at water conservation within Colorado. [vii] Several of these projects address water monitoring systems in Colorado. [viii] Specifically, the Bill allocates funding towards satellite monitoring systems, floodplain map modernization, water forecasting partnership project, and modeling and data analyses for the upper Colorado river commission's interstate planning and negotiation effort. [ix] Monitoring and forecasting water in Colorado is crucial to water conservation efforts so that policymakers can accurately predict the cuts necessary to sustain the population and environment.

This Bill also allocates thirteen million dollars to Breckenridge, Colorado to rehabilitate the Goose Pasture Tarn Dam . [x] This project is expected to cost twenty million dollars, funded by both Breckenridge and the Federal Emergency Management Agency. [xi] The rehabilitation project will replace current spillways with a single spillway to improve safety around the dam. [xii] The U.S. Army Corps of Engineers classified the dam as a high hazard based on the consequences should the dam fail, presumably relating to the potential flood risks posed to local residents. [xiii] Safer water infrastructure will prevent future water waste. Ensuring that the Goose Pasture Tarn Dam will not fail furthers conservation efforts by reducing the possibility of waste.

Wildfire Prevention Watershed Restoration Funding Bill

The Wildfire Prevention Watershed Restoration Funding Bill allocates funds to several projects aimed at the restoration of watersheds and mitigation of wildfire risks. [xiv] Specifically, the Bill allocates three million dollars to reduce wildfire risks by promoting wildfire resilience. [xv] The Bill also allocates ten million dollars for watershed restoration and flood mitigation grants. [xvi] These efforts will benefit Coloradans by mitigating the risk that wildfires pose to water resources, homes, health, and the environment.

In recent years, the West has experienced serious issues regarding smoke and wildfires. For example, many Coloradans remember the destruction of the Marshall Fire in December 2021, which destroyed as many as one thousand homes and businesses in Boulder County. [xvii] Climate change will inevitability expose the West to more frequent and devastating wildfires. Wildfires also implicate water conservation efforts in Colorado. Researchers at CSU have found that burned areas in the mountains hold less water in snowpack than most areas. [xviii] Wildfires themselves compromise water quality for years after being extinguished. [xix] In addition, flooding and erosion are common on burned watersheds, which can have negative impacts on the water supply. [xx]

Turf Replacement Program Bill

The Turf Replacement Program Bill requires the Colorado Water Conservation Board (“CWCB”) to develop an incentive program for the “voluntary replacement of irrigated turf with water-wise landscaping. [xxi] This would mean incentivizing the use of plants and grasses with low water needs. [xxii] Coloradans are already experiencing water restrictions targeted towards landscaping in the summer months. Many cities in Colorado have taken steps of their own to reduce residential water use. In Denver , homeowners are only allowed to water their lawns in the morning and evenings and no more than three times a week. [xxiii] The Turf Replacement Program Bill builds upon another bill passed in 2021, which prohibited homeowner association restrictions on “xeriscape, nonvegetative turf grass, and renewable energy-generation devices.” [xxiv] Homes within common interest communities often use dramatically more water than those not within common interest communities – nearly ten thousand gallons more on average. [xxv]

Xeriscaping is an alternative for businesses and homeowners to reduce water consumption. Xeriscaping means “dry-scaping” in Greek. [xxvi] As an alternative to grass lawns, Xeriscaping encourages the use of plants that need little water. Watering a grass lawn can make up as much as 30% of a household’s water consumption. [xxvii] Xeriscaping can significantly cut a household’s water use. As city water restrictions become stricter, more Coloradans will likely implement xeriscaped lawns. The CWCB should provide large rebates and tax benefits to those who use water-wise landscaping. Administering an incentive program will likely be much easier than enforcing city-level water restrictions.

In Pueblo , the Water Department is offering residents five hundred dollars to implement a xeriscaped lawn. [xxviii] Aurora Water also recently launched a rebate program, offering four thousand dollars to homeowners who replace five hundred feet of grass in their front lawn. [xxix] The Turf Replacement Program will continue to build on city programs. [xxx] The Aurora plan should serve as an example to other municipalities. Showing residents that xeriscaping can be affordable and beautiful will go a long way to reduce household water consumption.

Why don’t more people remove their lawns and implement xeriscaping given the water savings associated with this type of landscaping? The practice of planting of lawns in America dates back to the colonial period, and lawns have often been associated with wealth. [xxxi] Grass lawns were historically difficult to maintain and required homeowners to devote time, spend money, and hire workers to assist with their lawns. [xxxii] This theme continues today – a green lawn is associated with success. [xxxiii] This sociological phenomenon will present a challenge to persuading more people in the West to switch to xeriscape landscaping. Strong financial incentives and rebate programs are necessary to get homeowners and businesses interested in eliminating the traditional grass lawn.

Groundwater Compact Compliance Bill

The Groundwater Compact Compliance Bill aims to “finance groundwater use reduction and sustainability efforts.” [xxxiv] Specifically, this bill will allow the state to buy and retire irrigation wells throughout Colorado. [xxxv] The Rio Grande Water Conservation District agreed to pay three thousand dollars per acre-foot to retire groundwater wells. [xxxvi] Agriculture is the largest use of Colorado groundwater. [xxxvii] Sixty million dollars have been set aside from the state’s budget to buy wells in the Rio Grande River Basin and the Republican River Basin. [xxxviii] The aquifers in these basins are particularly struggling. Water use in these areas is limiting Colorado’s ability to comply with the Colorado River Compact. [xxxix] Additionally the aquifers are drought-stressed and need to recover. [xl]

Species Conservation Trust Fund

The Species Conservation Trust Fund was initially created in 1998. [xli] The Trust funds studies and programs to help threatened, endangered, and candidate species recover. [xlii] In 2022, six million dollars were allocated towards Native Terrestrial Wildlife Conservation, Native Aquatic Wildlife Conservation, Platte River Recovery Implementation Program, Upper Colorado River Endangered Species Recovery Program & San Juan River Basin Recovery Implementation Program, Ruedi Reservoir releases, and Selenium management. [xliii]

Protecting biodiversity and water conservation go hand-in-hand. In Colorado , while wetlands comprise only three percent of the state, they support over forty percent of all vascular plant species, including 100 species of rare and vulnerable plants. [xliv] Additionally, eighty percent of all Colorado wildlife is supported by the wetlands at some point in its lifespan. [xlv] Colorado wetlands host the most at-risk species in comparison to all other habitats. [xlvi] Water conservation and protection of wetlands are critical to preserving biodiversity in Colorado. The state of Colorado has created its own list of threatened and endangered species , which include several fish, amphibian, bird, mammal, reptile, and mollusk species. [xlvii]

These bills are a step in the right direction to further water conservation in Colorado. Given the threat of climate change, more steps will inevitably become necessary to mitigate drought, wildfire, and species loss. Colorado should continue to fund water projects, especially considering most Coloradans support these efforts. Colorado’s efforts can serve as an example among other Colorado River Basin states needing to curb water consumption. Financial incentives like those in the Groundwater Compact Compliance Bill and the Turf Replacement Program Bill encourage Coloradans to take positive steps toward water conservation. Additionally, maintaining safe and efficient infrastructure and monitoring systems, restoring watersheds, and protecting wetland biodiversity further the state’s interest in protecting water supplies and habitats.

SOURCES

[i] Ella Nilsen, A Showdown Over Colorado River Water is Setting the Stage for a High-Stakes Legal Battle , C.N.N. News (Jan. 30, 2023), https://www.cnn.com/2023/01/30/us/colorado-river-water-california-arizona-climate/index.html .

[ii] Jerd Smith, It’s all White: Colorado’s Statewide Snowpack Tops 140%, Though Reservoirs are Still Low , The Colorado Sun (Mar. 30, 2023), https://coloradosun.com/2023/03/30/colorado-snowpack-reservoirs-drought/ .

[iii] Ella Nilsen, Senators to Tour Colorado River as Water Negotiations Reach Critical Juncture , C.N.N. News (March 30, 2023), https://www.cnn.com/2023/03/30/politics/colorado-river-senators-trip-climate/index.html .

[iv] Dan Boyce, Coloradans Want More Investment in Water Conservation, New Poll Finds , C.P.R. News (Feb. 15, 2023), https://www.cpr.org/2023/02/15/coloradans-want-more-investment-in-water-conservation-new-poll-finds/ .

[v] Boyce, supra note iv.

[vi] Governor Polis Signs Multiple Bills Funding Critical Water Conservation Programs , Colo. Water Conservation Bd. (June 9, 2022), https://cwcb.colorado.gov/news-article/polis-signs-water-bills .

[vii] Colorado Water Conservation Board Construction Fund , Colo. Gen. Assemb., https://leg.colorado.gov/bills/HB22-1316 (last visited Apr. 2, 2023).

[viii] Colorado Water Conservation Board Construction Fund , supra note vii.

[ix] Colorado Water Conservation Board Construction Fund , supra note vii.

[x] Colorado Water Conservation Board Construction Fund , supra note vii.

[xi] Taylor Sienkiewicz, Construction to Start on Goose Pasture Tarn Dam Repair this Month , Summit Daily (Apr. 4, 2021) https://www.summitdaily.com/news/local/construction-to-start-on-goose-pasture-tarn-dam-repair-this-month/ .

[xii] Sienkiewicz, supra note xi.

[xiii] Sienkiewicz, supra note xi.

[xiv] Wildfire Prevention Watershed Restoration Funding , Colo. Gen. Assemb., https://leg.colorado.gov/bills/hb22-1379 (last visited Apr. 2, 2023).

[xv] Wildfire Prevention Watershed Restoration Funding , supra note xiv.

[xvi] Wildfire Prevention Watershed Restoration Funding , supra note xiv.

[xvii] Jessica Seaman et al., Marshall Fire May Have Destroyed 1000 Homes in Boulder County, Officials Say , The Denver Post (Dec. 31, 2021), https://www.denverpost.com/2021/12/31/marshall-fire-boulder-county-friday/ .

[xviii] Chris Outcalt, Will Massive Western Wildfires Leave More or Less Water in Rivers? , The Colorado Sun (May 6, 2022), https://coloradosun.com/2022/05/06/wildfires-impact-snowpack-water-colorado/ .

[xix] Wildfires and Water Quality , The U.S. Geological Surv., https://www.usgs.gov/centers/california-water-science-center/science/science-topics/wildfires-and-water-quality#:~:text=Wildfires%20can%20compromise%20water%20quality,and%20drinking%2Dwater%20treatment%20processes (last visited Apr. 2, 2023).

[xx] Wildfires and Water Quality , supra note xix.

[xxi] Turf Replacement Program , Colo. Gen. Assemb., https://leg.colorado.gov/bills/hb22-1151 (last visited Apr. 2, 2023).

[xxii] Turf Replacement Program , supra note xxi.

[xxiii] Rules for Outdoor Water Use , Denver Water, https://www.denverwater.org/residential/rebates-and-conservation-tips/summer-watering-rules (last visited Apr. 2, 2023).

[xxiv] Alicita Rodriguez, HOAs Go Green: Colorado Bill Forces HOAs to Accept Fake Grass and Solar Panels , C.U. Denver News (July 19, 2021), https://news.ucdenver.edu/hoas-go-green-colorado-bill-forces-hoas-to-accept-fake-grass-and-solar-panels/ .

[xxv] Rodriguez, supra note xxiv.

[xxvi] Justin Stabley, What is Xeriscaping? How You Can Turn Your Lawn into a Sustainable Oasis , P.B.S. News (Sept. 5, 2022), https://www.pbs.org/newshour/science/how-xeriscaping-offers-a-water-efficient-environmentally-friendly-alternative-to-lawns .

[xxvii] Stabley, supra note xxvi.

[xxviii] Jaleesia Fobbs, Pueblo West Water Dept. Offering Residents $500 Toward Lawn Replacement and Xeriscaping , KRDO NEWS (Mar. 14, 2023), https://krdo.com/top-stories/2023/03/14/pueblo-west-water-dept-offering-residents-500-toward-lawn-replacement-and-xeriscaping/ .

[xxix] Danielle Kreutter, Aurora Water Launches Rebate Program to Cover Some of the Cost of Replacing Lawns with Xeriscaping , Denver 7 News (Mar. 8, 2023) https://www.denver7.com/news/front-range/aurora/aurora-water-launches-rebate-program-to-cover-some-of-the-cost-of-replacing-lawns-with-xeriscaping .

[xxx] Hannah Metzger, Colorado to Incentivize Residents to Replace Grass Lawns with Water-saving Landscaping , Colo. Politics (June 8, 2022), https://www.coloradopolitics.com/legislature/colorado-to-incentivize-residents-to-replace-grass-lawns-with-water-saving-landscaping/article_7788d4b4-e764-11ec-a734-6732680dbbe4.html .

[xxxi] Krystal D’Costa, The American Obsession with Lawns , Scientific American (May 3, 2017), https://blogs.scientificamerican.com/anthropology-in-practice/the-american-obsession-with-lawns/ .

[xxxii] D’Costa, supra note xxxi.

[xxxiii] D’Costa, supra note xxxi.

[xxxiv] Groundwater Compact Compliance Fund , Colo. Gen. Assemb., https://leg.colorado.gov/bills/sb22-028 (last visited Apr. 2, 2023).

[xxxv] Groundwater Compact Compliance Fund , supra note xxxiv.

[xxxvi] $3,000 per acre-foot to Retire Groundwater Wells , Alamosa Citizen (Mar. 3, 2023), https://www.alamosacitizen.com/3000-per-acre-foot-to-retire-groundwater-wells/ .

[xxxvii] Groundwater , Colo. Geological Surv., https://coloradogeologicalsurvey.org/water/groundwater/#:~:text=Agriculture%20is%20the%20largest%20user,domestic%20water%20needs%20as%20well (last visited Apr. 2, 2023).

[xxxviii] Michael Elizabeth Sakas, To Help Refill Two Struggling Underground Aquifers, Colorado Lawmakers Set Aside $60 Million to Retire Irrigation Wells and Acres of Farmland , C.P.R. News (May 13, 2022), https://www.cpr.org/2022/05/13/colorado-aquifers-rio-grande-republican-river-basins-groundwater/ .

[xxxix] Larry Morandi, Bill Providing Millions in Relief to Republican, Rio Grande River Basins Clears First Hurdle , Water Educ. Colo. (Feb. 16, 2022), https://www.watereducationcolorado.org/fresh-water-news/bill-providing-millions-in-relief-to-republican-rio-grande-river-basins-clears-first-hurdle/ .

[xl] Morandi, supra note xxxix.

[xli] Species Conservation Trust Fund , Colo. Water Conservation Bd. https://cwcb.colorado.gov/species-conservation-trust-fund (last visited Apr. 2, 2023).

[xlii] Species Conservation Trust Fund , supra note xli.

[xliii] Species Conservation Trust Fund , supra note xli.

[xliv] Wetlands are Critical for Supporting Rare and Vulnerable Plant Species , Colo. Wetland Info. Ctr., https://cnhp.colostate.edu/cwic/condition/biodiversity-significance/#:~:text=Wetlands%20are%20critical%20for%20supporting,rare%20and%20vulnerable%20plant%20species (last visited Apr. 2, 2023).

[xlv] Wetlands are Critical for Supporting Rare and Vulnerable Plant Species , supra note xliv.

[xlvi] Wetlands are Critical for Supporting Rare and Vulnerable Plant Species , supra note xliv.

[xlvii] Threatened and Endangered List , Colo. Parks & Wildlife, https://cpw.state.co.us/learn/pages/soc-threatenedendangeredlist.aspx (last visited Apr. 2, 2023).

Northern California State Water Board’s Novel Approach to Sharing Water Rights

Fri, 03 Nov 2023 18:26:13 GMT

California has a storied and complex history of water rights evolution that has resulted in over a century’s reliance on a successful water rights permitting system. However, as a megadrought strains water resources across the southwest, the State Water Board is pushing back on California’s longstanding water rights scheme in favor of a more innovative approach: a voluntary water rights sharing agreement program.

California joined the Union as the thirty-first state on September 9, 1850. After gaining its statehood, California embraced the water rights system of the Eastern United States, based on English common law, and adopted the riparian rights system . Under the riparian rights system, water rights stem from ownership of land that borders a water source. The riparian property owner possesses the right to use that water. This right runs with the land and will remain valid even if it is never exercised.

However, the pure riparian system would not last in California. After prospectors discovered gold in 1848, California was flooded with ambitious miners hoping to find fortune in gold, as well as others hoping to find the same in providing services and goods to those gold rush miners. After the miners came the farmers, bringing great agricultural interest to the state of California. Riparian rights proved to be problematic for these two groups. Riparian rights are land based, and at this time most of the land in California was held by the federal government, with very little private land ownership. Therefore, early miners and farmers had very little opportunity to gain water rights . Additionally, riparian rights only attach to natural flow. This principle only allows water to be taken from the flow of the river as it naturally runs. This means water cannot be stored during wet years and seasons for release and use in dry years and seasons. Because of this, the system was wholly impractical for these two groups to store any large amounts of water to rely on as reserves for their operations. Consequently, these early miners and farmers were unable to rely solely on the riparian rights system to meet their needs.

As a result of this struggle, in 1855 the California Supreme Court decided Irwin v. Phillips , recognizing another kind of water right: the appropriative water right. Appropriative water rights are based on the doctrine of prior appropriation. Much to the relief of newly settled miners and farmers, water rights in the prior appropriation system are not based on owning land. The doctrine of prior appropriation rewards those who are able to put the water to beneficial use and create the most social value from the water. Under the doctrine of prior appropriation, water is allocated based on priority. The phrase used to describe this principle is “first in time, first in right.” In general, the first person to put the water to beneficial use first has priority and is considered the senior user. The senior user is able to use the amount of water they need before the junior user is able to access the water. If appropriative rights are not used, the holder loses them. Appropriative rights may be taken from the source and stored anywhere to be used later, making them the ideal right for the western, arid California.

Despite developing a water rights system that better fit California’s needs, the state opted to keep its system of riparian rights alongside the newly minted appropriative rights system. In 1872, California enshrined the principle of riparian rights in its state constitution. In the beginning of the twentieth century California was still relying on common law as its system to allocate water. There was no state government agency monitoring these water rights issues. California concluded that it needed a more efficient system for allocation. As a result, California passed the Water Commission Act of 1913 (“Act”). The Act created both a water right permitting system and the predecessor agency to what is the modern-day State Water Resources Control Board. The State Water Resources Control Board is the current authority charged with issuing water rights permits.

In recent years, the growing population and changing weather patterns have put a strain on California's water supply, unlike any seen during the inception of California’s water rights permitting system. As of July 2022, more than thirty-two percent of land in the Western States was classified as experiencing extreme drought, with California listed as one of the states experiencing the most severe conditions, such as rapid depletion of reservoirs, explosive wildfires, and even major declines in bird populations. In fact, the past two decades have been the driest in a 1,200-year period for California. By studying thousands of tree rings, scientists are able to measure historical moisture patterns and have concluded that the Western United States is experiencing a “megadrought,” something unseen since 800 A.D.

As a result of this climate crisis, debates are beginning to erupt regarding the best way to amend California’s century-old water rights system to best fit life in the modern era. In 2022, California Senate Democrats introduced a $7.5 billion-dollar proposal for a “climate resilient water system.” This system would entail purchasing lands with senior water rights from holders willing to sell. After acquiring these lands, the plan would “retire water use incrementally from multiple water uses in a basin and across wide geographies.” Proponents of the plan claim this will help achieve the desired goal of providing clean drinking water and improving conditions of wildlife refuges and fish habitats. However, this proposal poses significant legal risks that may harm some senior rights holders and leave California State vulnerable to litigation. Water rights are a property interest. By attempting to regulate senior water rights, California State might have had to defend against takings claims.

Instead of taking a risky regulatory approach, the State Water Board is testing something novel: a voluntary water rights sharing agreement program. Water rights holders in the Upper Russian River watershed in Mendocino and Sonoma Counties are piloting this program. Anticipation of a water supply shortage following the unrelenting drought conditions of the last year was the spark needed to drive innovation in the method of allocating water. The water rights holders of these counties began to meet once a week in hopes of striking a new agreement to avoid possible curtailments. The Upper Russian River program was formed as a result of these meetings.

Eligible to all water rights holders by enrollment, the program provides for a twenty to thirty percent reduction of water use by senior rights holders. In addition to senior rights holders, cities of the region have also begun enforcing water conservation. The water savings resulting from this use reduction are shared with junior rights holders, whose use would otherwise have been curtailed. For rights holders not enrolled in the program, there is an emergency curtailment regulation in place. These backstop curtailments will become effective based on seniority. In effect, the trickle-down results of the program serve to prevent the previous all or nothing result of the appropriative water rights system.

While the Upper Russian program is green and remains unchallenged, there is promising precedent that could provide solid legal footing for programs that deviate from their state water rights scheme. In a fight over groundwater rights in Diamond Valley, Nevada, the state Supreme Court held that its state engineer could deviate from Nevada’s seniority-based water law scheme. The Nevada Supreme Court’s decision authorized the controversial Diamond Valley groundwater plan to continue. Unlike the Upper Russian program, the Diamond Valley groundwater plan required all rights holders to reduce their use, rather than relying solely on volunteers. With this strict distinction came significant discussion by the dissent in the case regarding the constitutional implications of this decision and whether the government must pay just compensation to senior water rights holders for the plan’s effects on their rights.

Only time will tell if the strict approach of the Diamond Valley plan will be upheld as the mainstay precedent for innovative programs such as these; or perhaps the voluntary nature of the Upper Russian program will offer the best compromise. However, the cooperative nature of the Upper Russian program places it as the most likely candidate for success. By being voluntary, the Upper Russian program is more likely to be praised as a win for its flexibility and promotion of innovation in times of crisis, and it is less vulnerable to criticism labeling it as over regulatory or burdensome. For these reasons, the Upper Russian program model could be applied in Colorado, as it has strong potential to establish itself as the foundation for novel voluntary water rights sharing programs across the West.

Sources

California State Library Multimedia, Water and Drought in California: A Legal Primer , Youtube (Nov. 9, 2022), https://www.youtube.com/watch?v=rVti_wb6RaA .

Daniel Rothberg, Justices uphold groundwater plan in ruling that could 'significantly affect water management,’ The Nevada Independent (June 22, 2022), https://thenevadaindependent.com/article/justices-uphold-groundwater-plan-in-ruling-that-could-significantly-affect-water-managementefbfbc .

Ian James, Western megadrought is worst in 1,200 years, intensified by climate change, study finds , Los Angeles Times (Feb. 14, 2022), https://www.latimes.com/environment/story/2022-02-14/western-megadrought-driest-in-1200-years .

Paul Rogers, Current drought is worst in 1,200 years in California and the American West, new study shows , The Mercury News (Feb. 14, 2022), https://www.mercurynews.com/2022/02/14/current-drought-is-worst-in-1200-years-in-california-and-the-american-west-new-study-shows/ .

Stephanie Elam, Property owners and officials find ways around century-old laws as the West runs out of water , CNN (July 10, 2022), https://www.cnn.com/2022/07/10/us/west-water-crisis-property-rights-climate/index.html .

Water Law in California , Water Education Foundation (last updated 2020), https://www.watereducation.org/aquapedia/water-rights-california#:~:text=California's%20growth%20has%20closely%20paralleled,of%20land%20bordering%20a%20waterway .

Deterrence Failures: An Analysis of Punitive Damage Caps following the East Palestine, Ohio Train Derailment Disaster

Tue, 26 Sep 2023 16:17:05 GMT

Are current punitive damages caps sufficient to deter bad actors from contaminating the environment? The recent train derailment in East Palestine, Ohio, demonstrates that Ohio’s punitive damages cap may be a drop in the bucket for large corporations. Nearly every state has its own cap on punitive damages, which is usually tied to a defendant’s liability for compensatory damages. These statutory caps may defeat the purpose behind punitive damages: punishment and deterrence.

On February 3, 2023, a Norfolk Southern train carrying chemicals and combustible materials derailed and caught fire in East Palestine, Ohio. [i] The train was carrying vinyl chloride, a “toxic flammable gas.” [ii] Vinyl chloride is used to make PVC and is produced in tobacco smoke; it is also associated with an increased risk of liver cancer. [iii] To limit the chance of explosion and shrapnel, authorities authorized a controlled release of the chemicals on the train. [iv] All residents were evacuated within the one-by-two mile area surrounding the derailment. [v] Latest reports indicate that the derailment was caused by a wheel bearing overheating to above two hundred and fifty degrees Fahrenheit above ambient temperature. [vi] Norfolk Southern’s safety guidelines do not require train operators to “take action until wheel bearings reach one hundred seventy degrees Fahrenheit above ambient temperature.” [vii] The temperature jumped nearly one hundred and fifty degrees between defect detectors along the track. [viii] Upon hearing the alarm, the crew attempted to bring the train to a stop, but the wheel bearing failed. [ix] The National Transportation Safety Board indicated that while more detectors could have prevented the derailment, the crew followed safety regulations. [x] Since the derailment, however, there have been major concerns regarding the safety of East Palestine’s air and water as some residents have experienced headaches and rashes. [xi]

On February 15 ^th the Governor of Ohio, Mike DeWine, informed residents that water was safe to drink and that the Environmental Protection Agency (“EPA”) found no contaminants in the water. [xii] However, out of an abundance of caution, EPA will continue to independently test water once a week. [xiii] Many local residents are skeptical of these tests and have requested that private contractors also test their water because they continue to smell chemicals and experience headaches and rashes. [xiv] Following the derailment, the Ohio Department of Natural Resources indicated that at least forty-three thousand fish have died in the area. [xv]

Norfolk Southern describes itself as one of the nation’s premier transportation companies, operating 35,316 miles of track in twenty-two states and transporting industrial products across the country. [xvi] On March 1, 2023, Norfolk was worth approximately fifty-one billion dollars . [xvii] However, the company’s worth has dropped thirty percent in 2023, and is currently worth only forty-five billion dollars. [xviii] EPA has ordered Norfolk Southern to clean up contaminated soil and water in the area, and if Norfolk Southern fails to do so, EPA will fine it seventy thousand dollars a day . [xix] Regardless, Norfolk Southern may still be liable to the residents of the area for adverse impacts on their current and future health and lowered property values.

At this time, at least eight class action lawsuits have been filed, requesting a total of five million dollars in damages. [xx] One complaint alleges that in one week, Norfolk Southern leaked more vinyl chloride than all other industrial emitters in a year. [xxi] That complaint also alleges that Norfolk Southern acted recklessly when it lit chemicals on fire instead of taking other measures to contain the chemical leakage, because when vinyl chloride is lit, it becomes phosgene gas, a chemical agent used in World War I. [xxii] Phosgene gas was responsible for the deaths of eighty-five thousand people in World War I. [xxiii] It can cause respiratory irritation, and chronic exposure can result in inflammation of the lungs. [xxiv] The plaintiffs further allege that Norfolk Southern’s general philosophy about its infrastructure is to “run it until it breaks,” and that Norfolk Southern “acted with willful and wanton conduct.” [xxv] Plaintiffs request both compensatory and punitive damages. [xxvi]

State law governs punitive damage awards, but grossly excessive or arbitrary damage awards violate federal constitutional due process rights. [xxvii] In Ohio , punitive damages are available when “the actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud.” [xxviii] In this case, in order to obtain punitive damages, the plaintiffs will need to demonstrate that Norfolk Southern acted with malice either by failing to maintain the train and train track, or by choosing to burn the chemicals as opposed to taking other steps to clean up the spill. If the case goes to trial, the jury will need to make this determination. This will be a difficult task. In Ohio , courts define malice in civil cases as “a state of mind in which conduct toward another is characterized by hatred, ill will, a spirit of revenge or retaliation, or . . . malice implied from wrongful acts purposely done without reason or excuse to the injury of another.” [xxix] More facts may emerge in the next several months about whether Norfolk Southern acted with or without malice. Under the current Ohio statute, punitive damages may not be available as there appears to be a justification for the burning of chemicals after the derailment, namely, to prevent explosions and shrapnel.

In comparison, the Colorado standard for punitive damages is “fraud, malice, or willful and wanton conduct,” with willful and wanton conduct defined as “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.” [xxx] Because the Colorado standard includes “willful and wanton conduct,” it is broader than Ohio’s malice only standard. Therefore, had the train derailment occurred in Colorado, there would be a stronger case for punitive damages.

Following the train derailment, policymakers in Ohio should revisit their state’s legal standard for punitive damages. Malice is a difficult standard for any plaintiff to prove. Expanding the scope of punitive damages to include willful and wanton conduct could increase the deterrent effect on tortfeasors. Given the impacts on individuals within the community, there is likely enough political will to make substantial statutory change.

Punitive damages are meant to deter bad actors. [xxxi] In the 1980s, however, many commentors were concerned about the possibility of runaway punitive damage awards. [xxxii] Many states have placed caps on punitive damages to limit unpredictable punitive damage jury awards. After the Exxon Valdez spill in Alaska, the Supreme Court established a one-to-one ratio of compensatory to punitive damages in the context of maritime law. [xxxiii] As relevant here, the Court in Exxon reviewed statistical evidence of punitive damages awards and determined that runaway damage awards did not pose a significant problem, as most punitive damage awards were less than the compensatory damages awards granted. [xxxiv]

In Ohio, however, punitive damages are capped at twice the compensatory damages. [xxxv] And in Colorado, punitive damages are capped at a one-to-one ratio unless the defendant repeated the behavior in a willful and wanton manner or acted willfully and wantonly in further aggravating existing damages in the matter, in which case Colorado courts may award up to three times the sum of compensatory damages. [xxxvi] If the court awards the Ohio plaintiffs the five million dollars they have requested, the maximum punitive damages they could receive is ten million dollars. Given Norfolk Southern is worth forty-five billion dollars, an order to pay ten million dollars in punitive damages would hardly deter future, similar conduct.

Because these statutory damages caps were passed during the era of tort reform, and corporation profits continue to rise, current caps on statutory damages are outdated. In Exxon , the Court found there was never an issue concerning large punitive damage awards except in outlier cases. [xxxvii] If a corporation acted with truly reprehensible conduct towards the public, then it will not be sufficiently deterred if punitive and compensatory damages are merely a drop in the bucket in comparison to the total value of the corporation. Corporations will argue that the threat of unlimited punitive damages will hurt the economy, chill business, and limit business risk, thereby limiting revenue generation. They may argue that punitive damages awards are unfair because they are so unpredictable. However, reprehensible conduct is not the type of business risk policymakers should encourage. Additionally, the Court in Exxon established that the threat of outlier punitive awards was not a real risk.

If state policymakers are hesitant to eliminate all caps on punitive damages, perhaps they can start with eliminating punitive damages caps only on common carriers. In Ohio , a corporation is defined as a common carrier if it operates a “railroad owned by a municipal corporation of the state.” [xxxviii] Additionally, federal law assigns common carrier obligations to rail carriers. [xxxix] Norfolk Southern qualifies as a common carrier in Ohio. Given that common carriers already owe a higher duty of care to the public, if their conduct falls so far as to qualify as willful and wanton, higher punitive damages should be warranted. Common carriers are often required to transport dangerous materials and have the potential to cause extensive damage to human health and the environment.

Considering the tragedy in East Palestine, policymakers should expand the scope of liability for punitive damages. There are current bipartisan efforts to ensure that Norfolk Southern does more to help recovery in the community. [xl] Current state laws are insufficient to deter future wrongful conduct from Norfolk Southern or other railroad companies. Less than one month after the trail derailment in Ohio, a train carrying propane derailed in Florida . [xli] In March, additional Norfolk Southern derailments occurred in Springfield, Ohio and in Ayer, Massachusetts . [xlii] Increasing the scope of liability for common carriers is an additional tool to ensure that proper safety measures are taken to limit the risk that future train derailments pose, not just to human health, but to the environment.

Sources

[i] Christine Hauser, After the Ohio Train Derailment: Evacuations, Toxic Chemical and Water Worries , N.Y. Times (Mar. 1, 2023) https://www.nytimes.com/article/ohio-train-derailment.html?auth=login-google1tap&login=google1tap .

[ii] Id.

[iii] Vinyl Chloride , Nat’l Cancer Inst., https://www.cancer.gov/about-cancer/causes-prevention/risk/substances/vinyl-chloride (Nov. 3, 2022).

[iv] Dennis Romero and Marlene Lenthang, Controlled Chemical Release Scheduled to Prevent Explosion in Wake of Ohio Train Derailment , NBC News (Feb. 5, 2023), https://www.nbcnews.com/news/us-news/explosion-possible-wake-ohio-train-derailment-involving-hazardous-mate-rcna69243 .

[v] Id.

[vi] Becky Sullivan, Here’s the Most Thorough Explanation Yet for the Train Derailment in East Palestine , NPR News (Feb. 23, 2023) https://www.npr.org/2023/02/23/1158972561/east-palestine-train-derailment-ntsb-preliminary-report-wheel-bearing#:~:text=NTSB%3A%20Overheated%20wheel%20bearing%20led%20to%20Ohio%20train%20derailment%20%3A%20NPR&text=NTSB%3A%20Overheated%20wheel%20bearing%20led%20to%20Ohio%20train%20derailment%20A,prevent%20the%20derailment%2C%20officials%20said .

[vii] Id.

[viii] Id.

[ix] Id.

[x] Id.

[xi] Id.

[xii] East Palestine Water Quality Update , Mike DeWine, Governor of Ohio (Feb. 15, 2023), https://governor.ohio.gov/media/news-and-media/east-palestine-water-quality-update-2152023 .

[xiii] East Palestine Update - 2/22/23 , Mike DeWine, Governor of Ohio (Feb. 23, 2023), https://governor.ohio.gov/media/news-and-media/east-palestine-update-022223 .

[xiv] Emily Cochrane, Many in East Palestine, Skeptical of Official Tests, Seek Out Their Own , N.Y. Times (Feb. 19, 2023), https://www.nytimes.com/2023/02/19/us/politics/east-palestine-toxic-chemicals-epa.html .

[xv] Drew Scofield, ODNR Update on East Palestine: More Than 43,000 Fish Died in Train Derailment , News 5 Cleveland (Feb. 23, 2023), https://www.news5cleveland.com/news/east-palestine-train-derailment/odnr-update-on-east-palestine-tens-of-thousands-of-fish-have-died-since-train-derailment .

[xvi] Corporate Profile , Norfolk Southern, http://www.nscorp.com/content/nscorp/en/about-ns/corporate-profile.html (last visited Mar. 1, 2023).

[xvii] Norfolk Southern Corporation , Stock Analysis, https://stockanalysis.com/stocks/nsc/market-cap/ (Last visited Mar. 1, 2023).

[xviii] Id.

[xix] Kris Maher, Ohio Train Derailment: EPA Orders Norfolk Southern to Clean Up Site , The Wall St. J. (Feb. 23, 2023) https://www.wsj.com/articles/epa-orders-norfolk-southern-to-clean-up-ohio-train-derailment-site-ad6591d5 .

[xx] Jennifer Edwards Baker, Eight Lawsuits Filed Against Norfolk Southern Over Train Derailment, ‘Chemical Burn’ , Fox 19 Now (Feb. 17, 2023) https://www.fox19.com/2023/02/17/eight-lawsuits-filed-against-norfolk-southern-over-train-derailment-chemical-burn/ .

[xxi] Id.

[xxii] Id.

[xxiii] Id.

[xxiv] Medical Management Guidelines for Phosgene , Agency for Toxic Substances and Disease Registry, https://wwwn.cdc.gov/TSP/MMG/MMGDetails.aspx?mmgid=1201&toxid=182 (last reviewed October 21, 2014).

[xxv] Baker, supra note xx (citing Class Action Complaint and Demand for Jury Trial, Canterbury v. Norfolk S. Corp. at ¶ 33, No: 4:23-cv-00298-BYP (N.D. Ohio Feb. 15, 2023)).

[xxvi] Id. (citing Class Action Complaint and Demand for Jury Trial, Canterbury v. Norfolk S. Corp. at ¶¶ 101, 110, No: 4:23-cv-00298-BYP (N.D. Ohio Feb. 15, 2023)).

[xxvii] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).

[xxviii] Ohio Rev. Code Ann. § 2315.21(C)(1).

[xxix] Tibbs v. Nat’l Homes Constr. Corp., 369 N.E.2d 1218, 1224 (Ohio Ct. App. 1977).

[xxx] Colo. Rev. Stat. § 13-21-102(1)(a)–(b) (2022)

[xxxi] Rachel E. Barkow et al., Modern American Remedies Cases and Materials 177 (Concise 5th ed. 2019).

[xxxii] Id. at 188.

[xxxiii] Exxon Shipping Co. v. Baker, 554 U.S. 471, 513 (2008).

[xxxiv] Id. at 512.

[xxxv] Ohio Rev. Code Ann. § 2315.21(D)(2)(a).

[xxxvi] Colo. Rev. Stat. § 13-21-102 (2022).

[xxxvii] Exxon Shipping Co., 554 U.S. at 512.

[xxxviii] Ohio Rev. Code Ann. § 1743.02(B).

[xxxix] 49 U.S.C. § 10102.

[xl] Liz Brown-Kaiser, Lawmakers Push Norfolk Southern for More Recovery Help After Ohio Train Derailment , NBC News (Feb. 16, 2023) https://www.nbcnews.com/politics/congress/ohio-train-derailment-lawmakers-push-norfolk-southern-aid-rcna71114 .

[xli] Chantal Da Silva, Train Carrying Propane Derails a Few Miles from Florida Airport , NBC News (Mar. 1 2023) https://www.nbcnews.com/news/us-news/train-carrying-propane-derails-miles-away-florida-airport-rcna72838 .

[xlii] Emily Olson, Another Norfolk Southern Train Derails in Ohio , NPR News (March 6, 2023), https://www.npr.org/2023/03/06/1161262824/train-derailment-springfield-ohio ; Massachusetts Train Derails, No Hazardous Cargo Reported , A.P. News, https://apnews.com/article/freight-train-derailment-massachusetts-307dd02daf1ac56eadaf97ec89c1d9b2 .

In Blowing Up Ukraine’s Nova Kakhovka Dam, Russia Torpedoed Its Claim To Crimea Water Deliveries

Fri, 28 Jul 2023 14:01:02 GMT

On June 6, 2023, the Nova Kakhovka Dam on the Dnieper (Dnipro) River in Ukraine suddenly ruptured. The rupture resulted in widespread flooding in the Kherson region east of the river as the large reservoir behind the dam emptied out.

Initial news reports of the June 6, 2023 event highlighted the strategic reasons why Russia may have damaged the dam. Ukraine’s counteroffensive in the Russia-Ukraine War was expected to include efforts to dislodge Russian troops in the Kherson region east of the river. It is plausible that Russia intended to delay Ukrainian counteroffensive by destroying the road that ran along the top of the dam that spanned the river, and by transforming the Kherson region east of the river and below the dam into mud and muck for a few weeks.

Recent reports increasingly confirm that Russia blew up the dam. On June 16, 2023, The New York Times reported that the international group Global Rights Compliance released its findings of an investigation of the cause of the June 6, 2023 rupture of the Nova Kakhovka Dam. According to Global Rights Compliance, “[t]he evidence and analysis of the information available – which includes seismic sensors and discussions with top demolition experts – indicates that there is a high probability the destruction was caused by pre-emplaced explosives positioned at critical points within the dam’s structure “ and that “the finding that the dam was blown up with pre-emplaced explosives by the Russian side is an 80% above determination.”

On June 18, 2023, an Associated Press article (published in the Huffington Post) reported “Russia had the means, motive and opportunity to bring down [the Nova Kakhovka Dam] that collapsed earlier this month while under Russian control . . . Images taken from above the Kakhovka Dam show an explosive-laden car atop the structure and two officials said Russian troops were stationed in a crucial area inside the dam where the Ukrainians say the explosion that destroyed it was centered.”

Russia’s actions to destroy the Nova Kakhovka Dam have military implications for the Russia-Ukraine War; these actions may also affect the viability of Russia’s claim that under international law Crimea is entitled to continue to receive water deliveries from the Dnieper River via the North Crimean Canal. More to the point, Russia may have just demolished its own claims regarding water supplies for Crimea.

RUSSIA’S CLAIMS TO WATER SUPPLY FOR CRIMEA

80% of the water supply for the Crimean Peninsula (“Crimea”) comes from the waters of the Dnieper River (in Ukraine) transported to Crimea through the North Crimean Canal. The North Crimean Canal was constructed during the 1960s when Ukraine and Russia were both republics of the former USSR and when Crimea was part of the Ukrainian republic (rather than part of the Russian republic). After Ukraine became an independent nation in 1991, Ukraine and Russia entered into bilateral treaties in 1997 and 2003 that recognized Crimea as part of Ukraine rather than part of Russia.

After Russia seized Crimea from Ukraine in 2014, Ukraine discontinued water deliveries to Crimea by building an earthen and then concrete dam on the North Crimean Canal. Ukraine maintained that discontinuing water delivers to Crimea via the North Crimean Canal was a reasonable and appropriate response to Russia’s unlawful seizure of Crimea. Relying on United Nations Resolutions concerning violations of territorial sovereignty and bilateral treaties with Russia recognizing Crimea as part of Ukraine, Ukraine maintained it did not have an obligation to provide water supply to regions that Russia had illegally taken from Ukraine. As one Ukrainian commentator put it: if you steal my garden, I don’t have to keep watering it for you.

Russia countered that Ukraine had an obligation under international water law to continue delivering water to Crimea because post-2014 Crimea should be considered a part of Russia (this new political status, according to Russia, transformed the North Crimean Canal into a cross-border waterway that Ukraine must share with Russia). Russia even filed a claim against Ukraine with the European Union regarding the waters of the North Crimean Canal, which the European Union summarily rejected because it did not recognize Russia’s underlying position that post-2014 Crimea was now part of Russia.

When Russia invaded Ukraine in February 2022, one of Russia’s first military actions was to blow up the dam Ukraine had constructed to block flows in the North Crimean Canal to Crimea. As part of its counter-offensive in the Russia-Ukraine War, Ukraine has once again installed impoundments to block water in the North Crimean Canal from reaching Crimea.

RELATION OF NOVA KAKHOVKA DAM TO THE NORTH CRIMEAN CANAL

As it turns out, from an engineering standpoint, the reservoir behind the Nova Kakhovka Dam is the means by which the waters of the Dnieper River are transported into the North Crimean Canal (for transport to Crimea). The waters in the reservoir are at a higher elevation than the river, so waters in the reservoir can be released and delivered via gravity into the North Crimean Canal. There is currently no other existing infrastructure to divert the waters of the Dnieper River into the canal.

By blowing up the Nova Kakhovka Dam Russia has itself caused the emptying of the reservoir behind the dam that serves as the source for water to fill the North Crimean Canal (which Russia asserts Ukraine should continue to operate to transport water to Crimea). Putting aside the question of the viability of Russia’s claim under international law to insist on Ukraine’s continued deliveries of water to Crimea, which seems much in doubt, the new reality is that Russia itself has unilaterally destroyed the essential infrastructure needed for such deliveries of water. Having done so, Russia has now made it presently impossible for such water deliveries to take place.

OF WAR AND WATER AND THE IMPOSSIBILITY PRINCIPLE

In the context of efforts to delay and resist the Ukrainian counteroffensive, there is perhaps a short-term military logic to Russia’s decision to destroy the Nova Kakhovka Dam. This short-term logic, however, has undermined any claim Russia has or may have had under international law to insist upon Ukraine’s continued delivery of Dnieper River water to Crimea.

It is an established principle of international law (often referred to as the principle of impossibility) that one party’s obligation to a second party is relieved when the second party takes actions that destroy the subject matter of first party’s obligation thereby rendering performance by the first party impossible. In the case of the Nova Kakhovka Dam, Russia has militarily destroyed an essential component of the physical infrastructure by which water can be transported from the Dnieper River to Crimea thereby making it impossible for Ukraine to make such deliveries. Russia cannot credibly insist on Ukraine’s ongoing obligation to deliver water to Crimea now that Russia itself has blown up the dam and drained the reservoir that supplies the North Crimean Canal.

* Paul Stanton Kibel is a professor of water law and international law at Golden Gate University School of Law, serves on the Executive Council of the International Association for Water Law (AIDA) and is of counsel to the Water and Power Law Group. Ph.D. in Law Candidate, University of Manchester International Law Centre (England); LL.M. University of California at Berkeley School of Law; B.A. Colgate University (New York).

SOURCES

J. Barrigan Marcantino, Unifying the Law of Impossibility, 8 Hastings International and Comparative Law Review 41 (1984).

Evidence Suggests Russia Blew Up Kakhovka Dam in Ukraine, The New York Times (June 16, 2023).

Highly Likely Russia Behind Dam Collapse: International Experts, Huffington Post (June 18, 2023).

Paul Stanton Kibel, A Crossborder Waterway (or Not): The Place of the North Crimean Canal in Russia’s Ukraine Invasion, International Law News (October 2022).

United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, United Nations General Assembly, A/RES/52/229 (July 8, 1997).

United Nations General Assembly Resolution 2625 (October 1970) and Resolution 3314 (December 14, 1974).

1997 Treaty on Friendship, Cooperation and Partnership Between Ukraine and the Russian Federation.

2003 Treaty on Russian-Ukrainian State Border.

Forever Chemical Litigation

Thu, 09 Feb 2023 19:42:27 GMT

The Future of Toxic Tort Litigation Surrounding PFOA and PFOS

Modern society benefits from the use of non-stick cookware, stain-proof carpets and clothing, long-wear makeup products , cardboard food packaging, and firefighting foams. However, these products often contain chemical coatings of PFOA and PFOS, two types of PFA chemicals which allow the products to resist “oils, stains, water, and heat.” Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) are commonly known man-made chemicals used in industry and consumer products since the 1940s. Many refer to these as chemicals “forever chemicals ” because they do not break down in the environment. In 2016, the EPA stated that forever chemicals were not a threat at low levels. However, in 2022, the EPA updated drinking water advisories, stating that PFOA and PFOS could be dangerous to human health in water even with concentrations at near zero. Essentially, any amount of PFOA or PFOS found in drinking water poses a risk to human health. Researchers have detected PFOS and PFOA in the blood of humans and animals worldwide . The health effects following exposure to low levels of these chemicals are currently unknown; however, in large amounts, these chemicals can affect development, reproduction, and damage the liver .

A new study from the Environmental Working Group indicates that the drinking water of a majority of Americans likely contains “forever chemicals.” By the end of 2022, the EPA plans to propose a National Primary Drinking Water Regulation for PFOA and PFOS, with a goal to finalize the rule by the end of 2023. Litigation surrounding forever chemicals is growing. In Philadelphia, 3M and DuPont face claims for design defect, failure to warn, nuisance, trespass, and negligence for using PFAs in their products, after city and state officials discovered unsafe levels of PFOA and PFOS in the city’s drinking water. 3M has been named a defendant in several lawsuits and may face $30 million in liability. CoverGirl is facing litigation for deceptively marketing its products as safe, despite containing PFAs.

If large populations of people begin to experience side effects tied to PFOA or PFOS exposure, then companies whose products contain these chemicals may also be subject to liability. If an injury is caused by a toxic substance, then the responsible companies may be liable for a toxic tort. Commonly known toxic tort litigation historically surrounded the use of asbestos and DES, a cancerous drug prescribed to pregnant women. Forever chemical litigation may resemble those cases given that scientists are discovering adverse health effects after widespread use of these products.

Duty and Breach

Companies using forever chemicals may be held to a higher standard of care given that a reasonable company would have made efforts to avoid the contamination of drinking water. To determine if a company acted reasonably, a court may evaluate whether there was a foreseeable risk of injury. However, in the case of forever chemicals, this may be a difficult task. Forever chemicals have been used since the 1940s, but it wasn’t until 2022 that the EPA updated drinking water health advisories. Plaintiffs will need to establish that the defendants knew the risks associated with these chemicals and continued to use them. DuPont and 3M allegedly knew of these risks for decades.

Companies may also be held strictly liable for the discharge of forever chemicals. The advantage of suing under a theory of strict liability is that plaintiffs do not have to prove fault. Defendants can be held strictly liable if they engage in ultrahazardous activities. Manufacturing and distributing products that use forever chemicals may be considered an ultrahazardous activity. Unfortunately, strict liability will depend on the nature of the product. Strict liability may not apply if the usefulness of the product outweighs the risks to the consumer. Products utilizing forever chemicals are often very useful. For example, customers for decades have found non-stick cookware extraordinarily useful.

Companies have a duty to follow federal laws, and violation may establish a breach of duty. Forever chemical contamination of drinking water has implications under the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA). Under the SDWA, the EPA sets maximum contaminant levels for public drinking water. Currently, PFAs are not considered primary or secondary contaminants. However, in 2022 PFAs were added to the Contaminant Candidate List . Until the EPA lists forever chemicals as chemical contaminants under the SDWA, it could be difficult for plaintiffs to hold companies liable for violation of the Act. The EPA plans to set a non-enforceable maximum contaminant goal level, as well as an enforceable maximum contaminant level. The maximum level is set at the point where there are no known or anticipated health effects on people. Given the EPA’s recent health advisory, the standard for PFAs will likely be set at near zero. Additionally, the Clean Water Act regulates pollutants in the Waters of the United States. The EPA has issued a memo to reduce permits allowing PFA pollutants. If a company releases forever chemicals without or in violation of a permit, then this could establish liability. Plaintiffs will have the largest likelihood of proving a breach of duty if they establish that a company violated either the SDWA or the CWA.

Causation and Damages

In a typical tort case, plaintiffs must establish that the defendant’s actions were a but-for cause of their injury. In the future, several companies may be liable for their use of forever chemicals. However, plaintiffs could face challenges in allocating their injuries to specific companies. To prove liability in a toxic tort case, plaintiffs must identify the substance that resulted in injury. A plaintiff may be successful in tracing forever chemicals to where the chemicals were used, and perhaps even trace chemical combinations to the area where their injury occurred. However, the pervasiveness of forever chemicals in the environment could impose challenges for plaintiffs. It may be difficult to establish that one defendant caused the plaintiff’s injuries if forever chemicals can be associated with several other companies. Defendants will likely argue that they are not the but-for cause of the plaintiff’s injuries because other companies’ use of forever chemicals made the injury inevitable. Given that forever chemicals do not break down in the environment, the number of responsible parties may even date back to the 1940s.

A court may choose to apply market share liability, placing the burden on parties that financially benefited from the use of forever chemicals to prove that they did not cause the plaintiff’s injury. Market share liability was used to apportion damages in cases surrounding the use of DES. DES was a drug given to pregnant people between 1941 and 1971 to prevent miscarriages. DES was shown to cause cancer in daughters due to their exposure to the drug before birth. The court in Sindell v. Abbott Laboratories held that “[e]ach defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused the plaintiff’s injuries.” Market share liability was applied to DES cases because it was impossible to prove which company contributed to the plaintiff’s injury. The amount of liability corresponded to each manufacturer’s market share.

However, DES cases differ from the use of forever chemicals because forever chemicals cross over several different markets. Given the difficulty of establishing each company’s share of a market when there are several different markets, a court may choose to apply a theory of alternative liability. In Summers v. Tice , the court held that if multiple parties acted negligently, and it is not possible to prove which defendant caused the plaintiff's injury, then the burden shifts to the defendants to show that they did not cause the plaintiff’s injury. Alternative liability may be the best way for plaintiffs to hold multiple defendants liable given that the use of forever chemicals spans several markets. The burden would be shifted to companies to show that they did not pollute the public’s drinking water with forever chemicals.

Even if plaintiffs shift the burden to defendants to establish that they were not the but-for cause of the injury, defendants may still escape liability if they were not the proximate cause. In Palsgraf v. Long Island Railroad Co . , the court held that defendants only owe a duty to expected plaintiffs within the zone of reasonably foreseeable harm. Defendants may argue that holding companies liable for issues pertaining to drinking water is not foreseeable, especially given the EPA’s change in policy over forever chemicals in 2022. For many decades, there was no known harm associated with these chemicals, so how could companies foresee harm to the public? The defendants could perceive those who drank contaminated public water as unexpected, unforeseeable plaintiffs. This argument is not likely to be successful given that many defendants, such as 3M and DuPont, acknowledged they knew the risk that forever chemicals posed for several years. Additionally, under a theory of product liability within a toxic tort claim, a duty is owed to all persons who will be foreseeably affected by the product. This may be broad enough to encompass plaintiffs who did not directly use products containing PFAs but were injured after drinking contaminated water.

Damages may be substantial for companies who manufactured products with forever chemicals. Should there be widespread health effects associated with forever chemicals, the classes of possible plaintiffs could be large. Litigation over the use of forever chemicals in products will continue to grow as agencies learn more regarding the health effects of exposure to PFAs. Punitive damages may be available if the chemicals were well known by the defendant to be toxic, as is allegedly the case with 3M and DuPont. However, the success of these toxic tort lawsuits may depend on the EPA’s updated regulations promulgated under the SDWA. The EPA should label PFAs as a contaminant under the SDWA. This will help plaintiffs hold companies liable for any future contamination of drinking water. Given the difficulty of removing forever chemicals from the environment, strong regulations must be in place to prevent any further damage to the country’s drinking water.

SOURCES

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A Drying River: The Federal Response to Decreasing Water Levels in the Colorado River

Wed, 18 May 2022 16:00:03 GMT

A national effort to regulate water consumption is needed to ensure the upper and lower basin states are all collaboratively, and aggressively, working towards reducing both residential and agricultural water use.

The need for water conservation is growing in many areas of the world. In Amman, Jordan , it is typical for the federal government to deliver a family’s entire supply of water to their residential home once per week. Water conservation is a part of daily life in Amman. This type of federal regulation of water resources is unfamiliar in the United States; however, increasing drought may require a more pronounced federal involvement in states’ water resources, especially along the Colorado River.

The Colorado River is a critical resource to the West. The river supports seven states , Mexico, and thirty Native American tribes, supplying water to cities such as Denver, Salt Lake City, Albuquerque, Cheyenne, San Diego, and Los Angeles. Forty million people rely on the Colorado River for municipal use and irrigation. The West also relies on the river for electricity, as it produces 4,200 megawatts of electrical generating capacity. Demand for water is likely to increase alongside population growth. The number of people reliant on the river is projected to increase from forty million to 76.5 million by 2060. Unfortunately, the amount of water available in the river is decreasing due to drought driven by climate change. Since the 1900s , the Colorado River water flow has dropped by twenty percent. The regions around the river have experienced drought since 2000 and now lasting over twenty years. According to some experts , climate change will reduce snowfall and runoff, resulting in lower water levels. Snowpack ensures that the river’s water levels are replenished each year. In 2021, the federal government declared a water shortage for the first time ever at Lake Mead, a major reservoir along the river located in Nevada. Due to the shortage, Nevada and Arizona are required to cut seventeen percent of their water intake from the river. These cuts are predominately felt by farmers in both states.

The Colorado River Compact and 1944 Mexican Water Treaty

Given that the Colorado River is a shared resource, it demands an agreement to allocate water amongst several states. Unfortunately, the current agreement is one hundred years old and was written during a period of high-water levels. The 1922 Colorado River Compact (“Compact”) apportioned water between the upper basin states consisting of Colorado, Wyoming, Utah, and New Mexico, and the lower basin states consisting of Arizona, California, and Nevada. The Compact was largely a result of the rising population in California, and concern from other states that California would establish priority rights to the water in the Colorado River. Additionally, in Wyoming v. Colorado , the Supreme Court held that Colorado could not disregard Wyoming’s prior appropriation rights to the Laramie River when diverting water for its own use. This meant that prior appropriation rights could cross state lines, adding further concern to California’s growth. For the first time ever, all affected states came together to negotiate their rights to the Colorado River and created the Compact, with hopes of avoiding federal regulation and expensive litigation. Essentially, the Compact ensures that upper basin states provide lower basin states with their share of water from the Colorado River.

Twenty-two years later, the United States and Mexico passed the 1944 Mexican Water Treaty (“Treaty”). The Treaty ensures that Mexico also receives its fair share of water resources for irrigation and supply to cities such as Mexicali, Tecate, and Tijuana. These agreements dominate the law surrounding the apportionment of water in the Colorado River, but how will they stand up to decreasing supply and increasing demand?

As soon as 2025 , experts predict that the lower basin states may not receive their share of water set forth in the Compact due to increasing drought. The Compact has a mechanism for protecting the lower states in this situation, namely a compact call which would force upper basin states to cut their water usage to deliver water to California, Arizona, and Nevada. To date, there has never been a compact call. To add to the problem, the Compact negotiations established fixed amounts of water using data from a year with unusually high water levels. In 1922, the Colorado River was thought to contain 17.5 million acre-feet of water a year, however, between 2000 and 2021, the river only contained 12.3 million acre-feet a year. Colorado will feel the largest impact of a compact call because it has the largest apportionment of the upper basin states. At worst, Denver could lose half of its water supply , although the city would likely reach deals with higher priority rights holders—such as farmers—in the state to meet the city’s needs. The upper and lower basin states disagree over the best ways to avoid a compact call. The upper basin states would like to see the lower basin states reduce their use of water, as the upper basin states argue they have already been absorbing water shortages. The lower basin states continue to use the same amount of water apportioned to them in 1922, even though water levels have decreased. While the lower basin states have reservoirs, the upper basin states rely primarily on snowpack to replenish their water. Unfortunately, snowpack could decrease by forty-five percent by 2050.

Possible Federal Responses to Decreasing Water Levels

Currently, water law is dictated primarily by state laws and compacts. However, a federal response is likely necessary to address the growing tensions between the basin states as water levels continue to drop. To date, deference has been given to state laws as states have more readily available information regarding their own water resources. However, the federal government—either in the form of the judiciary or the legislature—may need to step in to resolve disputes or mitigate issues brought on by climate change. The federal government has often assisted states in the negotiation of state compacts, but it is unclear if the current compacts will be sustainable in the future.

Planning and mitigation are favorable methods to addressing water shortages, as opposed to disputes requiring litigation at the Supreme Court. Federal courts have original jurisdiction to hear disputes between states. Water conservation strategies and infrastructure projects are the best options for addressing increasing demand and decreasing supply within the Colorado River. In Sporhase v. Nebraska , the Supreme Court held that interstate water resources qualify as commerce, thereby placing interstate water resources within Congress’s authority under the Commerce Clause.

Water Conservation Legislation

Congress can assist in water conservation efforts through varying forms of regulation and oversight, such as implementing a water tax or regulating agricultural and urban water consumption.

A national water tax on all water purchases may have the desired effect of improving water conservation. However, this would require an enormous amount of political capital as a water tax on residential and agricultural water use would be unpopular. Alternatively, Congress could pass legislation providing subsidies or tax credits to those who take efforts to conserve water. This type of legislation may be more politically feasible than a national water tax and may foster technological innovation. Legislation requiring effective urban planning and land use may also reduce water consumption. For example, legislation requiring high-efficiency appliances and additional regulations for new residential homes and buildings may further water conservation goals.

Federal Infrastructure Projects

In addition to passing legislation aimed at reducing nationwide water consumption, infrastructure projects can help mitigate a decreasing water supply. Investing in more water storage systems in the West will be necessary unless consumption is greatly reduced. Storage systems allow for more reuse and recycling of currently available water. Prior to the 1970s , water storage systems and construction of dams were very popular, however, development slowed due to environmental concerns and impacts on local habitats and wildlife. New storage systems will need to be smart and deliberate to meet the public’s need for water while mitigating the damage to local environments. Desalination projects may also be necessary to increase the available water supply by converting saline water into freshwater. However, like water storage systems, desalination plants negatively impact marine life. Desalination plants create brine as a byproduct , which is damaging to ecosystems. The brine sinks to the ocean floor and often contains toxic metals and chemicals. Desalination is also energy-intensive and uses fossil fuels. Desalination will require more technological innovation to reduce these harmful effects.

What should be the Federal Response?

To mitigate as much environmental damage as possible, the federal response to lowering levels in the Colorado River should revolve primarily around aggressive water conservation efforts. A national effort to regulate water consumption is needed to ensure the upper and lower basin states are all collaboratively, and aggressively, working towards reducing both residential and agricultural water use. National infrastructure projects will likely also be needed. However, reducing consumption should be the priority to limit the environmental impacts that will inevitably follow large infrastructure projects, such as water storage and desalination. At a minimum, the federal government will need to assist with state negotiations regarding the future of the Compact, as it may no longer be a feasible agreement with the continued drought in the West and the increasing challenges presented by climate change knocking at our door.

SOURCES

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We Need a Watershed Moment: New Legislation Seeks to Study and Preserve Colorado Watersheds Facing Wildfire Threats

Wed, 11 May 2022 15:45:04 GMT

Wildfires occurring with increased strength and frequency endanger the characteristics of Colorado watersheds that help them to do their jobs.

In American politics, a ‘ watershed moment ' is a turning point—something pivotal that can alter the outcome or trajectory of a movement. This idiom borrows its name from a geological feature where a land area channels rainfall and snowmelt into creeks, streams, and rivers, eventually guiding the water into an outflow point such as a lake or an ocean. Watersheds are essential to a healthy ecosystem ; however, Colorado’s watersheds are struggling to survive. Wildfires occurring with increased strength and frequency endanger the characteristics of Colorado watersheds that help them to do their jobs.

When snow melts in the Rockies , watersheds help guide the snowpack’s moisture into tributaries and groundwater sources that eventually make their way to communities located to the south and west of the source. Watersheds consist of land features like rocks, soil, and vegetation that direct water through man-made conveyances such as pipelines, ditches, aqueducts, and reservoirs . In Colorado, most people know that watersheds may make or break a community’s health. Ten watersheds in the mountains provide more than two-thirds of Colorado's drinking water . Watersheds are critical ecosystems that determine whether pollutants make it into the groundwater that feeds our crops, regulate nutrients for sensitive wildlife areas, prevent soil erosion from flooding communities, and more.

Colorado Legislation Addresses Watershed Wildfire Susceptibility

Seeking to assess the wildfire-fueled danger to Colorado’s watersheds, Governor Polis signed Senate Bill 21-240 into law in June 2021. This ‘Wildfire Ready Watersheds’ legislation allocates $30 million in funds for the Colorado Water Conservation Board (“Board”). The Board will use the money to offer grants for local communities to repair wildfire damage to local watersheds and/or mitigate future damage, adapt city-planning and land-use for wildfire resilience, and evaluate overall susceptibility to wildfire damage to watersheds in Colorado.

While individual communities may use the funding for localized studies of their watersheds, the bill is not limited to small research projects. Instead, legislators have empowered scientists, community organizers, and other stakeholders to take a broad approach to watershed research. By December 31, 2022, the bill requires progress on a state-wide survey of watershed susceptibility to wildfire damage. The state-wide scope communicates a powerful message from government officials that watershed resilience is critical to Colorado’s environmental and economic health, and despite its cost, will remain a legislative priority.

Of course, SB 21-240 is only the newest of a decade’s worth of attempts from state officials to facilitate watershed resiliency efforts in Colorado. After the 2012 wildfires and 2013 flooding events across the state, the Colorado Resiliency Office put together a framework prioritizing four themes : “adapting to our changing climate, understanding risks from natural and other hazards, addressing social inequities and unique community needs, and pursuing economic diversity and vibrancy.” Within that framework, watershed preservation takes a star role . Coalitions of government offices, community organizers, scientists, and other stakeholders across Colorado see the intersection of watershed resiliency and community health , as well as the threat fires pose to watershed survival.

High-Severity Fires Lead to Longer Recovery Times for Watersheds

Fire is not a new threat to Colorado, or the West in general. As early as 2007, researchers at the University of Colorado warned that the “threat of high-severity wildfires to Colorado Front Range Communities and their water supplies [were] real and unprecedented.” Long-time policies in the region that focused on 100% fire-prevention contributed to dense underbrush rarely thinned out by smaller, more easily controlled fires. As a result, that dense underbrush often creates something called a “ fuel-ladder ,” which carries ground-level fire quickly into the tree-tops, resulting in stronger fires with more intense damage than ever before. Accumulating vegetation along the forest floor essentially creates kindling. A fire that might have swept quickly through an area instead stays longer and burns hotter, clearing any vegetation in its path.

In general, scientists know that watersheds are particularly susceptible to long-term effects from wildfires . The higher the severity of the fire, the more likely it is that a watershed can be dramatically—perhaps permanently—altered. A particular risk for watersheds is the delicate soil that preserves root systems and absorbs water. Wildfires consume the surface layer of the soil itself , in addition to destroying the binding organic matter that prevents erosion. As a result, the minerals and metals in the burned soil rise to the surface , manifesting as a hydrophobic layer that changes the direction and velocity of water run-off.

When the Grizzly Creek Fire burned through Glenwood Canyon in 2020, it left a devastating path of damage to homes and wildlife alike. In the White River National Forest, there are places where the fire injured the soil so badly that it separated from the mountain below. When the snow melted the following spring, the watershed guided soil and ash into the creek. When soil burns and mixes with ash, toxins are released, and leaving the groundwater contaminated by metals such as lead and mercury. In high concentrations, these toxins are dangerous for human consumption, and pose a large threat to wildlife and vegetation, as well . When fire burns through vegetation , it also removes the intricate system of roots that help soil stay put and increases the likelihood that soil erosion will lead to flooding and other dangers. Snowpack that collects in a burned forest accumulates black carbon , releasing it back into the atmosphere and increasing greenhouse effects on climate change. It can take more than sixty years after a fire for a forest to regain even a fraction of its former health.

Urgent Wildfire Threats Inspire Unorthodox Solutions

As climate change fuels fires that burn longer , stronger, and cover more ground, an increasing proportion of Colorado’s watersheds are in trouble. Without work to preserve watershed integrity and map out plans for disaster resilience, communities in the Colorado Front Range are at risk for long-term complications to their water supply that are anything but easy to resolve.

Difficult is not the same as impossible, but traditional remedies relied upon by state officials have notable downsides . One option is to use mechanical remedies such as chainsaws to remove dense vegetation to reduce risk of high-severity fires, but this option is costly and labor-intensive . Another option– prescribed fire –carries significant risk. A small, intentionally set fire can easily grow unwieldy and out-of-control due to unpredictable weather conditions and increasingly dry environments. For example, the Cerro Grande Prescribed Fire ultimately burned more than 47,650 acres after escaping the control of National Park Service fire personnel at Bandelier National Monument.

Solutions for protecting watersheds from wildfire damage are so controversial that some Colorado towns have had to become creative. In 2020, Nederland granted their local watershed “ inalienable rights ,” laying legal groundwork to treat the watershed the same way we might treat a person or corporation. However, critics of the resolution are not confident the idea will do much to guide formal legal solutions to environmental dangers. Proponents for “ rights of nature ” measures argue that granting legal personhood for watersheds will allow communities to better advocate on behalf of rivers, but critics are quick to point out that the idea is not grounded in actual American law–yet. That being said, in other countries activists have successfully lobbied for “rights of nature” provisions. Colorado activists could ( and have already started to ) follow their lead. The wildfire risk to Colorado’s watersheds is real and imminent, and there is not currently an obvious remedy. Perhaps urgent problems require unorthodox solutions.

Watershed Resilience Funding in Colorado Helps the Entire Mountain Region

Although there is no obvious solution, SB 21-240 is a promising start. SB 21-240 acknowledges that more research is needed to determine how to reduce wildfire harm to the state’s precious watersheds, while also putting funding in place that the Board can grant immediately. Such funding allows Colorado communities to repair old fire damage and mitigate new damage as the Board waits for the results of the state-wide survey to inform a long-term strategic plan. Eligible grant recipients include non-profit organizations, watershed coalitions, local governments, conservation and water conservancy districts, and Colorado’s tribal governments.

Prioritizing the health of Colorado’s watersheds starts locally, but the national impact is significant. At least eighteen other states depend on the health of Colorado’s watersheds for their own water supply. While SB 21-240 allocates funding to study and preserve Colorado’s watersheds, the impacts of this bill will extend further than the state’s geographical borders, rippling through the mountain region and beyond.

SOURCES

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Michael Elizabeth Sakas, Melting Snow Usually Means Water for the West, But This Year It Might Not Be Enough, Nat’l. Pub. Radio (May 23, 2021), https://www.npr.org/2021/05/23/998566953/melting-snow-usually-means-water-for-the-west-but-this-year-it-might-not-be-enou.

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“Climate Change is Water Change”: The Impact of the Climate Crisis on the Colorado River Basin

Wed, 04 May 2022 15:30:04 GMT

– Climate Change is Water Change –

The Colorado River Basin is a defining feature of the American Southwest and is one of the most critical sources of water in the region . The river borders seven states, two nations, and dozens of Native American reservations such as the Navajo Nation, the White Mountain Apache Nation, and the Hopi Tribe. The Colorado River Basin has shaped the face of the region, supporting a multi-billion-dollar recreation industry and providing life-giving flows to the nation, its adjacent regions and across the country. But this lifeblood of the southwestern United States is facing an increasingly alarming problem: it is just too hot.

The region is used to droughts, but an increase of temperatures will manifest itself in an increase of drought duration and frequency over the next fifty years, as well as a 9 percent decrease of natural river flow in the same time frame. In the next fifty years, droughts lasting five years or more are expected to occur 50 percent of the time . These will go from what would have been moderate droughts into severe ones, known as “hot droughts .” The current drought the Basin is experiencing is unprecedented because increased air temperatures are leading to decreased flow, whereas river flows have historically been affected by changes in precipitation.

Coupled with this increased dryness of the region, it is predicted that the Basin will experience a temperature rise of an additional five degrees Fahrenheit by 2050. The rising temperatures and decreasing water levels will impact almost all areas of human life. For instance, rising temperatures will affect the need to meet peak summertime demands in urban areas, the demand upon winter needs in mountain resort towns, and the availability of water for agricultural producers. The impact of climate change will also affect local wildlife; reduced water levels could lead to up to 75 percent of local fish biodiversity heading toward extinction by 2070.

The Impact of Climate Change on Reservoir Levels

In addition to depleting habitats for the Basin’s aquatic species, climate change has negatively impacted the water levels of the Basin’s reservoirs. Water levels in Lake Mead and Lake Powell, two of the Basin’s main reservoirs, have been falling for decades ; what is left is “bathtub rings” of mineral deposits, leaving a harsh reminder of what they used to be.

Between 2001 and 2015, Lake Mead’s elevation dropped from approximately 1,200 feet to 1,075 feet . In addition to the mineral deposits being visible along the shoreline, the declining reservoir level exposed Hoover Dam’s four intake towers. These towers channel the water from the reservoir into penstocks that serve the Dam’s seventeen hydroelectric towers. As the water moves through the generators and gets released back into the river, electricity is created. The Bureau of Reclamation (Bureau) estimates that for every one-foot drop in elevation in Lake Mead , Hoover Dam’s electricity capacity is reduced by just under six megawatts. Out of necessity, the Bureau has alleviated some of the burden by replacing traditional turbines with “wind-head” turbines, which can generate electricity at lower reservoir elevations using the wind.

At Lake Powell, the falling reservoir levels affect the generating capacity of the Glen Canyon Dam powerplant. Below an elevation of 3,490 feet, the reservoir cannot produce electricity, and at an elevation lower than 3,375 feet, the reservoir is considered a “dead pool , ” because water cannot flow downstream. The Bureau updates it’s five-year Probabilistic Projections of the river’s future conditions every January, April, and August. While Lake Mead currently has less than a 10 percent chance of hitting its minimal threshold of 950 feet by 2026, Lake Powell likely faces a dryer future. The Bureau projects a roughly 25 percent chance that Lake Powell will fall below its minimum by 2026.

The Supply and Demand Problem

This is not the first time the Colorado River has faced difficulty meeting demands. Following the region’s rapid population increase in the early twentieth century, the river’s border states established the Colorado River Compact of 1922. This Compact sought to make an equitable division of the Basin, contractually binding the states to share and apportion the water. The Compact created an Upper Basin and Lower Basin. The Upper Basin is comprised of the parts of Arizona, Colorado, New Mexico, Utah, and Wyoming from which the river’s water naturally drains into the System above Lees Ferry in Marble Canyon, Arizona. The states comprising the Lower Basin are the parts of Arizona, California, Nevada, New Mexico, and Utah to which water drains naturally into the Colorado River System below Lees Ferry.

The Colorado River Compact is the cornerstone of a system known as the “ Law of the River .” The Law of the River is comprised of an international treaty between the United States and Mexico, two interstate compacts like the Compact, the historic 1964 U.S. Supreme Court decision of Arizona v. California , and several dozen federal statutes and regulations. The effects of climate change will impact the delicate supply and demand balance over the next fifty years, making it difficult for Upper Basin states to meet their contractual obligations, and, therefore, putting an onus on the Lower Basin states.

Both the river and the Law of the River have entered a critical point in recent decades. The demand for water in the Basin has exceeded supply on an annual basis since the early-to-mid-2000s. Because most of the Basin's water supply comes from the Upper Basin, drought conditions in the Upper Basin impact water supply and resources in both the Upper and Lower Basins. Roughly 92 percent of the river’s natural flow comes from runoff upstream of Lees Ferry , but natural flows into this dividing point declined between 2000 and 2015 to levels lower than any observed over the past century and some of the lowest over the past 1,200 years, based on paleo records . Natural flows are the streamflow that would have occurred without the intervention of human activity, such as reservoirs and dams, and river diversion.

Climate change has led to higher temperatures and an increasingly arid region. Paired with population growth, the demand of water in the river has swelled while the supply has steadily decreased. When the Colorado River Compact was created, both the Upper and Lower Basins were allotted 7.5 million acre-feet (maf) of consumptive use per year . At the time, the average annual flow in the Upper Basin was around 18.0 maf. However, the average flow into the river in the early twentieth century was an unusually wet period , whereas the average flow into the river in the following one-hundred year period was roughly 16.4 maf . Between 2000 and 2015, the average natural flow in the Upper Basin dropped to around 14.8 maf.

The Colorado River Basin has been described as “a river no more” with significant flows consistently failing to reach the river's delta in the Gulf of California for half a century. Even though rainfall and snowpack high in the Rocky Mountains were at near-normal levels in 2021 , the dry soil and plants, shocked by the consistent intense heat, absorbed most of the water. Accordingly, inflows to Lake Powell were around 25 percent of their usual amount.

Most of the runoff leading into Lees Ferry comes from melting snowpack, but due to the warming and drying of the region, snowpack levels will decrease. While it is difficult to project future precipitation levels and patterns, a settled finding is that would-be snowstorms will become rainstorms , contributing to decreasing snowpack levels. It is not only humans who will feel the impact of decreased snowpack; higher temperatures and lower water levels will severely impact the demand to keep necessary stream flows critical for fish and other aquatic species.

The Impact of Climate Change on Fish Population Levels

Fish species native to the Upper Basin were historically more numerous, longer-living, larger, and their habitats were farther reaching than they are today. Climate change has led to milder winters, earlier spring warming, and warmer summers in rivers. Fish are uniquely sensitive to fluctuations in temperature and precipitation because of their confinement to aquatic habitats, and their ability to move to alternative habitats are generally more restricted than terrestrial species . An increase in the severity and frequency of droughts will lead to increased aridity and reduced streamflow in the region, creating a catastrophic impact on local biodiversity.

As habitats grow smaller due to increasingly arid climates, species’ ranges are changing, causing the establishment or expansion of nonnative species. For example, the humpback chub evolved in its Basin habitat without any native predators . Therefore, it is not well-adapted to living with nonnative species that have been introduced to its habitats because of climate change. The impact of ongoing climate change is projected to continue, leading to an increased risk of nonnative fish migration among humpback chub populations. As a species maladapted to this possibility, the potential establishment of nonnative species will exacerbate negative interactions between the humpback chub and nonnative species such as the smallmouth bass.

Conservation of the humpback chub is coordinated by three principal programs that consist of stakeholders from federal, state, private, and tribal interests. The issue, however, is that these recovery efforts are not legally binding or mandatory, but rather just statements of intention . Additionally, the recovery plans are inflexible and unable to be adapted as new data research becomes available.

While it’s impossible to predict the exact impact climate change may have on species like the humpback chub, it will likely reduce reproduction in humpback chub populations. So, what is the solution? Numerous ideas have been proposed, from new water apportionment schemes to water bank systems. Whatever the answer, it will have to be both a national and international effort. The Colorado River Basin’s depleting water levels impact more than those who live alongside the river, and whatever is decided upon will have to include the interests of a diverse range of local, interstate, and international policies, economies, and politics.

Perhaps the most viable option to save the river is to reevaluate the agreed-upon Basin allotments from the original Compact and declare new apportionment levels. It is difficult to say with certainty what the impact of climate change will be on the region; however, it is clear that the amount of available water in the Basins will only continue to decrease. While the Law of the River has a history of adjustment and has been updated as needed, future efforts will require coordination on a local, federal, and international scale, which is a daunting task. Adjusting the apportionment of the Basins will allow each state to share the burden equally while ensuring the continuation of their water rights. It will also force states to explore more sustainable sources of power such as wind or solar energy. The unfortunate truth is that the river can no longer be considered a renewable resource, and as the planet continues to experience the effects of climate change, we need to ensure the Colorado River doesn’t become another casualty. After all, to preserve this hallmark of the American West is to preserve its unparalleled cultural, historical, and scientific value.

SOURCES

Abrahm Lustgarten, 40 Million People Rely on the Colorado River. It’s Drying Up Fast. , ProPublica (Aug. 27, 2021), https://www.propublica.org/article/40-million-people-rely-on-the-colorado-river-its-drying-up-fast (last visited Jan. 25, 2022).

Arizona v. California, 376 U.S. 340, 84 S. Ct. 755 (1964).

Climate Change in the Colorado River: What We Already Know , Colo. River Research Grp. (Oct. 2016), http://www.riversimulator.org/Resources/Academic/CRRG/2016.10.ClimateChangeColoradoRiverWhatWeAlreadyKnow.pdf

Drought in the Colorado River Basin , U.S. Dep’t of the Interior, https://www.doi.gov/water/owdi.cr.drought/en/ (last visited Feb. 8, 2022).

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Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012).

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Cannabis Cultivation and Water Use: The Push for Sustainability

Wed, 27 Apr 2022 17:15:03 GMT

Environmental problems–such as water resource depletion–are surfacing faster than ever before. Marijuana is a water-intensive crop that will require built-in water sustainability practices to avoid scrutiny as water shortage in the West becomes increasingly dire. Water scarcity is an increasing problem, and the State of Colorado is not immune. It is no secret that in every sector, global sustainability, including water reduction, is of increasing importance. We are likely not far from intense federal, state, and municipal sustainability requirements for every industry.

The Problem: Rapid Growth of the Cannabis Industry and Lack of Water Regulation

The marijuana industry is rapidly growing and evolving. Although marijuana is still federally illegal, the prohibition is quickly diminishing. Today, the recreational use of marijuana is legal in eighteen states with medical use is legal in thirty-seven states. After passing Amendment 64 in 2012, legalizing marijuana use at the state level, Colorado quickly became a pioneer in the navigation of all things cannabis. However, Colorado’s original marijuana rules and regulations were silent concerning water rights, permits, and regulations.

Unfortunately, the growth of the marijuana industry has a high potential for a large water footprint. Cannabis cultivation (as with other agricultural productions) creates harmful agricultural runoff , and indoor cannabis cultivation places more pressure on the existing wastewater treatments of municipalities. Thus, there is an increasing need for management and regulation of the water consumption used for marijuana cultivation. Legal doctrines and administrative agencies need to step up to the plate to balance the relationship between water and marijuana legalization. The development of an environmentally sustainable cannabis industry is reliant on the creation of new water use regulations and policies.

While the push for regulation of the marijuana industry’s water use is stronger than ever before, the application of current state water laws to the marijuana industry presents numerous complications. For example, Colorado uses the prior appropriation doctrine to allocate water rights, which creates issues when faced with regulating marijuana cultivation. In Colorado, most of the water for marijuana cultivation comes from existing water rights, with many cultivators leasing water rights from an existing right holder. Under the prior appropriation system, water rights are allocated by priority of beneficial use, and the federal marijuana prohibition complicates the determination of whether a water use for marijuana cultivation constitutes beneficial use. Currently, due to marijuana’s status at the federal level, many cannabis cultivators are not authorized to use major water networks, which forces cultivators to use less sustainable irrigation methods. However, this issue could be mitigated if the cannabis industry has access to these water networks, instead of having to rely on groundwater resources. Further, since the majority of marijuana cultivation in Colorado takes place indoors, there is an increased demand on municipal water. This presents problems of downstream water availability and has harmful watershed impacts.

States like Colorado need to clarify and enforce water laws in the marijuana industry before opponents of state marijuana legalization begin to use these issues to their advantage. In order for the marijuana industry to continue to thrive, the ambiguities regarding the relationship of water law doctrines and marijuana laws must be resolved. It is necessary for states supporting marijuana legalization to create a regulatory framework that promotes water equitability and sustainability. The demands of marijuana cultivation are unique, and states must find a solution before cultivators return to the black market. The return of marijuana cultivators to the black market poses an even greater environmental cost because of the complete lack of regulation. Thus, it is important for these states, and specifically their regulatory agencies, to find a balance between water and marijuana cultivation in order to avoid both an enforcement and environmental crisis.

The Efforts to Find a Solution

Fortunately, it appears Colorado has started taking steps in the right direction. For example, the Code of Colorado Regulations authorizes the use of reclaimed water for the cultivation of regulated marijuana, as long as the use follows the Reclaimed Water Control Regulations and is approved by the state and local water provider. Additionally, the Colorado department of Public Health and Environment (“ CDPHE ”) supports researching ways for the cannabis industry to reduce its harmful environmental impacts. The CDPHE believes there is potential for the industry to be an eco-friendly industry that will continue to grow for generations to come. The CDPHE website provides a link to the New Environmental Sustainability Report from the National Cannabis Industry Association (“ NCIA ”). Thus, it is clear that Colorado recognizes the need for sustainability and compatibility with environmental regulations within the cannabis industry.

In October of 2020, the NCIA’s environmental committee produced a technical report (“ Report ") covering the relationship between the cannabis industry and its environmental impacts. The Report focuses on best management practices for environmental sustainability in the cannabis industry and provides information about environmental policy. The NCIA believes the cannabis industry has the potential to become a leader in environmental sustainability.

The NCIA suggests that one of the main focuses of the cannabis industry should be decreasing water usage. The NCIA states, “[i]ndustry best practices for water use are intended to continuously look for opportunities to reduce water needs while minimizing impacts to local water quality.” The Report includes a thorough analysis of each of the best management practices suggested by the NCIA, which includes, but is not limited to, the improvement of irrigation techniques, the use of water reservoirs, and the proper use of fertilizer.

The State is not alone in abating the harmful environmental impacts created by the cannabis industry. In October of 2020, the Denver Environmental Health Cannabis Sustainability Work Group created the Cannabis Environmental Best Management Practices Guide (“ Guide ”), which provides guidance to the local cannabis industry for implementing sustainable practices. The third section of the Guide focuses on water sustainability practices, specifically acknowledging how to manage the input and output of water when cultivating marijuana. The Guide recognizes water as the key component of any successful marijuana cultivation system.

Within the City of Denver and other surrounding areas, the water resources for indoor marijuana cultivation come from the municipal water distribution system. Although these issues are not specific to the cannabis industry alone, consumptive water use and water quality are typical concerns for indoor cannabis cultivation. To address these problems, the Guide suggests proactive operational efficiency and monitoring practices.

There are many benefits that come hand-in-hand with the integration of such technologies and suitable practices. For example, water-use efficiency measures have the potential to create cost benefits and decrease consumable use. Water-use efficiency techniques can also help to abate the water availability problem of municipalities in Colorado. If cultivators practice wastewater management, there is a high potential for a decrease in the current watershed impacts.

The Guide also provides environmentally friendly suggestions for how to improve multiple aspects of water use during cultivation. These “best practices” include water filtration and purification, irrigation methods and automation, water recycling, and more. Water filtration leads to low levels of waste. The “drip” irrigation method is also highly efficient at reducing water waste as it allows cultivators to provide each plant with precise amounts of water. Another option for decreasing water usage is for cultivation operations to implement methods for water-recycling. The Guide states that “[v]irtually all excess water runoff and water vapor can be captured and delivered back to the beginning of the watering process,” and encourages cultivation facilities to avoid single uses of water. Water-recycling can provide cultivators with a large amount of the water necessary for future watering cycles, thereby promoting water conservation.

A Proposed Solution: The Push for More Regulation

The cannabis industry presents numerous public policy benefits, and there is ample support for expanding the marijuana industry, especially in Colorado. However, the amount of water resources used to support marijuana cultivation casts a negative light on the industry. To prevent opponents of marijuana legalization from using the industry’s water footprint as fodder to continue the federal marijuana prohibition, it is important for the regulated cannabis industry to find a way to reduce water use through best management technologies. Although the CDPHE, NCIA, and the Cannabis Sustainability Work Group have started to work through this pressing issue, the regulated cannabis market has much more potential to promote multiple environmental protections. Instead of simply providing suggested guidelines to cultivators, state and local agencies need to adopt enforceable regulations for cannabis cultivators’ water use. Cultivators should be required to show the methods implemented to decrease water usage, especially considering the potential water conservation that accompanies reclamation and recycling.

In an already heavily regulated industry, it is important for state and local agencies to initiate regulation of not only the products being sold to the public, but also the processes that are used to produce these products. Another solution to abate the problem could be the use of permits to grant cultivators access to major water networks, thereby eliminating the need to rely on groundwater or municipal water resources. A cap on the amount of water granted to the cultivators would allow state and local agencies to control the total water use of the industry. Not only will more regulation help to conserve the arguably most important resource on our planet–water–but cannabis companies that elect to use environmentally sustainable practices are likely to be more successful in the long-term. The NCIA could not have said it better: “This fast-growing and highly regulated industry (at the state level) is poised to lead on evolving business challenges, including the adoption of environmentally sound business practices that demonstrate to the broader agriculture sector that comprehensive environmental sustainability is achievable.”

SOURCES

Colo. Code Regs. § 3-330(A)(2).

Ryan B. Stoa, Weed and Water: Regulating Legal Marijuana , 67 Hastings L.J. 565 (2016).

Colo. Dep’t of Pub. Health & Env’t, https://cdphe.colorado.gov/greening-the-cannabis-industry (last visited Feb. 11, 2022).

Nat’l Cannabis Indus. Ass’n, Environmental Sustainability in the Cannabis Industry: Impacts, Best Management Practices, and Policy Considerations , (Oct. 2020), https://thecannabisindustry.org/wp-content/uploads/2020/11/NCIA-Environmental-Policy-BMP-October-17-final.pdf.

Denver Env’t Health Cannabis Sustainability Work Grp., Cannabis Environmental Best Management Practices Guide , (Oct. 2020), https://www.denvergov.org/files/assets/public/climate-action/documents/cannabis-bmp-update-2020.pdf.

Will Yakowicz, Where Is Cannabis Legal? A Guide To All 50 States , Forbes (Jan. 10, 2022), https://www.forbes.com/sites/willyakowicz/2022/01/10/where-is-cannabis-legal-a-guide-to-all-50-states/?sh=556f3259d19b.

Denver Water's Lead Pipe Variance: The Past, Present, and Future of Water Justice in Denver's Aging Infrastructure

Sun, 06 Mar 2022 23:17:36 GMT

“Removing lead at its source by removing lead service lines may be the heart of the program, but communication, outreach and education is the foundation on which it is all built[.]”

– Meg Trubee, Communications, Outreach, and Education Manager for Denver Water's LRPP.

Colorado is known for its clear blue mountain lakes, as popularized by the late John Denver in his song “Rocky Mountain High.” People come to Colorado every year to hike up to Bear Lake and see the towering snow caps slowly trickle down into the perfect blue lake, or to drink from one of the many small high-elevation seasonal lakes that are as clear as glass and seemingly more of a mirror than a body of water. Yet, on their journey to the pristine Rocky Mountain National Park, tourists first fly into Denver International Airport and drive down I-70 through Denver and South Adams County. There, our tourists pass hundreds of thousands of homes with municipal infrastructure delivering that same pure Colorado mountain water, only by now, it is potentially contaminated by a widely known poison – lead.

Denver Water’s Lead and Copper Rule Variance

Denver Water–the municipal water provider for the greater Denver Metropolitan Area–applied for a variance from the Environmental Protection Agency's (EPA) Lead and Copper Rule ( LCR ). The variance received approval on December 16, 2019. As a result, rather than engaging in Optimal Corrosion Control Treatment ( OCCT ) by treating water with orthophosphates (which reduces the likelihood of lead contamination by 90%), Denver Water is conducting lead service line replacements. This means replacing any lead pipes, or pipes made of copper and lead solder, with safer materials such as steel for water delivery. This project has been in progress for three years, and with more than 4,600 pipes already replaced and another decade left in the program, Denver Water’s progress has been remarkable.

As a part of the variance, Denver Water launched an initiative to focus on historically underserved neighborhoods, usually communities of color. It should be noted that Denver, along with a majority of the U.S., has a long history of environmental racism . The city has a strong history of redlining neighborhoods of color. Redlining is a practice in which loans were systematically denied to residents of ‘redlined’ neighborhoods on the basis of perceived risk. The Homeowner’s Loan Corporation (HOLC), established by the federal government in 1933, created the redlining system. It advised which neighborhoods lenders should invest money into through loans for homebuyers or owners. The HOLC designated neighborhoods by risk level, a coded way of evaluating neighborhoods by racial and ethnic make-up. The absence of community investment accompanied practices denying residents of those neighborhoods access to other neighborhoods considered ‘safer’ for investment, otherwise known as ‘greenlined’ spaces. Redlining is well known as a federal system of segregation, which many U.S. cities still experience the ramifications of to this day.

Addressing Injustice Through Water Infrastructure

Groundwork U.S.A. is an organization committed to education and action around environmental justice by better preparing communities to weather the impacts of climate change. Denver is one of the cities with which the organization works, and in doing so, Groundwork Denver created a detailed redlining map of the city. Denver’s history of redlining translates to low-income communities and communities of color living in neighborhoods with disproportionate environmental dangers. These dangers range from living closest to polluting factories, living on land contaminated with chemicals from mustard gas manufacturing, and living in built environments not equipped with infrastructure to handle the effects of climate change.

Denver Water’s variance sets out in part to address the disproportionate impacts these communities face. Though Denver Water must replace all lead service lines in their entire area of service, they are prioritizing construction in historically underserved neighborhoods first. For instance, parts of Baker, Barnum, City Park, Whittier, Cole, and Clayton have all been partially, if not fully, completed. The neighborhoods of Elyria Swansea and Globeville are undergoing (or will soon undergo) Lead Service Line Replacements (LSLR) as well. Together, these are all neighborhoods that Groundwork Denver has identified as historically redlined and at risk for compounding health issues due to the mixture of climate change and environmental racism. Though those neighborhoods are still experiencing other forms of environmental racism such as hostile built environments, Denver Water is doing what is within its power to reduce and remove lead risk to those neighborhoods. This is a first step in the right direction towards addressing such environmental injustice.

Another important way that Denver Water is leading the Environmental Justice front is by engaging in ‘Full LSLR.’ This makes Denver one of only a few cities in the country to undergo this process. Water service lines are made up of two parts. The first is the public service line that runs under the street and is maintained by the utility. The second part is the privately owned portion of the line which connects an individual house to the public service line.

Traditionally, cities or utilities that set out to conduct lead service line replacements would engage in ‘Partial LSLR.’ Though they would replace the public portion of the water service line, it would be up to the individual owner of a property to replace the private portion. These are far more common because the Federal Lead and Copper Rule–the governing legislation regarding lead pipes first promulgated in 1991–only requires partial LSLR. Though this may seem like progress, even if it is not ideal, the reality is that partial LSLRs are often more dangerous than leaving both portions of the line alone. Lead service line replacement construction often disturbs the private portion of the line, and such agitation significantly increases the risk of the pipes shedding lead into water. Had the construction never taken place, the pipe would not have been agitated.

Partial LSLR frequently negatively impacts communities of color and low-income communities the most. This process can be quite expensive, putting a larger burden on these communities. Furthermore, communities of color and low-income communities are far more likely to be renters. This means that they do not have the ability to hire a private contractor if their landlord refuses to pay for the private replacement, let alone be able to pay for it themselves. If an individual is a homeowner, those in underserved communities are still far less likely to have the resources to pay a private contractor. In total, partial LSLRs impact underserved communities far more disproportionately than their more affluent neighbors and are simply an inequitable solution.

Full LSLR programs abate these issues. As opposed to ‘Partial LSLR’, ‘Full LSLR’ involves a utility company replacing both the private and public portions of the utility line. When a utility company such as Denver Water sets out to replace all lead service lines in their service area–including the private portions of the line–the utility circumvents inequitable distribution of line replacements. It ensures that no matter socio-economic status, all customers of the utility company will have access to clean water after the replacement. Denver Water’s variance, granting a fifteen year period to replace 64,000–84,000 lead service lines in its service area, is the second biggest full LSLR to date. Detroit, Michigan is the only service area with a larger LSLR goal, with a plan currently in development for 125,000 lines replaced . The implications of Denver Water’s variance are significant and should set an example for cities around the country.

The Pitcher-Filter Program

In the meantime, for those households who have lead service lines and must wait longer to have their service lines replaced, the city is providing pitcher filters with six-month replacement filters. The filters are of a quality high enough to filter out lead and are meant to mitigate any potential lead-poisoning as the fifteen-year LSLR is implemented.

Through four quarterly reports published in 2020, Denver Water addressed the effectiveness of the filter program along with issues associated with distribution. The Lead Reduction Program (LRP) Quarterly Report for Q1 2020 only polled 3,635 households. However, polling ramped up dramatically in the second quarter , with 88,064 households polled. This quarter represents the significant majority of households, with numbers falling in Q3 and Q4 . Consistently through each quarter, Denver Water found that around 1% of filters distributed to households were returned. Though there are a variety of explanations for such returns (such as empty units or incorrect addresses), any return whatsoever still presents a significant problem for Denver Water. What this means is that households who are at risk of lead poisoning are not getting the protection they need. On the whole, however, the distribution program has been a success. In the second quarter, there were 1,689 filters returned to Denver Water. Out of the 88,064 filters distributed, this is something that Denver Water should be proud of.

Major pillars of environmental justice are the values of community input, outreach, and education. As a part of the variance, Denver Water is conducting outreach plans to accompany the distribution of filters. Informational booklets were distributed to every house that received a filter or has been identified as a lead risk. Two public comment periods opened Denver Water up to feedback and criticism of the plan. Notably, Denver Water also engaged in grassroots outreach. According to the Q1 2020 report, Denver Water “[u]tilized the LRP prioritization model to identify tiered priorities for neighborhood, community, and business outreach, which includes a visual presentation to provide an overview of the program with neighborhood specific information….” Globeville, for example, was identified as the first target of grassroots community outreach.

The COVID-19 pandemic has made grassroots community outreach difficult. Presentations were cancelled due to quarantine requirements, and grassroots efforts (originally planned for in-person) were cut short or never implemented. The pandemic has also made data-collection difficult. The Q1 2020 report set out to collect data on the efficacy of the filter program. Samples had to be collected by going in-person to residences. From the beginning of these studies, Denver Water found that nine of twenty-six polled households had not opened or assembled their filter kits. Two distributed filters resulted in positive lead tests. Despite the urgency, the study closed before completion due to the impossibility of in-house visits during the height of the pandemic.

As restrictions begin to lift, we will likely see more data come out about the effectiveness of the filter program. As Denver Water more accurately identifies the strengths and weaknesses of the program, there may be renewed efforts towards filter education and outreach. To do so, Denver Water could consider additional filtering while LSLR is ongoing, as well as other solutions that have not yet been brought to the table. It is encouraging that over the next twelve or so years, Denver Water will continue to conduct full LSLR in households throughout its entire service area. The variance only mandated quarterly reports through 2020, which has led to Denver Water releasing reports on a semi-annual basis thereafter. Nonetheless, the success of the LRP could mean an increase in consumer protection from lead around the country. All eyes will be on Denver Water and its focus on environmental justice as a driving force of the program, setting a positive precedent for other municipalities to follow.

SOURCES

Community and Utility Efforts to Replace Lead Service Lines, Envtl. Def. Fund Health, (Nov. 20, 2020), https://www.edf.org/health/recognizing-community-efforts-replace-lsl.

Denver Water, Denver Water Lead Reduction Program Quarterly Report – Q1 2020, (Apr. 10, 2020), https://www.denverwater.org/sites/default/files/lead-reduction-program-quarterly-report-q1-2020.pdf.

Denver Water, Executive Summary of the Lead Reduction Program Plan, (Sept. 2019), https://www.epa.gov/dwreginfo/optimal-corrosion-control-treatment-evaluation-technical-recommendations.

EPA Office of Water, Drinking Water Requirements for States and Public Water Systems: Lead and Copper Rule, Drinking Water Rules (Mar. 31, 2021), https://www.epa.gov/dwreginfo/lead-and-copper-rule#rule-summary.

EPA Office of Water, Optimal Corrosion Control Treatment Evaluation Technical Recommendations, Drinking Water Rules (Mar. 31, 2021), https://www.epa.gov/dwreginfo/optimal-corrosion-control-treatment-evaluation-technical-recommendations.

Groundwork Denver, Climate Safe Neighborhoods, https://gwmke.maps.arcgis.com/apps/Cascade/index.html?appid=3661f4dbe77e45c9951b4879c7401986 (last visited Nov. 20, 2021).

Joe Salas, Removing barriers to talking about the Lead Reduction Program , Denver Water: TAP Home (Sept. 10, 2020), https://www.denverwater.org/tap/removing-barriers-to-talking-about-the-lead-reduction-program (quoting Meg Trubee, communications, outreach, and education manager for Denver Water’s LRPP).

Pandit, Tilak, Old, toxic, rusty, lead pipes on construction site , Dreamstime, https://www.dreamstime.com/old-toxic-rusty-lead-pipes-construction-site-image233903159 (last visited Mar. 1, 2022).

Tom Neltner, A closer look at the environmental justice implications of EPA’s proposed lead in water rule, Envtl. Def. Fund Health, (Feb. 4, 2020), http://blogs.edf.org/health/2020/02/04/a-closer-look-environmental-justice-implications-of-epas-proposed-lcr/#_ftn4.

Remembering the Honorable Gregory J. Hobbs, Jr.

Wed, 16 Feb 2022 01:50:21 GMT

This eulogy was originally delivered at the Colorado Water Congress Annual Convention

Hyatt Regency

Aurora-Denver Conference Center

January 27, 2022

When I learned of the passing of the Honorable Gregory J. Hobbs, Jr., my dear friend and mentor, I expected that I would have coherent thoughts about who he was. Instead, what happened was I was overwhelmed with these snippets of him, these vignettes, fragments of memories, like pieces of a puzzle.

Take for example, my interview for my clerkship. I already knew The Good Judge due to my role as Editor-In-Chief of DU’s Water Law Review and we were finalizing the editing of an article of his. He mentioned to me that the process was not unlike his process of working on opinions with his clerks and did I want to apply to clerk for him. He interviewed me at Pint Pub’s over a burger and a beer and offered me my clerkship on the porch as we were walking out.

As his clerk, I remember that he was once—and only once--so close to being late for oral argument that Justice Bender, robes flying, dashed into chambers, breathlessly inquiring about the judge’s whereabouts and we assured him the judge was on his way, having, honestly, no idea where he was. By the time we heard the “ding” of the elevator and the unmistakable chang-chang-chang of change in his pocket as he barreled down the hall, my co-clerks and I had assembled all his briefs and notes for that morning into an accordion file folder and had his robe out so that he could jam his arms in the robe while swooping the files up under his arm, heading to the back way to the bench, without a word said among any of us--except, as he took off, a look over his shoulder combined with perfectly mouthed “thank you,” and that trademarked rascally look on his face.

We were his pit crew. It was an unexpected and ridiculous amount of fun.

There was the personal too, like what a joy he was when he officiated my husband’s and my wedding. And how much all my friends loved hanging out with The Good Judge and Bobbie over the course of that weekend, remarking on how cool the two of them were and how stunned they were that someone so utterly down to earth was a Colorado Supreme Court Justice , with the awe that the station elicited but doubled because, well, he was Greg.

Right when the Colorado Supreme Court began its move into the new Justice Center, he invited me to his new chambers and for a tour. The facilities were still under construction—at the punch list stage where there were only the smaller things left to do and only a handful of construction workers left to do it. He knew several of them by name and stopped to introduce me. One of them waved his friends over and said, “this is who I was telling you about. You know, he’s one of the people who sits up there ,” and he pointed to the bench, with a big dose of reverence and not a little disbelief that one of those people who should be so inaccessible was just so accessible.

Greg was on the bench for nineteen years. Every year, he and Bobbie would invite his great and growing clerks group, which by his retirement was a group nearly sixty strong, to their mountain cabin for the annual Clerks Picnic. He would kick off the email invitation with “Please join Bobbie and me and each other for our annual cabin picnic.” That “each other” bit was so him—ensuring that we knew that we were a community, that we clerks were hosting too, and he and Bobbie had simply provided the venue.

We would play horseshoes while we were there and he’d be doing the host thing, cooking with Bobbie and hanging out with clerks and clerk wives and husbands and babies and kiddos—the judge, everywhere at once, that magical way that only he could be. And then he’d come down the hill to the horseshoe pit all shucks and can I play and proceed to wipe out whoever was reigning champ at the time and then mop the floor with the rest of us, throwing ringer after ringer. And then off he’d go, so unassuming, and turn some more burgers on the grill. There was a home field advantage, for sure, but he was also just good, eye on the prize, with that focus of his that made him so capable of achieving great things, all the while making it look like it weren’t no thang.

The tiniest snapshot but the one that really tore me up was that rascally smile he’d have when he’d come enthusiastically up to me at a chance meeting at, say a conference, and say to me with that unmistakable cadence of his: “Hey Amy.” You know that smile of his—the one that said in no uncertain terms that he had just solemnly sworn that he was up to no good.

There were of course thoughts of redwinged blackbirds (his favorite, the harbingers of spring!), and his lyricism, his appreciation for the Treaty of Guadalupe Hidalgo, and the other little pieces that flew in and out of view.

As I was processing these polaroids of mine, I was also devouring remembrances from others, thoughts about things that made The Good Judge The Good Judge.

Like that of Jon Asher , the Executive Director of Colorado Legal Services, who said so beautifully, “I would only add that he was warm, humble, and unassuming. I am certain that Greg very reluctantly would acknowledge that he made a difference--and that things are better and that progress has been made--because of his efforts to advance, not just Access to Justice, but true Justice. [B]ut [he would also note that] that there still is much to do and further improvements to be made, and that, in part, is why he made such a difference.”

I was told that Justice Boatwright said that the one thing he reminded himself every day on the bench was that he needed to love the job as much as Greg did. It struck me as such a perfect way to sum up Greg’s relationship with the bench. He loved that job every day, never taking a day of it for granted, down to his very last day.

And of course we clerks shared remembrances on what has become quite an email chain, replete with beautiful tributes to his iconoclasm, integrity, joy, wit, wisdom, mentorship.

Once I sorted all my pieces, and layered in those of others, these absolutely beautiful themes emerged: joy, justice, good trouble, good naturedness, integrity, ingenuity, boundlessness. And love. So many people reflected on his capacity for love, especially for his family. I want to take a minute to acknowledge how much we—all of us here who called him friend and colleague—borrowed him from his family. Bobbie, Dan, Emily, thank you.

I miss him. I miss his friendship, his quick wit and wisdom, his sartorial style, his guidance, his integrity, and his joyful, joyful spirit. But I feel as though he would have been riven if he thought we were spending time being sad. He would have wanted us to celebrate. To dance. To pursue justice. To work hard and help people. To hike and float and fish and picnic. To throw horseshoes. To root for the Broncos. To eat Mexican food at his favorite restaurant and love every bite—and the people who cook and serve it. To write. To speak. To listen to history. To honor those we disagree with. To fiercely love the special people around us. To milk every hour of every day. To carry on his tireless enthusiasm for and dedication to the people of Colorado.

So, in the way that he guided us before, listen now. He’s still telling us, that grin on his face, “let’s go do big things.”

Justice Hobbs: A Supreme Educator

Mon, 24 Jan 2022 15:54:56 GMT

"May your boots carry you on the long stride. May the mountains be your stronghold."

Colorado will remember the late Justice Gregory Hobbs as stellar in all of the roles he played throughout his life and legal career, particularly as the leading authority on Colorado water law.

As a former student, I will remember Justice Hobbs as a kind and curious educator.

I took Justice Hobbs’ course focusing on Colorado water court, which he co-taught with then-Water Referee Susan Ryan, as he settled into his new role as the Distinguished Jurist in Residence at the University of Denver’s Sturm College of Law and Co-Director of the school’s Environmental & Natural Resources Law Program. Though the class was long and took place in the evening, Justice Hobbs always showed up with a kind smile and pep in his voice. His passion for water law–and for water as a resource, generally–shined through as he taught the course. He introduced us to important figures in Colorado’s water law world, arranging for guest speakers like Chief Judge James Hartmann, who at the time was the water judge for Water Division One. Even our overworked law student minds couldn’t help but engage with Justice Hobbs’ enthusiasm as he told the stories behind the most complex water law cases, somehow making 100-page opinions interesting.

On one class outing, Justice Hobbs proudly guided us through the Ralph L. Carr Colorado Judicial Center, where he did some of his most brilliant and impactful work as the Colorado Supreme Court’s resident expert on water law. He led us with giddy enthusiasm through the Judicial Learning Center, explaining the purpose and background of the exhibits and giving us an escape at a time when many of us were trapped in the seriousness that law school tends to impart.

In what I can only deem to be the best luck I’ve ever had, Justice Hobbs volunteered his time to serve as my professional mentor. We would meet for lunch at a café near the law school. Over huevos rancheros, he spoke frequently of his family, of whom he was exceedingly proud. He was gracious with his time and generous in his advice.

Justice Hobbs’ curiosity bubbled over into all areas of his life. He captured beauty and crafted prose from even the most ordinary scenes and circumstances. He was quick to send students thoughtful words of congratulations to mark graduation. With the bar impending, he sent us words of encouragement, leaving his students with the reminder that no matter what, we still have Colorado: “May your boots carry you on the long stride. May the mountains be your stronghold.”

Justice Hobbs was a natural educator, evidenced in part by his efforts in helping to found and support Water Education Colorado. He was adamant that Coloradoans have unfettered access to information on Colorado’s water-related history, doctrines, and rules. We have him to thank for publications like Headwaters magazine and the Citizen’s Guide to Colorado Water Law , which I still reference often in my practice.

Since learning that Justice Hobbs had passed, I have been thinking of how best to keep his momentum going, to make him proud as we face the issues that come with being the Headwaters State. The best way I can think of to honor such an extraordinary educator is to continue learning, as he always did, and above all to strive to be curious.

Greg Hobbs–A Great Teacher (In Addition to All the Other Things at Which He Excelled)

Fri, 21 Jan 2022 23:21:28 GMT

I t was late in the day when my office phone rang. I picked it up and Justice Greg Hobbs was on the line. After telling me about his latest outdoor adventure, he said he had a question for me: Was there any chance he could teach at Denver Law after he retired from the Court? As a dean, it is rare to get questions with such obvious answers. Of course!

On his retirement from the Court, Justice Hobbs had an incredible array of job prospects and projects he could choose from. But he knew exactly what he wanted for his next chapter. He wanted to teach the next generation of natural resource lawyers, and to do it at Denver Law.

You likely knew Justice Hobbs as a distinguished jurist. As a giant in water law and natural resources law. As a talented photographer, poet, and author. As a key participant in a vast number of civic endeavors. But what you might not have known about him was that he was, to his core, a teacher.

He has long had the heart of a teacher. As a younger man, he taught sixth grade at St. Paul’s Catholic School in New York, before serving in the Peace Corps. Every one of his clerks I spoke to said that he was one of the best teachers and mentors they had ever met.

So teaching was his obvious next step after leaving the bench. The only question was where. Not surprisingly, more than a few schools pursued him. Given his reputation, his expertise, and his extensive scholarly work, he would have a wide array of choices.

But it was Denver Law that drew him. He had long been a champion of–and regular presenter at–our Environmental and Natural Resources Law Program. He believed that a program like this, at a school like ours, was the perfect way to train the next generation of great natural resources lawyers and integrate them into our legal community.

So, he joined our community. He taught our students and created a whole new generation of fans of natural resources law (and of Professor Hobbs). He co-directed our ENRL Program alongside his friends, the late Fred Cheever, and Annecoos Wiersema, and grew its reputation immeasurably, helping to put it into the top 15 nationally.

Having Justice Hobbs at DU was a dream come true for him and for us. Our students and community benefited from his choice in a deep and lasting way. We are all honored that he chose us as the final chapter in his amazing career.

Justice Hobbs Eulogy

Mon, 20 Dec 2021 22:11:00 GMT

This is tough to write. I honestly thought I’d never have to say goodbye to Justice Hobbs. He always seemed invincible and full of unlimited energy. His professional accomplishments are many and great. Because others have already written about his achievements, I am focusing on what he meant to me both personally and professionally.

I first met Justice Hobbs when I was 25 and in my third year of law school. I got to know him through the Water Law Review at the University of Denver. For whatever reason, I was completely against doing a clerkship, but Justice Hobbs convinced me to interview with him. It was and still is my best interview experience. He welcomed me into his office, and we talked for at least an hour, which ended with his famous courthouse map tour and a clerkship offer.

From that day forward, he always treated me as an equal and he always took my call, even 15 years after my clerkship. My ideas were important to him, and my many questions were always answered. I very much enjoyed my clerkship and learned so much about how to treat people in the justice system. Justice Hobbs would often remind me that every case, no matter how seemingly unimportant, has real people involved with real problems who need a solution from the court. He would always strive to write clear opinions and to achieve consensus with the other Justices.

While clerking, Justice Hobbs asked me to help him start the pro bono recognition program for law firms and attorneys, which still exists today. He also included me in other community outreach, such as meeting with high school students, giving tours of the courthouse, and meeting his former clerks. By involving me in the community at the start of my legal career, I saw and appreciated the value of educating and mentoring others.

Following my clerkship, I went into private practice. Justice Hobbs and I would make it a point to meet once a month for lunch. He served as a friend, mentor, career sounding board, and sometimes, a reality check on my goals. I had the honor of Justice Hobbs officiating my wedding in 2011, but I did limit the numbers of poems he could read!

Five years ago, I was appointed to serve as the water referee for the Colorado River Basin and a magistrate judge. Justice Hobbs could not have been more excited for me. Even though I moved to the western slope of Colorado, we talked even more, and he loved to help me puzzle through water law issues. On the bench, I tried to model his wisdom, thorough legal analysis, and his treatment of everyone in the courtroom as important.

For three years, Justice Hobbs and I taught a class together at the University of Denver focused on water court practice. From that experience, I learned even more from him. His true passion for Colorado water law was remarkable and inspirational. He was equally passionate about educating students on the importance of water. I am truly grateful and honored that I could collaborate with him to teach the next generation of water lawyers.

I recently started a new professional journey, and I am so sad that I can’t tell him all about it. I know he would have great advice, perspective, and of course, humor. As I write this, I think of how Justice Hobbs’s kindness and respect for me when I was 25–long before I had proven anything to anyone–has made all the difference to me, both personally and professionally. I hope he knows how much he meant to me.

I wish I was a poet, so I could write a beautiful poem honoring Justice Hobbs. But I am not, so the best tribute I can think of is to follow his example and treat people with respect in all circumstances, enjoy the mountains and rivers of Colorado, and in his words – to keep my mouth shut, ears open, and get some good work done.

Because I can hear him laughing as I write this sentence, I’ll conclude with La Fiesta wisdom from Justice Hobbs – “there is nothing wrong with orange cheese and black coffee for lunch!”

DARK WATERS IN THE ROCKIES: Emerging Responses to Emerging Contaminants

Sun, 01 Nov 2020 18:40:42 GMT

In September of 2019 the Denver Post reported that testing had identified high levels of toxic “forever chemicals” in surface waters and groundwater wells along the Front Range. These contaminants were found in waters in El Paso County, Adams County, Arapahoe County, Denver County and Boulder County. Commonly referred to as “forever chemicals” because they persist in the environment and resist the natural processes that ordinarily break down contaminants, these substances came to public attention when it was discovered DuPont was dumping these chemical wastes from a Teflon plant in West Virginia. The chemicals contaminated an adjoining farm and tainted the water supply of a neighboring town. The ensuing legal battle resulted in settlements reaching into the hundreds of millions of dollars. Later, the incident became the subject of the feature film, Dark Waters (Focus Films 2019), starring Mark Ruffalo and Ann Hathaway. In this article, we will examine these chemicals and their impacts, as well as the responses from the federal governmental and Colorado’s state government.

THE CONTAMINANTS

“What if you drank it?”

“Drank it? You don’t.”

“What if you did?”

Per- and polyfluoroalkyl substances (“PFAS”) are a group of man-made chemicals . Two of the most well-known PFAS compounds are perfluorooctanoic acid (“PFOA”), which was used in making Teflon, and perfluorooctanesulfonic acid (“PFOS”), which was a key ingredient of Scotchgard. The PFAS group also includes thousands of other related chemicals. Used chiefly in consumer products like cookware, food packaging, and stain repellants, as well as in firefighting foams, these chemicals have been manufactured around the globe including in the United States since the 1940s.

Because of their stable chemical composition, PFAS chemicals are persistent in the environment. That is, they resist the environmental degradation processes that ordinarily break down contaminants over time. The major sources of PFAS in the environment are manufacturing, processing, and disposal facilities. Airports and military installations that use firefighting foam are also important sources of PFAS contamination. These chemicals can be released into the air, soil, and water – including sources of drinking water. In addition, because they do not break down in water they can be transported long distances and deposited in sediments far from their source of origin.

Studies have shown widespread human exposure to these chemicals. For instance, PFOA was detected in blood serum in 99% of the U.S. general population between 1999 and 2012. There are also documented adverse health effects from exposure to PFAS chemicals. An epidemiological study of the residents of Parkerburg, West Virginia, showed that exposure to PFOA through contaminated drinking water is associated with a number of conditions, including high cholesterol, thyroid disease, pregnancy-induced hypertension, ulcerative colitis, and kidney and testicular cancer. Some PFAS are demonstrated to be toxic to laboratory animals, causing reproductive, developmental, and systemic effects in laboratory tests. The EPA has found there is evidence that suggests PFOS and PFOA may cause cancer, and the World Health Organization has declared that PFOA is a possible human carcinogen.

The major industrial producers of PFOA and PFOS phased out the manufacture of these chemicals in the United States by 2015. But they are still prevalent in the environment due to their long residence time, importation in products, and some continuing uses. In addition, there are many other PFAS chemicals which are still in production and use throughout the United States. As a consequence, current data shows that there are over 1,500 impacted sites spread across 49 states.

THE NATIONAL RESPONSE

“Good luck in Washington.”

PFAS were not generally recognized as chemicals of concern at the time Congress enacted our major environmental laws. But by the late 1990’s, regulators began to inquire regarding the impacts of these emerging contaminants. Concerns about the effects of the chemicals continued to grow, and in 2012 the United States Environmental Protection Agency (“EPA”) added PFOA, PFOS, and a number of other PFAS compounds to the list of chemicals mandated for testing by public water systems.

In May of 2016, the EPA issued health advisories for PFOA and PFOS . These advisories noted the persistence of the chemicals and their propensity to bioaccumulate in the human body. They also examined the accumulated literature regarding the health consequences due to exposure to the chemicals. Based on the estimated risk posed to human health, the EPA set a limit of 70 parts per trillion (“ppt”) for lifetime exposure to PFOA and PFOS in drinking water. However, these health advisories were not enforceable regulations. Instead, they were designed to provide information to allow for better protection of human health and the environment.

In 2019, the EPA issued an action plan to outline further steps the agency intended to take to respond to the hazards posed by PFAS contamination. In the plan, the EPA announced its long-term goals to (1) evaluate the need for a formal, enforceable maximum contaminant level for PFOA and PFOS in drinking water; (2) seek the designation of PFOA and PFOS as “hazardous substances” under federal environmental laws; (3) develop groundwater cleanup recommendations for PFOA and PFOS at contaminated sites; and (4) develop additional information for the toxicity of certain other PFAS chemicals. The document also discussed EPA’s plans for public engagement and other steps such as the use of permit conditions and enforcement actions to reduce discharges of PFAS chemicals to waters. Overall, the plan represented a systemic approach aimed at reducing public exposure to PFOA and PFOS as well as proposing forward-looking steps to better understand and control the threat posed by other PFAS chemicals.

Later that same year, Congress joined the effort by enacting the “ PFAS Act of 2019 ” as part of the National Defense Authorization Act for Fiscal Year 2020. The Act directed the EPA to list 14 specific PFAS, as well as any additional PFAS that met certain criteria, as “toxic chemicals” under Section 313 of the Emergency Planning and Community Right-to-Know Act. Commonly referred to as the Toxic Release Inventory, this provision requires covered facilities which manufacture, process or otherwise use a listed toxic chemical to annually report to EPA environmental releases and other waste management activities relating to the toxic substance. In accordance with the new law, EPA published a list of 172 specific PFAS chemicals that now must be annually reported under the Toxic Release Inventory. EPA also adopted a rule prohibiting the manufacture or import of certain substances, including several specific PFAS chemicals, without prior EPA approval.

EPA’s most significant action, however, was to publish a notice in the Federal Register in March of 2020. In this notice, the agency acknowledged that PFOA and PFOS can cause adverse human health effects and that the presence of these chemicals in public drinking water is a serious health concern. It also acknowledged that regulating PFOA and PFOS would provide a meaningful opportunity to reduce these health risks. But instead of proposing enforceable regulations to limit the levels of PFAS in our drinking water, the EPA announced it was making a “preliminary determination to regulate PFOA and PFOS with a [National Primary Drinking Water Regulation] after evaluating health, occurrence, and other related information[.]” That is, the EPA announced it had made a preliminary decision that at some point in the future it would regulate PFOA and PFOS through an enforceable drinking water standard – but that time was not now. Instead, the agency stated that, for now, it would solicit additional comments regarding the analysis it had already performed of the existing data and whether there was additional data it should consider. This implies several years of additional regulatory delay before the EPA actually takes action to propose enforceable limits for the PFAS that are in the nation’s drinking water. As such, the EPA’s latest move appears to be a step backwards from the course of action envisioned in its 2019 action plan.

THE COLORADO RESPONSE

“We protect us. We do.”

Colorado is one of the handful of states that has acted to take steps on its own to address the emerging threat of PFAS contamination. The problem gained attention within the state when testing near Peterson Air Force Base in Colorado Springs revealed that PFAS chemicals had tainted the drinking water supply of 80,000 people . The contamination reportedly came from the use of firefighting foams which contained PFAS chemicals. The contaminants entered the Fountain Creek watershed upgradient of the towns of Widefield, Fountain, and Security and impacted the wells supplying the local water district. At one well, data showed contaminants at 1,370 ppt. Further testing at Peterson Air Force base showed PFAS in the groundwater at levels up to 88,000 ppt – more than 1,250 times higher than EPA’s health advisory limit of 70 ppt. Additional investigation also identified a number of other air force bases, fire stations, and industrial sites across the state that were likewise impacted by PFAS.

In response, the Colorado Legislature enacted the Firefighting Foams and Personal Protective Equipment Control Act to ban the use of firefighting foams containing PFAS during training activities and to phase out the future use or sale of such foams in the State of Colorado. From a regulatory standpoint, the Colorado Department of Public Health and Environment (“CDPHE”) adopted a groundwater quality standard of 70 ppt for combined PFOA and PFOS at the impacted area near Colorado Springs .

CDPHE also put forth an action plan which aimed to limit public exposure to PFAS chemicals, provide for mitigation and cleanup of contaminated sites, conduct health studies, improve the state’s capacity for testing for PFAS, set state-level limits for PFAS in drinking water and surface waters and groundwater, implement the new Act regarding the use of firefighting foams and a number of additional objectives. Along these lines, Colorado regulations now list PFOA and PFOS as hazardous waste constituents , meaning they must be accounted for as hazardous wastes in ongoing and future remedial actions. In addition, the Colorado Water Quality Control Commission recently adopted a new policy for the protection of drinking water sources which essentially adopts EPA’s 70 ppt health advisory limit as a water quality standard for permitted discharges and for use in cleanup actions for drinking water sources contaminated by PFAS.

Other states are likewise adopting standards for PFAS chemicals, including New York , Massachusetts , Michigan , New Jersey , Illinois and others. In short, Colorado and many other states are moving diligently to take the actions that EPA has not.

CONCLUSION

“The whole world needs to know.”

The emergence of PFAS as pollutants of concern over the past two decades has presented a myriad of challenges. Our eyes have been opened to a hazard that threatens the health of millions of Americans who have PFAS chemicals in their bloodstreams and in their drinking water. The initial federal response provided critical awareness and guidance as to the threat. But the EPA has since neglected to provide an enforceable mechanism to ensure safe drinking water. In light of the failure of effective leadership from the federal level, the states have stepped in to protect their citizens. In Colorado in particular, the state has engaged in a vigorous and comprehensive response since the issue came to light in Colorado Springs that has caught up with–and in some ways surpassed–the federal effort.

SOURCES

Bruce Finley, Colorado Ramps up Response to Toxic “Forever Chemicals” after Discovery of Hot Spots across Metro Denver, Den. Post (September 10, 2019), https://www.denverpost.com/2019/09/10/pfas-chemical-contamination-denver-colorado/.

Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, New York Times Magazine (Jan. 6, 2016), https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html.

EPA, Basic Information on PFAS (2020), https://www.epa.gov/pfas/basic-information-pfas.

EPA, Technical Fact Sheet – Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoic Acid (PFOA) (2017), https://www.epa.gov/sites/production/files/2017-12/documents/ffrrofactsheet_contaminants_pfos_pfoa_11-20-17_508_0.pdf.

Environmental Working Group, Mapping the PFAS Contamination Crisis: New Data Show 1,582 Sites in 49 States (2020), https://www.ewg.org/interactive-maps/pfas_contamination/.

Bruce Finley, Drinking Water in Three Colorado Cities Contaminated with Toxic Chemicals above EPA Limits, Den. Post (June 15, 2016), https://www.denverpost.com/2016/06/15/colorado-widefield-fountain-security-water-chemicals-toxic-epa/.

Bruce Finley, Air Force Admits Firefighting Foam that Was Spilled on Base Contaminated Water and Soil; People South of Colorado Springs Left in Lurch, Den. Post (July 25, 2017), https://www.denverpost.com/2017/07/25/air-force-admits-soil-water-contamination/.

Fish in Hot Water: Colorado’s Legal Mechanisms & Ramifications for Enforcing Fishing Closures

Sat, 21 Sep 2019 21:49:47 GMT

Fish closures have impacts that are beneficial, at least that is the hope.

Over the 2018 summer, Colorado’s Parks and Wildlife Commission (“CPW” or “the Commission”) asked anglers to shelve their waders and rods following voluntary fishing closures on various river sections statewide. Because of low water flows, high temperatures, and dry conditions statewide, CPW asked anglers to help protect the state’s overtaxed fish. These voluntary closures are commendable. But should people circumvent them, it could be devastating for both the fish and anglers alike. If anglers decide to shirk these voluntary closures, what kinds of legal mechanisms exist to enforce them? And, what potential legal ramifications exist for violators and Colorado?

Fortunately, CPW has a tackle box full of statutory and regulatory authority for enforcing these actions. To better understand the legal mechanisms at play and the possible ramifications that exist, this post delves into the statutory mechanisms that CPW may utilize to effectuate fishing closures. It also explores CPW’s delegated regulatory authority to invoke fishing closures across the state. Lastly, it discusses potential legal ramifications for both violators and Colorado.

Statutory Mechanisms Affecting Fishing Closures in Colorado

In addition to asking for voluntary closures, CPW has a comprehensive legal apparatus in place to enforce fishing closures under Title 33 of the Colorado Revised Statutes. Title 33 sets the administrative responsibilities for Colorado’s wildlife, including licensing requirements for hunters, fishers, and recreators. It also sets rules and regulations governing the state’s wildlife programs. Moreover, Title 33 grants CPW with broad statutory authority so that Colorado’s wildlife is “protected, preserved, and managed for the use, benefit, and enjoyment of the people of [Colorado] and its visitors.”

For example, Section 33-1-106(1)(a), C.R.S., grants CPW the power, if necessary, to shorten or close seasons on any species of wildlife in specific localities or statewide. Additionally, Section 33-6-120, C.R.S. provides corresponding criminal penalties for fishing out of season or in a closed area. It permits the levying of fines, assessing license suspension points, and makes it a misdemeanor offense for any violation.

Another statutory provision with related authority is Section 33-1-107, C.R.S. This section allows CPW to adopt rules and regulations for the management of agency-controlled lands, property interests, water resources, and water rights. To wit: CPW may restrict, limit, or even prohibit the time, manner, activities, or numbers of people that use these areas. Moreover, CPW may regulate in a manner that maintains, enhances, or manages property, vegetation, wildlife, and any object of scientific value or interest in any such area.

CPW also has angling specific authority to regulate fishing licenses. Under Section 33-1-106(1)(e), C.R.S., CPW regulates when persons may apply for a permit, the length of time the permit is valid, where the permittee may fish, and more. This statutory provision also provides CPW with the power to draft rules or regulations to help meet its statutory obligations thereto. Additionally, CPW possesses similar criminal enforcement authority (under Sections 33-6-105, 33-6-106, and 33-6-107, C.R.S.) to suspend the privilege of applying for, purchasing, or using a license; levying of fines; or to bring criminal charges against violators.

Another legal mechanism outside of Title 33 for enforcing fishing closures is the citizen petition provision under Section 24-4-103(7), C.R.S., of the State Administrative Procedure Act. This provision permits any interested person to petition CPW for the creation, modification, or removal of a regulation. And provides citizens with a nexus to participate in the rulemaking process; serving as a powerful device for individuals and groups alike to enforce these closures.

Last but not least, the Endangered Species Act (“ESA”) creates an interesting interplay between federal and state law. The ESA provides an extensive framework of laws that help protect and conserve species listed as threatened or endangered. This includes the Section 9 “take” prohibition, which makes it unlawful for any “person” to “take” any listed endangered or threatened species as designated through regulation. The statutory terms, “person” and “take,” are broad. For example, the term “person” literally applies to everyone—from state and local government officials, private citizens, federal government officials, and more. In addition, the ESA imposes both civil penalties (up to $25,000) and criminal sanctions (a maximum $50,000 or imprisonment of up to one year, or both) for taking a listed species. With these sorts of extensive prohibitions and penalties in place, both federal, state, and local officials could utilize Section 9 to implement fishing closures on waters where listed fish species inhabit.

Additionally, Section 7 of the ESA requires federal agencies consult with the United States Fish and Wildlife Service to “insure that any action authorized, funded, or carried out by [them] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat.” Although Section 7 applies only to federal agencies and federal agency actions, its reach is far wider. Because federal agencies are involved in the construction, development, permitting, licensing, or financing projects in Colorado, Section 7 could affect state and local agencies or private entities that require any sort of federal permit, authorization, or funds. Thus, making Section 7 an applicable statutory tool that could affect state entities requiring federal authorizations, permits, or funds to operate.

To date, Colorado is home to seventeen animal species listed under the ESA —five of which are fish species. Therefore, the federal government (via the Fish and Wildlife Service) also has authority to impose fishing closures based on its authority under the ESA and other similar wildlife conservation and preservation statues. Additionally, the federal government—in the spirit of cooperative federalism—can partner with CPW to inform and enforce these fishing closures. Thus, providing CPW with, not only more tools in its tackle box, but a valuable and powerful ally.

Through the comprehensive statutory regime in Title 33 and beyond, CPW has ample gear to help institute fishing closures throughout Colorado. Additionally, CPW may partner with, or rely on federal agencies to implement federal statutes (like the ESA) to help supplement its authority to effectuate these fishing closures around the state. Thus, demonstrating a robust set of statutory legal mechanisms at CPW’s disposal to implement fishing closures if need be.

Regulatory Mechanisms Affecting Fishing Closures in Colorado

The legislature has also delegated CPW the power to issue regulations that can help effectuate fishing closures. These regulations are extensive and forge an effective apparatus by which CPW may carry out these closures. CPW can regulate the dates and times of fishing, enact water specific or emergency closures, and other, more water body specific regulations.

First, CPW may regulate the dates and hours when anglers may catch fish. The regulation starts from the position that fishing shall be open day and night, year-round. But an exception allows CPW to otherwise restrict the dates and hours of fishing through other regulations, thereby driving a truck through the regulation. Thus, CPW may limit or close fishing around the state.

A second powerful regulation at CPW’s disposal permits the agency to prohibit fishing when in the process of adopting water specific regulations. Per 2 CCR 406-1:104(E), CPW may prohibit fishing “when necessary to:

Protect threatened or endangered species[;]
Protect spawning areas[;]
Protect waters being used in Commission research projects[;]
Protect new acquired access to fishing waters[; and]
To protect the integrity of sport fish, native fish or other aquatic wildlife populations.”

This regulation holds a dual purpose. The regulation gives CPW time to craft and mold regulations to pinpoint the needs of fish and address them accordingly. It also allows CPW to prohibit fishing while it enacts these water specific regulations to benefit Colorado’s fish. Hence serving as a mechanism to effect fishing closures while CPW issues necessary regulations.

Third, CPW also has the power to close fishing waters in times of emergency. Under the regulation, fishing waters may be closed for up to nine months. CPW may authorize an emergency closure after determining that water conditions have reached a level where fishing could cause unacceptable levels of fish mortality. (E.g., fish that become stressed because of low oxygen levels and increased food competition due to minimal flows and high temperatures—conditions that led to the voluntary closures over the 2018 summer.) The regulation enumerates five criteria for initiating an emergency closure:

Daily maximum water temperatures exceed 74˚ F or the daily average temperature exceeds 72˚ F;
Measured stream flows are 25% or less of the historical average low flow for the time period in question;
Fish condition is deteriorating such that fungus and other visible signs of deterioration may be present;
Daily minimum dissolved oxygen levels are below five (5) parts per million[] [; and]
When a natural or man-caused environmental event such as wildfire, mudslides, oil spills or other similar event has occurred, resulting in the need for recovery time or remedial action for a fish population[.]”

Curiously, there were several rivers that would have been subject to emergency closures. (CPW instead opting for voluntary closures of affected waters.) If these sorts of “emergency” conditions persist, CPW would be justified in closing off sections of river to fishing. Therefore, this regulation serves both as a powerful legal mechanism to enforce fishing closures, and as a reality check if anglers choose not to follow them.

Fourth and finally, CPW has also established specific management guidelines that afford further protection—explicitly for trout—for Colorado’s most pristine fishing waters, known as Wild Trout Waters and Gold Medal Waters. To be designated a Wild Trout or Gold Medal water, a water body must meet certain criteria. Wild Trout Water must be a habitat capable of sustaining a wild trout population, and with the primary fishery management objective of maintaining a wild trout population. Accordingly, Gold Medal Waters must produce a minimum trout standing stock of 60 pounds per acre, a minimum average of 12 quality trout per acre, and be accessible by the general angling public.

Once designated as Wild Trout or Gold Medal waters, CPW must administer the waters according to four specific management guidelines. The first guidelines states that CPW should manage these waters in a way that promotes the preservation and protection of the trout and their aquatic habitat. Although the first guideline does not give CPW affirmative powers or regulatory authority, it serves as an important signpost for how CPW must manage these waters.

In contrast, the second guideline serves as a more viable enforcement tool. It states that CPW may request mitigation from a person or agency that contributes to the loss or degradation of a Wild Trout or Gold Medal water. The regulation does not define or discuss what is meant by mitigation, or required of persons or agencies who are tasked with mitigating a water. But it is fair to surmise that it is not cheap. For example, the mitigation costs alone for the Northern Integrated Supply Project —as exhibited in the Draft Final Fish and Wildlife Mitigation and Enhancement Plan—hovered around $35 million. Thus serving as a powerful tool to not just recoup costs, but as a stick to ward off anglers who may choose not to tolerate CPW’s fishing closures.

Under the third guideline, specific to Wild Trout waters, CPW may recommend special regulations to sustain or enhance wild trout to provide quality-fishing opportunities. This allows CPW to create and import special regulations that protect fish. These regulations could include restrictions, closures, or bans on fishing to sustain or protect wild trout populations. And, therefore, could help bolster CPW’s authority to enforce fishing closures across the state.

The fourth management guideline for Gold Medal waters provides CPW with the authority to manage the fish in these waters. Principally, CPW can recommend regulations for the purposes of maintaining or exceeding the Gold Medal fish population criteria. Again providing CPW with authority to enforce fishing closures in these waters.

CPW’s regulatory authority allows for more acute control of fishing closures in Colorado. In tandem with its statutory counterparts, these regulations act as a bulwark against anglers who choose not to abide by the voluntary closures that were in effect over the summer. And help to ensure that CPW is capable of putting further measures in place should these voluntary closures fail to alleviate the stress on Colorado’s fish species.

Legal Ramifications for Violators & the State

Violators of these legal or regulatory closures and the state could face significant legal trouble. For violators of the law, the ramifications are quite plain: fines; loss of, or the privilege for applying for a license; and even criminal charges. These outcomes are certain. But should violators of either legal or voluntary closures push fish populations to the brink, CPW may be forced to restrict or prohibit fishing all together—a loss for all who love this activity and for those just learning to. And rather than voluntary fishing closures, anglers may soon have their favorite fishing holes locked up, with the key thrown away.

For Colorado, the impact would felt in the pocket book: loss of revenue from anglers from in- and out-of-state, and from tax paying businesses that rely on fishing to turn a profit. Hunting, fishing, and outdoor recreation in general are big business in Colorado : contributing approximately $6.1 billion to the state’s economy. In 2017, 1,100,609 people hunted or fished in Colorado—supplying $218.7 million in funding for CPW to manage and improve the state’s outdoors. From an economic standpoint, it would appear, the closures are “bad for business.” (What with people not spending money to fish and all.) However, a short hiatus is better than a permanent loss of resource. This rudimentary economics perspective, however, over-simplifies the problem: should fishing holes run dry the state will not only lose revenue, but a precious wildlife species (something that cannot be replaced by superior business acumen). Thus making voluntary closures good for both Colorado’s fish and economy.

Moreover, should the situation surrounding the State’s fish become dire, the Federal Government could supplant Colorado’s control through further implementation of the ESA or other federal statutes. Should that happen, Colorado’s management over its wildlife would be vastly limited and the people of Colorado’s voice over how to conserve and preserve our resources could be quelled. And in a state with a proud outdoor recreation history and booming recreation-oriented economy, this would be a huge blow to Coloradans.

The startling prospects of sweeping fishing closures, including loss of fish species and loss of revenue and business in Colorado could come to fruition should we choose not to act and save our fish. Tightening our appetite for fishing and exercising discipline is the only way to ensure that this problem does not balloon into something uncontrollable. And while it may be tough, it is vital that we take this step: not just for the avid angler, but for those who fish only occasionally, or people such as myself who enjoy seeing fish at the aquarium or on the occasional rafting trip.

CPW has broad statutory and regulatory authority to help protect Colorado’s fish. It is encouraging that CPW is seeking angler’s help to protect fish through cooperation and volunteerism. Should this cooperation or volunteerism fail, however, CPW is well equipped to protect the State’s fish through a comprehensive set of statutory and regulatory legal mechanisms. While the ramifications for violators and Colorado seem grave, through collaboration between state and federal government entities, as well as anglers, it is possible that voluntary closures may solve the problems facing our state’s fish. Conversely, should these voluntary closures fail, CPW is well suited to protect Colorado’s fish by employing the legal mechanisms at its disposal.

Sources

Coyote Gulch, @COParksWildlife Announces Additional Voluntary Fishing Closures in Northwest Colorado, Coyote Gulch (Jul. 27, 2018), https://coyotegulch.blog/2018/07/27/coparkswildlife-announces-additional-voluntary-fishing-closures-in-northwest-colorado/.

Colo. Parks & Wildlife, 2018 Fact Sheet, https://cpw.state.co.us/Documents/About/Reports/StatewideFactSheet.pdf (last visited Nov. 11, 2018).

Colo. Rev. Stat. § 33-1-101 (2018).

Colo. Rev. State § 33-1-106(1)(a) (2018).

Colo. Rev. Stat. § 33-6-120 (2018).

Colo. Rev. Stat. § 33-1-107 (2018).

Colo. Rev. Stat. § 33-1-106(1)(e) (2018).

Colo. Rev. Stat. § 33-6-105 (2018).

Colo. Rev. Stat. § 33-6-106 (2018).

Colo. Rev. Stat. § 33-6-107 (2018).

Colo. Rev. Stat. § 24-4-103(7) (2018).

Endangered Species Act, 16 U.S.C. § 1538 (1973).

Endangered Species Act, 16 U.S.C. § 1536 (1973).

Colo. Code Regs. § 406-1:101 (2018).

Colo. Code Regs. § 406-1:104(E) (2018).

Colo. Code Regs. § 406-1:104(F) (2018).

Alternative Methods to Success: New ATMs seen as solutions to Colorado’s buy-and-dry problem

Mon, 26 Nov 2018 08:19:08 GMT

ATMs, not the cash withdrawing machines we all think of.

T he Colorado Water Plan, released in 2015, called for the use of alternative transfer methods (“ATMs”) to help meet growing municipal water needs while preserving agricultural communities. However, very few of these projects have been established—due in part to cities’ reluctance toward temporary water supplies. But a new type of perpetual ATM may bring the assurances cities require and help make ATMs a viable alternative to the permanent sale of agricultural water rights and the negative outcomes of such buy-and-dry transfers.

ATMs have successfully moved water from agricultural irrigation to a variety of uses, including municipal, industrial, and environmental. Despite these victories, ATMs have been slow to catch on—particularly in Colorado, where ATMs are relatively new—due to uncertainty of how these deals will play out in the long term. ATMs are traditionally temporary leases of water from agricultural irrigators to municipalities, and the brief duration of these water rights has made cities reluctant to become involved in the process. However, a new kind of ATM that leases water in perpetuity may be the answer to questions of reliability and encourage new ATM projects in the future.

It is no secret that the arid western United States is running low on water , and drier, warmer weather could be the new normal in Colorado and the West. A recent study, commissioned by the Colorado Water Conservation Board (“CWCB”), found that Colorado’s average temperature has risen by about 2 degrees Fahrenheit over the last thirty years. But that has not stopped rapid population growth in urban and suburban centers, and warmer temperatures will challenge states’ ability to provide a reliable water supply to meet the competing water demands of rapidly growing cities, farms, and ecosystems. As more people move west, cities will have to find new, creative ways to provide sufficient water.

To meet municipal water demands, cities have increasingly purchased senior agricultural water rights, and permanently removed that water from the farms—a process known as “buy-and-dry.” While such transactions can be profitable for individual farmers, they threaten to undermine rural communities as the farmers and supporting businesses move out of the area, resulting the economic collapse of agricultural communities and environmental degradation. To combat the negative consequences of buy-and-dry, water users, researchers, and policy makers are developing innovative strategies and policies to improve the flexibility of western water law. Many states have adopted new policies that allow for water to be leased, rather than bought outright.

These alternative transfer methods have been used in other western states for decades, and Colorado is finally catching up, passing legislation that allows for a more streamlined, and less costly, process for implementing water transfers than traditional pathways through the water court system. The Colorado legislature has passed several bills in past ten years that create pilot programs to test the legal and functional validity of ATMs and make ATMs easier to administer.

However, even though pilot programs such as the Catlin Canal Pilot Leasing-Fallowing project have been successful, the water world moves slowly. ATMs have been met with considerable skepticism from agricultural water rights holders and cities alike. Some farmers are concerned that ATMs will lead to their water rights being taken, and cities have concerns over the certainty and reliability of leased—rather than purchased—water. But a first-of-its-kind ATM developed between Larimer County and the City of Broomfield has provided an answer to the lack-of-certainty argument by establishing a lease that is operational in perpetuity.

CALIFORNIA AND ARIZONA

Several western states have long histories with ATMs. For example, California and Arizona have established various forms of rotational lease-fallowing agreements—wherein farmers forgo irrigating a portion of their land for a growing season and lease the saved water. In 2013, the Yuma Mesa Irrigation and Drainage District and the Central Arizona Groundwater Replenishment District entered into a pilot short-term fallowing program to help keep water in the Colorado River. In northern California, several water districts in Sacramento River Valley entered into one-year leases to provide water to a group of water districts, called the Westside Districts, to supplement their water needs during a drought, by fallowing parts of land historically used for rice farming. The southern California cities of San Diego and Los Angeles have temporary leased water from farmers in the Palo Verde and Imperial valleys for years, and these programs have helped meet municipal needs while keeping agricultural lands in production. Colorado legislators, looking to these and other examples, decided that if ATMs could work in those water-short states, they might work for Colorado, too.

COLORADO

Like other Western states, Colorado water law is rooted in the principles of prior appropriation. Under this doctrine, a water right is merely a usufructuary right, meaning that the water right holder has permission to use a state’s public water resources in a specific way defined by the type water right granted. However, that is not to say that there is no inherent property interest in a water right. Water rights can be sold, leased, conveyed, or donated, in whole or in part. Water rights include the right to change the type and place of use, as well as the point of diversion, so long as other water rights holders are not injuriously affected. To ensure no injury occurs when one water right holder wants to change the use or location of the right, applicants generally must go through a formal judicial process in Colorado’s water court system.

Unlike other Western states, Colorado has a dedicated court system for the establishment and transfer of water rights. While the Colorado water court system has received praise for its due process, fairness of outcomes, and expertise of water judges and referees, it can also be a time-consuming and expensive process. Despite recent efforts to improve efficiency, the water court process remains a difficult undertaking. Because of the time and money required to change a water right, temporary transfers of water are generally not seen as worth the effort. So permanent sale of agricultural water rights and the negative impacts of buy-and-dry continue. In order to protect agricultural communities and still provide water for growing cities, the Colorado Water Plan promotes the use of ATMs.

ATMs help prevent the negative consequences of buy-and-dry by allowing farmers to maintain legal ownership of their water rights, while temporarily transferring that water for municipal or industrial uses. Alternative transfer methods come in many different models, including rotational fallowing agreements, deficit irrigation, interruptible water supply agreements, payments for conservation, water banks, and crop switching. ATMs provide a streamlined permitting process that keeps water transfer cases out of the expensive and time-consuming water court. For example, an interruptible water supply agreement (“IWSA”), which allows water right holders to temporarily transfer their historical consumptive use to another water user without permanently changing the water right, can be approved by the state engineer (outside of water court) as an option agreement which can be exercised for up to three out of ten years and can be renewed by the state engineer for as many as three ten-year periods total (or, thirty years). Notification requirements for IWSA applicants ensure that potentially affected water users can object to the IWSA if they think their water rights may be injured. However, since ATMs are a relative newcomer to water management, establishing an ATM presents potential legal, financial, and structural challenges—problems that legislators in Colorado have been trying resolve.

The Colorado General Assembly has passed various bills designed to make water law more responsive to the challenges of today’s changing water allocation needs. In 2003, legislators passed a law that enables the use of IWSAs. Another bill , passed in 2013, clarified the rules for long-term water leases, helping keep these temporary change cases out of water court, saving applicants time and money. An additional piece of legislation, House Bill 13-1248 (codified at C.R.S. § 37-60- 115(8) ), which was also passed in 2013 and extended in 2017, allows the Colorado Water Conservation Board to authorize up to fifteen rotational lease-fallowing pilot projects. While this bill has currently only produced a single project—the Catlin Pilot Project —that project has been successfully delivering benefits to participating farmers and municipalities alike for the past three years.

CATLIN PILOT PROJECT

Approved in 2015, the Catlin Pilot Project is a ten-year ATM that makes senior water rights available for municipal use by rotationally fallowing a portion of irrigated land in the Lower Arkansas River Basin. Six farms signed on to the pilot project to provide water to the towns of Fountain, Security, and Fowler. The project, now three years in, has consistently provided great benefit to the farmers and the municipalities. In 2016 alone, the Catlin Pilot Project delivered more than 400 acre-feet of water to the municipal participants, and farmers received an average of $1004 per acre for each of the 237.9 acres fallowed.

However, since this was the first pilot project undertaken, reaching an agreement between the parties—and soothing the fears of other water rights holders in the Catlin area—took a great deal of work. The CWCB also had a number of terms and conditions about how to go about drying-up the land. For example, farmers are contractually obligated to prevent the spread of noxious weeds, blowing soils, and erosion—all of which are typical outcomes and concerns regarding fallowed land.

By all accounts, the Catlin Pilot Project has been a rousing success story for ATM use in Colorado. In all three years of operation, the participating farmers achieved temporary dry-up while controlling noxious weeds and preventing blowing soils and erosion. The revenue produced by leasing a portion of their water allowed farmers to make significant upgrades to their farms, such as laser leveling their fields , installing drip systems, and improving the soil quality on the fallowed lands. The municipalities have consistently received nearly their entire portion of consumptive use water from the pilot project.

The accomplishments of the Catlin Pilot Project generally demonstrate that rotational lease fallowing is a viable means for farmers to temporarily provide water to municipalities while keeping agricultural communities going. And the continued experience gained during the Catlin Pilot Project will help identify ways to streamline operations and administration for future rotational fallowing-leasing projects. For example, the lease-fallowing tool developed for the Catlin Pilot Project could be adapted for other leases throughout Colorado.

So why is there only one of these pilot projects? It’s not for a lack of interest of the farmers—the Lower Arkansas Valley Water Conservancy District’s executive director Jay Winner said he has 5000 leases for water available from farmers who want to temporarily lease their water rights to cities. But almost no cities have expressed interest in entering into such an agreement. One reason for this lack of interest could be due to the fact that for the first time since 2012, Colorado is not facing drought conditions. Another likely answer is that municipalities simply do not want temporary water supplies. Cities need to be certain that they have enough control over the water to ensure long-term reliability in supply.

HOLD-UPS

The water community tends to be cautious about innovations in water law, and ATMs are relative newcomers to Colorado water policy. Agricultural water rights holders harbor fears of ATMs reducing the amount of water they are entitled to, despite provisions in the statutes that specifically protect against such an occurrence. There are also concerns that ATMs may be attracting investment firms to purchase agricultural water rights as speculative investments and make a profit by leasing the water, which could lead to some agricultural land no longer being irrigated. For example, Boulder-based real estate investment and management company Conscience Bay has purchased several ranches in Colorado, and the company’s president has expressed interest in exploring ATMs to provide water for municipal, fishery, environmental or other uses. While traders have bought and sold water rights for decades, the practice has increased in recent years , due in part to investors seeing Western water shortages as a change to make a substantial profit.

An additional issue concerning ATMs is the fact that these projects require complex agreements that need a great deal of time and money to achieve, which can make cities hesitant to pursue them for a temporary water right. Given the fact that it can take years to solidify these agreements, a ten-year lease may be considered too costly when cities could easily purchase agricultural water rights instead. And while pilot projects like the Catlin Pilot Project may be useful to illuminate how an ATM could be implemented, the variances in hydrology across the state and the specific needs of any given municipality means that such projects cannot be thought of as a one-size-fits-all solution to be replicated in all areas.

Municipal water utilities prefer permanent water supplies over the temporary water provided by an ATM. Planning and development of new communities takes a great deal of time, effort, and money, and cities need to be sure that the water they procure for these future residents will be available when needed. It is easier and cheaper for cities to buy farmers’ water rights outright than invest in water that may not be available at the end of the lease period, especially if the farmer’s needs change and he or she decides not to renew the lease. Even a thirty-year lease for water may be too tenuous to build a reliable water supply for planning and building a community of full-time residents. If a city expands by building a new community, it needs to be certain that water will be available at all times—forever—not just for the next thirty years. This uncertainty has deterred cities from participating in ATMs and has furthered the practice of buy-and-dry in Colorado. However, in August 2016, a first of its kind perpetual ATM was finalized between Larimer County and the City of Broomfield—and it may be the answer to quelling concerns about long-term municipal water supply reliability.

MALCHOW FARM

It all started when the Malchow Farm outside of Berthoud, Colorado went into foreclosure. The farmer, who had leased the land for thirty years, could not afford the $8.4 million price tag, $6.5 million of which was made up of the 240 units of Colorado-Big Thompson Project water. Neither could Larimer County, who wanted to keep the farm in production. So, in 2016, Larimer County sought and found a partner to help shoulder some of the costs.

Working through the Larimer County Open Lands Program (“LCOLP”), Larimer County set out to prove that implementing a perpetual ATM water supply for a municipality was a workable solution to permanently drying-up the farm. Since LCOLP primarily deals in conservation, they were comfortable with the idea of a perpetual arrangement. After meeting with several municipal providers, the County and City of Broomfield agreed to enter into an InterGovernmental Agreement that included an innovative permanent water leasing agreement which keeps water on the farm while helping fill municipal water needs.

In the deal, Broomfield paid $3.77 million for: (a) an interruptible water supply agreement on 80 units of Colorado-Big Thompson (“C-BT”) water; and (b) full ownership of 115 units of Colorado-Big Thompson water with the ability for Larimer County to lease-back. The deal offset nearly half the purchase price for Larimer County, and saved Broomfield money by leasing the water, which was less expensive than purchasing it. This agreement allowed Larimer County to buy the Malchow Farm, conserve 211 acres of farmland along with its value as a community buffer and educational tool, and keep 125 units of C-BT water on the farm. And because the ATM uses C-BT water, which is administered by Northern Water Conservancy District (“Northern”) and its users follow Northern’s rules, the water transfer is not required to be adjudicated in water court.

Finalized in August 2016, Northern’s set of rules around sharing beneficial uses of C-BT water serves to minimizes potential injury to other users and reduces the cost of establishing water sharing agreements. Under the interruptible water supply agreement, Broomfield can get water from the Malchow farm three out of ten years and must pay $18,000 those years. While on the surface, this may look like a typical IWSA, this one is special because rather than only being allowed for a total of three ten-year periods, this IWSA has no such limit. Broomfield is assured that they will have the right to call for water in three out of ten years, forever.

The fact that this ATM is operational perpetually is what makes it so unique. While Broomfield does not own the water rights, they will always be able to call on them, which provides the necessary certainty missing in other types of ATMs. This ATM adds eighty acre-feet of ATM water toward the 2015 Colorado Water Plan’s goal of 50,000 acre-feet by 2050. The hope is that this groundbreaking perpetual ATM will provide landowners, conservation entities, municipalities, and water districts in Colorado with an additional tool to help negotiate future water sharing agreements as an alternative to buy-and-dry.

CONCLUSION

The wary water community in Colorado has been slow to embrace ATMs as tools to achieve a hydrological balance that allows cities and farms grow side by side by sharing water. The result has been a proliferation of buy-and-dry deals that leave agricultural communities in ruins. Given the choice, most agricultural water rights holders would prefer to lease their water over selling it outright. But ATMs will never prevail over buy and dry until they can provide easy (and reliable) access to water supplies for municipalities. Hopefully, the new permanent model of ATM developed by Larimer County and Broomfield can serve as a template that other communities can implement to provide municipal users with the certainty they require while maintaining agricultural lands.

S OURCESn

Mollie Schreck, Larimer County-Broomfield Pilot Project , Your Colo. Water Blog (Nov. 20, 2007), https://blog.yourwatercolorado.org/2017/11/20/larimer-county-broomfield-pilot-project/.

Lower Arkansas Valley Water Conservancy District & Lower Ark Valley Super Ditch Co., Annual H.B. 13-1248 Catlin Canal Co Rotational Land Fallowing-Municipal Leasing Pilot Project (2016), http://cwcbweblink.state.co.us/WebLink/0/doc/201619/Electronic.aspx.

Envtl. Defense Fund, Alternative Water Transfers in Colorado, (2016), https://www.edf.org/sites/default/files/alternative-water-transfers-colorado.pdf.

Brian Devine, Moving Waters: The Legacy of Buy-and-Dry and the Challenge of Lease-Fallowing in Colorado’s Arkansas River Basin, (2015) (Envtl. Studies Graduate Theses & Dissertations), https://scholar.colorado.edu/envs_gradetds/27/.

Marianne Goodland, PARCHED: Farms could help solve Colorado’s water shortage. So why aren’t they? , Colo. Independent (Jul . 12, 2017), http://www.coloradoindependent.com/166269/agricultural-water-transfer.

Larimer County, Broomfield Finalize Innovative Water Agreement , Larimer Cnty (Aug. 28, 2017), https://www.larimer.org/spotlights/2017/08/28/larimer-county-broomfield-finalize-innovative-water-agreement .

Allen Best, Flex Time For Colorado Water , Headwaters (Fall 2017), https://www.yourwatercolorado.org/cfwe-education/headwaters-magazine/fall-2017-alternative-transfers/951-flex-time-for-colorado-water .

Scott Campbell, The Super Ditch: Can Water Become a Cash Crop in the West? , Land Lines (Oct. 2015), http://www.lincolninst.edu/publications/articles/super-ditch.

Joshua Zaffos, Can leasing irrigation water keep Colorado farms alive? Farmers try to stop “buy and dry” by pooling water rights to supply growing cities , High Country News (Jun . 8, 2015), http://www.hcn.org/issues/47.10/can-leasing-irrigation-water-to-keep-colorado-farms-alive.

Connecting The Drops: Alternative Transfer Methods – A Solution to Colorado’s Water crisis? , KGNU (Nov. 20, 2017), http://news.kgnu.org/2017/11/connecting-the-drops-alternative-transfer-methods-a-solution-to-colorados-water-crisis/ .

Colin Mayberry, Adaptive Water Management: Alternatives to Close the Supply-Demand Gap in the Northern Colorado Water Conservancy District, (2015) (Undergraduate Honors Theses), https://scholar.colorado.edu/honr_theses/861/.

Lower Arkansas Valley Water Conservancy District & Lower Ark Valley Super Ditch Co., Annual H.B. 13-1248 Catlin Canal Co Rotational Land Fallowing-Municipal Leasing Pilot Project (2017), http://www.lavwcd.com/catlin-pilot-project.html.

Colorado Cattlemen's Association, 2016 Ag Water Right Holder Survey Results Summary, (2016), https://www.coloradocattle.org/CMDocs/ColoradoCattlemen/2016%20Ag%20Water%20Survey%20Results%20Report.pdf.

Marianne Goodland, Lawmakers lament they “don’t have more influence” moving state water plan forward , Colo. Independent (May 26, 2017), http://www.coloradoindependent.com/165649/progress-state-water-plan-legislature.

Dennis Webb, Eyes on ag lands , Daily Sentinel (Ma r. 3, 2018), https://www.gjsentinel.com/news/western_colorado/eyes-on-ag-lands/article_519205ac-1f7a-11e8-8cd6-10604b9f7e7c.html .

James E. McWhinney, Water: The Ultimate Commodity , Investopedia (Feb. 26, 2018), https://www.investopedia.com/articles/06/water.asp.

Illegal Ponds in Colorado: More Than Just a Drop in the Bucket?

Mon, 19 Nov 2018 08:19:08 GMT

In a state where every drop counts, the pressure on Colorado to regulate and maintain a stable water-supply system is intense. Water administrators must constantly be vigilant to ensure there is enough water to meet the needs of the state and to fulfill downstream obligations. As the challenges presented by climate change and increased demand become more visceral, the State will need to start cracking down on something that—on first look—might seem quite innocuous: illegal ponds. However, ponds pose more than a few challenges to make enforcement worthwhile, and the State’s Division of Water Resources (“DWR”) is looking into how they could regulate them efficiently and fairly.

Looking to the future, Colorado’s State Water Plan anticipates a gap between the supply and demand for water in municipalities that get their water from the Arkansas Basin. Staff in the State’s Division of Water Resources has begun mulling whether more strict enforcement of illegal ponds would be helpful in filling this gap. While there are some problems associated with the logistics of the stricter enforcement of ponds, the potential for saving necessary water is there.

According to Assistant Division Engineer for Division 2 Bill Tyner, there are well over 15,000 pond-like structures that do not have decreed water rights or do not fall into another category of legal water storage. Of these 15,000, though, some structures are natural occurring areas, like wetlands, that would not be subject to the water administrative process. Tyner said, “the inventory of unknown ponds consists of approximately 10,000 surface acres” depending on hydrologic conditions and the level of current storage, and “an average rate of evaporation would suggest that the loss to evaporation could be as high as 30,000 acre-feet per year.” The typical pond holds between 0.5 and 1 acre-feet of water.

For context, the State’s 2015 Water Plan predicts the Arkansas River Basin will face a water-demand gap in coming years. The Plan suggests that future needs in the basin, otherwise known as Colorado’s Water Division 2, are expected to increase by 110,000 to 170,000 acre-feet in 2050, while currently planned projects in the Basin leave a supply gap of between 45,000 and 94,000 acre-feet for the same period.

Sustained gaps in water supply pose a risk to Division 2 and to the State as a whole. Colorado’s water sources must supply the State’s municipalities, agriculture, and industry but still comply with any interstate compacts, such as the Arkansas River Compact executed between Kansas and Colorado. Failure to comply with the Compact has previously resulted in Colorado paying millions of dollars of damages to Kansas.

One way to help fill the gap in Division 2 might be for regulators in the State Engineer’s Office to crack down on the large number of illegal ponds peppering the Basin. But closing the gap in Division 2 is not something that DWR is tasked with. While illegal pond enforcement could potentially help close the gap, DWR's priority is fulfilling their duty to administer water rights regardless of any effect on a predicted gap. As Tyner explained, "[DWR] has been given no direction to find water to fill the gap, certainly not through enforcement actions, and discussing enforcement in the context of the water supply gap could lead to the wrong conclusion. . . . [W]e actively seek opportunities to discourage and prevent new un-exempted and un-augmented ponds from being developed.”

Tyner also cautioned against linking the potential savings from pond enforcement to the size of the gap too closely: any comparison between the two, he said, is really just to highlight the scope of the problem. "Our past comparisons relating to the amount of water evaporating from the ponds or stored out-of-priority may indeed show an amount that could be as much as the Arkansas basin gap, however that contrast of data was intended to demonstrate the magnitude of the losses from ponds, not to suggest a solution to the demand gap," he added.

This article will address first, the current enforcement process; next, the complications involved with the current process; and finally, a new approach to pond enforcement that could take effect in the near future.

Current Enforcement

So far, Division 2 has had some success working with the owners of ponds who, usually without knowledge that what they are doing is illegal, are diverting water out of priority. Typically, when the Division locates a pond that is diverting water out of priority, an enforcement order informs the pond owners that a change must be made. This could mean draining the illegal pond or halting diversions from a nearby water source.

During drought years, the Division typically receives complaints from senior water rights holders who know they are losing water to ponds belonging to residents who don’t have water rights or who are junior in time. The Division then notifies the owners of the ponds, explaining they either need to apply for an augmentation plan or stop diverting water to their pond. Tyner said that once notified, pond owners usually comply with any enforcement orders. If successful enforcement like this were to become more frequent, the closure of more illegal ponds could aid Division 2 in obtaining more water to solve the projected gap and to help comply with the Arkansas River Compact.

When there is a gap in water supply, one place to look for more water are wells that are pumping out of priority. Before the 1969 Act, which codified Colorado’s system of prior appropriation, there were no requirements for wells to be adjudicated in the priority system. Now, the state recognizes two classes of wells : those that are exempt from the water rights administration and those that are non-exempt and are governed by the priority system. Regulation of non-exempt wells ensures senior water rights holders are getting the water they are entitled to. But according to Tyner, unintended consequences arise from state exemption statutes. Tyner said there are tens of thousands of exempt wells that statute treats as not having an impact on the priority system, even though they may. In more recent water court cases, the state has cracked down on exempt wells in recognition of their effect on the priority system, like in Well Augmentation Subdistrict of Central. Colorado Water Conservancy District v. City of Aurora. Tyner said that there is no strong emphasis on closing ponds like there is on closing wells.

Under Colorado law, storing water in a pond requires a storage right unless the pond is included in a plan for augmentation or substitute water supply plan (But even then, Tyner said owners are encouraged to obtain a storage right). One exception to the storage right requirement is when the Division Engineer determines that no senior call exists below the pond; however, this has only happened a few times in the last thirty years. Another exception is when, as determined by the Water Commissioner and the Division Engineer, the curtailment of the storage would not serve to fulfill a downstream call. So, unless a pond has a storage right (or is part of an augmentation plan) or there is an exception, the Division Engineer can curtail use of the pond. The problem, however, is the large number of small ponds dotting the Basin, making enforcement complicated.

One uncertainty, according to Bill Tyner, is how much water is actually lost to these rogue ponds. In some ways, this uncertainty provides an advantage for Colorado because Kansas, for example, would have a tough time arguing that ponds are an issue under the Arkansas River Compact simply because ponds do not have as strong of ties to the system as say wells—although wells used to be less strictly enforced as well. But it is clear to Tyner that ponds are diminishing the supply in some way.

Enforcement Complications

Why haven’t enforcement orders been issued to every illegal pond in hopes of saving Division 2 as much water as possible? The idea is not as simple as it may sound.

First, locating illegal ponds is difficult. While Division 2 contains some populous cities like Pueblo and Colorado Springs, it also comprises a lot of rural area. Tyner said water commissioners can use aerial photos to identify ponds, but typically enforcement orders arise as responses to specific injury concerns from senior water right holders. When a senior water right holder makes a call on the river, junior water right holders must stop diverting water from the system. When pond owners are unaware that they are continuing to divert water out of priority, this still injures those senior right holders. Also, there are various ponds that have legitimate reasons to exist and are in compliance with the Division of Water Resources. Some examples of these types of ponds are livestock water storage ponds and exposed gravel pit ponds, both of which may be permitted by the State Engineer. This makes it difficult to determine which ponds are noncompliant unless there has been a specific complaint.

Second, increased enforcement of ponds would require more Division staff and resources focused on this issue. Tyner said the Division has not made pond enforcement a high enough priority yet, but he previously saw the Division “staff up” when Kansas sued the state under the Arkansas River Compact. The Compact was made in 1948 to settle disputes over the waters of the Arkansas River, which runs through both Kansas and Colorado. In the past, when Kansas sued Colorado for failing to provide enough water under the Compact, the Division of Water Resources was forced to administer more personnel to enforce post-Compact wells under the threat of paying damages. If Kansas sues Colorado again, a similar “staff up” for pond enforcement could be required.

Additional factors complicating pond enforcement include the time it takes to ensure property owners remove illegal ponds, as well as the hardship enforcement might have on the pond owners themselves. Tyner said when the water commissioner first contacts the owners of illegal ponds, the owners are often surprised and unsure what to do. Considering the complicated nature of Colorado water law, the commissioner gives owners a few months to comply with enforcement orders.

Remedies vary depending on whether the pond is “on-channel” or “off-channel.” An on-channel pond is one that a natural stream runs through. If a pond owner is storing water out-of-priority or they do not have a storage right, the owner may be asked to release any water stored in their on-channel pond. This may require the dam for the pond to be breached. An off-channel pond diverts water from the stream. The remedy for illegal off-channel ponds is the cessation of all diversions to the pond. Pond owners can request an extension of time to comply with the enforcement order, which the Division typically grants. Tyner said in very few situations do people refuse to comply with the order; and in even fewer instances, a fine is imposed. On the rare occasions owners simply refuse to comply with the Division’s requests, the Attorney General's Office must file a complaint on behalf of the Division Engineers with the court. Most owners who initially refuse to comply end up signing a Consent Decree that identifies how they will comply with the order and by what date. Tyner said if the Division gets to this point, the owner must pay penalties.

Ultimately, given the time and resources needed, it is unrealistic to expect that a swift wave of enforcement against illegal ponds will have an immediate impact on the water system. At the same time, any solution should be considered given that Colorado will face continue to face challenges in complying with the Arkansas River Compact. In 2005, Colorado paid Kansas more than $34 million in damages for Compact violations caused by years of well pumping that depleted river flows at the state line—a situation that no one would like to see repeated.

"Although enforcement is not a tool intended to close the gap, we recognize that additional out-of-priority uses, particularly in an over appropriated basin, only make it more difficult to protect existing senior water rights and address legitimate future needs and so, through education and interdiction we actively seek opportunities to discourage and prevent new un-exempted and un-augmented ponds from being developed," Tyner said.

Proposed New Approach

In preparation for the September Orders Committee Meeting, Tyner drafted a memo to the Division of Water Resources Orders Committee in April 2018. In the memo, Tyner proposed a new approach to pond enforcement orders. The approach embraces a strict timeline for the emptying of ponds, as well as strict conditions for the refilling of ponds with approved augmentation plans. The harsher approach comes with time saving benefits for the water commissioner, and it seeks to rid of interim compliance problems when ponds are lowered properly but later refilled by rain.

Tyner’s memo explained that “it takes and inordinate amount of time to make monthly site visits to confirm compliance or non-compliance with the orders.” The memo outlined an improved process for pond enforcement. Tyner suggested that the Division first order an owner to remove unnecessary obstruction by breaching the dam or, if the pond has adequate operable outlet works, by releasing stored water. Tyner’s memo said orders should include “a show cause statement as to why the water in the pond has been legally stored and, if water can be shown to be legally stored, show how inflows will be passed to prevent injury to downstream water rights when in-priority storage cannot be conducted.”

The ideas Tyner suggested also include orders that refer pond owners to dam safety requirements and orders that identify a timeframe for owners to comply with in emptying their ponds. For dam safety, breaching or draining of off-channel ponds should contain a reference to dam safety provisions to avoid “a train wreck” with water being discharged to the stream. And for timeframes, Tyner suggested that for orders issued after September 1, compliance be met by the following April 1; and for orders issued after February 1 and before September 1, he recommended that the owner be required to empty the pond within 45-60 days from receipt of order.

Then, an order should apprise the owner of options for obtaining a substitute water supply plan or an augmentation plan for their pond to be refilled. According to Tyner, this should not be given as an option for compliance with the order, but “if someone was able to get approval for a plan over the winter with a provision to handle the initial fill, [the Division] could treat that as compliance with the order.” Further, any substitute water supply plan or augmentation plan approved for refill and fill maintenance on a pond should have strict conditions about operable outlet works.

For off-channel ponds, an order should be issued in a similar manner; however, the diversion to the pond should be immediately curtailed. The same considerations in any substitute water supply plan approval should be considered similarly to on-channel ponds, but with added conditions related to proper control and measuring devices on the diverted supply to the pond to allow control by the Water Commissioner.

This approach has the potential to simplify the process of pond enforcement, which could aid Division 2 in gaining more water. But even if this approach helps save more water, according to Tyner, “making water available through pond enforcement may not result in water being available at a proper location to solve the problem.” Also, “some landowners with ponds will choose to try to keep their ponds by working to develop augmentation plans to replace out-of-priority depletions”, so figuring out the overall impact of a new enforcement plan would “be a dynamic process” for DWR, Tyner said.

While dealing with illegal ponds is not easy, there is potential for Colorado to save a lot of water through stricter enforcement. Much like the way the state revamped its system to regulate wells to comply with the Arkansas River Compact, a stricter regulation of illegal ponds could prove very beneficial to the state.

Sources

Arkansas River Compact of 1949, Colo. Rev. Stat. Ann. § 37-69-101.

Bill Vogrin, A pond farewell: State cracks down on water rights violations , Gazette (Sept. 4, 2009) http://gazette.com/a-pond-farewell-state-cracks-down-on-water-rights-violations/article/61473.

Citizen’s Guide to Colorado’s Interstate Compacts , Colorado Foundation for Water Education Colorado 16-17 (2 ^nd ed. 2016), https://agriculture.ks.gov/docs/default-source/iwi---kansas-colorado-arkansas-river-compact/arkcompactfactsheetaug2009.pdf?sfvrsn=2.

Colorado Water Plan 6-21 (2015), http://cwcbweblink.state.co.us/WebLink/ElectronicFile.aspx?docid=199504&searchid=80d50cb3-95bf-405c-bfa5-587c633c7136&&dbid=0.

Guide to Colorado Well Permits, Water Rights, and Water Administration , State of Colorado Department of Natural Resources Division of Water Resources 2 (Sept. 2012), https://www.colorado.gov/pacific/sites/default/files/wellpermitguide1.pdf.

Telephone Interview with Bill Tyner, Assistant Division Engineer for Division 2, Colorado Division of Water Resources (Feb. 22, 2018).

Email correspondence with Bill Tyner, Assistant Division Engineer for Division 2, Colorado Division of Water Resources (Apr. 22, 2018).

Kansas Department of Agriculture, Fact Sheet (Aug. 2009), https://agriculture.ks.gov/docs/default-source/iwi---kansas-colorado-arkansas-river-compact/arkcompactfactsheetaug2009.pdf?sfvrsn=2.

The Abandoned Mine Problem: Who Should Bear the Burden?

Thu, 11 Oct 2018 22:45:51 GMT

T housands of abandoned and orphaned mines dot the American West. They pose a danger to both public and environmental health, and responsible parties are difficult to find, differentiate, or hold accountable. Why do inactive mines continue to pose safety hazards and pollute our waterways? The laws in place simply don’t have teeth. The Gold King Mine wastewater spill in southwestern Colorado in 2015 was a good reminder of the scope of the problem of abandoned and orphaned mines and how our current regulatory framework falls short.

There are three laws that generally govern mining law in the United States: the 1872 Mining Law , the Clean Water Act , and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These laws lack concrete measures to prevent mine spills from occurring as well as reliable methods to ensure that all mines receive the necessary attention in the case of a spill (or better yet, to prevent one). In addition, these laws can create liabilities and disincentives on parties who might otherwise be willing to come in and remediate the mine on their own. However, some states are turning towards a non-traditional form of legislation: Good Samaritan laws, in which citizens, companies, and organizations would be not liable in the case they decide to take on the task of cleaning up acid mine drainage.

The abandoned mine problem in the United States is striking. Specifically, hard rock mines (including metals like gold, silver, iron, copper, and zinc) are predominant in the West as a result of the discovery of gold and silver during the era of western expansion. Up until the 1970s, the federal government engaged in little oversight on mining across much of the West. During the mining era, there were few expectations about environmental safeguards, and as a result, historic mining operations often went largely unregulated. Before the 1970s, it was common for mining companies to abandon mine sites after mineral extraction was completed or no longer profitable. The land was often left exposed, with waste materials in piles or dumped into mine cavities and pits. At the time, mining companies had no requirement to restore mine lands to their original condition. Today, it is almost impossible to hold these mine owners financially responsible because records of original ownership have been lost and accountable individuals have long passed away. There are over 500,000 abandoned hardrock mine sites across the nation, and the cost for cleaning up these inactive mines is estimated to be between $33 and 72 billion dollars. Today, these abandoned mines are capable of polluting adjacent streams, lakes, and groundwater with high volumes of toxic waste . In doing so, contamination from spills has the potential to—and often does—harm marine ecosystems, poison local drinking water, and pose serious health risks to local communities.

What Laws Are in Place?

The Mining Law of 1872, or the General Mining Law, governs the transfer of rights to mine gold, silver, copper, uranium and other hardrock minerals from federal lands. Under the law, citizens may enter and explore the public domain, and if they find valuable mineral deposits, they may obtain title to the land through the Department of the Interior. The law has jurisdictional coverage over 270 million acres of publicly owned land , which is almost one-fourth of all land in the United States. In essence, mining companies are able to search for minerals without any authorization from any government agency. The law contains little to no environmental protections for using use of the land and it does not include any royalty or bonding provisions (to help fund cleanup in case of an accident). As a result, many have criticized the law for giving away public land to private companies practically for free, leaving the public to bear the burden for cleaning up the spills. Since there is no requirement to pay royalties or report extraction volume, the government does not keep track of the volume of hardrock minerals being extracted from federal public lands each year. Consequently, this aspect of mines is largely unchecked and has disparate effects.

But the issue of abandoned mines has not entirely been overlooked. In September 2017, Senator Tom Udall (Arizona) introduced legislation to reform the General Mining Law and address many of the above-mention criticisms. If passed, the legislation would help fund clean-up activities through fees and royalties. In March 2018, the House Committee on Natural Resources held a hearing on the issue of abandoned mines .

The Clean Water Act (CWA) is aimed at restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. The Act splits the responsibility to state agencies and some responsibility to the EPA to carry out the regulatory purposes. The Act requires would-be polluters to obtain a permit for any kind of discharge of a pollutant from a point source (such as mine waste) into the navigable waters of the United States. While the structure of the Act enforces a basic foundation for protecting water resources, one consequence of the permitting system is that parties who own or attempt to clean up mines will likely become subject to its extensive permitting requirements and face liability. This being said, when parties do attempt to clean up mines, their actions could still constitute a violation of the CWA. Under the Act, a party seeking to engage in cleanup activity would need a permit regardless of whether their actions aggravate or improve the water quality .

CERCLA allows for the cleanup of sites that are already contaminated with hazardous substances and pollutants. It is also referred to as the “Superfund,” due to the large fund that it created for cleanup of contaminated sites. CERCLA is intended to spread the cost of cleanup among responsible parties, and allows the government to undertake cleanup of contaminated property or compel private parties to undertake the cleanup themselves. Like the CWA, CERCLA creates potential liability for parties that might attempt to clean up abandoned mines, which usually takes form of lawsuits. Under 107(a)(4)(B), private parties can recover from a potential responsible party (PRP) for the cleanup costs they “directly incur.” Under this broad liability scheme, people who own property containing hazardous substances can be held liable for enormous cleanup costs even though they were not involved in any hazardous waste disposal activities . Even with some liability defense for certain types of innocent landowners and bonafide prospective purchaser, CERCLA has in effect discouraged the purchase and reuse of properties that may be contaminated. As a result, the overwhelming costs of cleanups (and potential liability) have been the primary restraining factors for people otherwise interested in reusing and restoring contaminated properties.

Good Samaritan Legislation

There has been no shortage of offered fixes to the problem of abandoned and orphaned mines, but one solution that has seemed to be getting more traction recently is the idea of Good Samaritan legislation. While potential liability under the CWA and CERCLA has discouraged parties from cleaning up abandoned mines or reusing and restoring contaminated properties, Good Samaritan legislation may provide new hope for parties who want to attempt to clean up mines but do not have the resources to take on the liability that might accompany cleanup efforts. These parties may include citizens, government agencies, nongovernmental organizations, and mining companies.

Pennsylvania implemented the Environmental Good Samaritan Act in 1999 and has completed fifty projects since . Those protected by this legislation include individuals, corporations, nonprofit organizations, and government entities. The Act protects them if they meet several requirements , including they that did not cause/create the abandoned mineral extraction land or water pollution, and that they provide equipment and/or materials for the project. The Pennsylvania Department of Environmental Protection (DEP) administers and reviews project proposals to determine project eligibility. While the Act has been used for mine reclamation in the past, DEP has also applied it to other environmental remediation projects, achieving success so far. In 2017, the Act has been applied to two oil and gas well projects , which are estimated to have saved DEP $60,000 to $85,000, in addition to administrative cost savings related to contract development and management. Three more projects are currently under review.

Recently, members of Congress have made efforts to enact something similar at the federal level. In 2016, three members of the Colorado delegation to Congress proposed the Good Samaritan Cleanup of Orphan Mines Act of 2016 with the help of environmental groups Trout Unlimited and Earthworks. The bill, ultimately, was not successful.

The practical reality of Good Samaritan legislation is that most parties who are interested in cleaning up the spills will not have the funds to effectuate a successful cleanup. While Good Samaritan laws appear to be a reasonable way to encourage cleanups, they are not enough to solve the multifaceted abandoned mine issue that has a variety of stakeholders- including the mining companies who are often let off the hook. This is why most environmental advocates tend to reject Good Samaritan proposals, as they distract from the bigger picture that the mining companies are causing the spills and are not taking responsibility to clean them up. While the EPA has issued guidance on Good Samaritan laws, few parties are willing to proceed with cleanup projects because the EPA has failed to engage in regulatory rulemaking and enforce law on the subject.

This being said, Good Samaritan legislation alone will not solve the abandoned and orphaned mine issue. Conservation groups have proposed increased liability for mining companies. At the state level, conservation groups like San Juan Citizens Alliance and Conservation Colorado have supported the

Thus, what seems to be the closest thing to an answer to the abandoned and orphaned mine problem is some sort of combination of many proposed solutions : Good Samaritan laws, imposition of royalties, creation of a hardrock reclamation fund, etc. At this point, the main question is where resources should be allocated and at what cost, especially amidst federal laws and agencies that often disagree on how and to what extent...” to protect the environment.

Sources

Jeffrey M. Gaba, Private Causes of Action under CERCLA: Navigating the Intersection of Sections 107(a) and 113(f) , 5 Mich. J. Envtl. & Admin. L. 117 (2015).

Kelly Roberts, A Legacy That No One Can Afford to Inherit: The Gold King Disaster and the Threat of Abandoned Hardrock Legacy Mines , 36 J. Nat’l Ass’n Admin. L. Judiciary 361 (2016).

Jeffrey A. Kodish, Restoring Inactive and Abandoned Mine Sites: A Guide to Managing Environmental Liabilities , 16 J. Envtl. L. & Litig. 381, 381(2001).

Bart Lounsbury, Out of the Holes We’ve Made: Hardrock Mining, Good Samaritans, and the Need for Comprehensive Action , 32 Harv. Envtl. L. Rev. 149 (2008).

United States v. Copar Pumice Co., 714 F.3d 1197 (10th Cir. 2013).

American Mining Congress v. United States Envtl. Protection Agency, 965 F.2d 759 (9th Cir. 1992).

Committee to Save Mokelumne River v. East Bay Municipal Utility Dist., 13 F.3d 305 (9th Cir. 1993).

Hardrock Mining , The National Wildlife Federation, https://www.nwf.org/Our-Work/Waters/Hardrock-Mining (last visited Apr. 5, 2018).

U.S. Gov’t Accountability Office, Mineral Resources: Mineral Volume, Value, and Revenue, (2012), https://www.gao.gov/assets/660/650122.pdf (last visited Apr. 5, 2018).

Matthew Brown, EPA drops rule requiring mining companies to have money to clean up pollution , Chi. Tribune (Dec. 1, 2017), http://www.chicagotribune.com/news
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12,734 Miles and Counting: The 50th Anniversary of Wild and Scenic Rivers Act

Fri, 28 Sep 2018 23:01:15 GMT

Introduction

Fifty years ago, the tide was turning in the war in Vietnam, the civil rights movement was in full swing, and the cold war was raging—but American industry was booming. The United States Congress and the Lyndon B. Johnson administration, however, recognized the danger that industry and development posed, particularly to America’s rivers. Responding to that threat, President Johnson signed the Wild & Scenic Rivers Act (“the Act”) into law on October 2, 1968. Now, fifty years later, it is possible see where the Act has been successful, where it has met challenges, and where it has developed along the way.

The end of the 1960’s marked a point of awakening for American conservationism. The scale of industry was coming to a point where industrial effects on the environment were impossible to ignore. America’s rivers were particularly suffering from decades of damming, development, and diversion. Congress turned to address these issues at the end of the 1960s, beginning America’s modern history of environmental law and setting up the 1970s as the environmental decade. The Wild & Scenic Rivers Act was one of the first pieces of legislation passed during this surge of environmental protectionism. To this day, it remains one of the strongest protections available for American rivers as it preserves the essential character of rivers in their natural, free-flowing state.

How it Works

The Act gives Congress—and in some circumstances, the Secretary of the Interior—the power to designate rivers for protection that “possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values.” This range of possible reasons for designation gives Congress a fairly broad grant of authority. Congress may also designate smaller sections of a river under the Act, including tributaries, instead of the entire river. The ultimate purpose of the Act is to ensure that protected rivers will be preserved in free-flowing condition for the enjoyment of future generations. The Act also requires that future development in non-protected areas implement policies that ensure designated rivers remain protected.

Congress can classify rivers as “wild,” “scenic,” or “recreational.” The classification does not prescribe how an area is managed; it simply denotes the relative degree to which the area has been preserved. Regardless of the classification, each area is afforded the same protections. “Wild” river areas are those that are representative of “primitive America.” These are defined in the Act as areas with pristine waters, undeveloped shorelines, and trail-only access. A “scenic” area is still relatively undeveloped, but parts are accessible by car. A “recreational” area may have some development and is readily accessible by car.

The typical means of designating rivers under the Act is through Congress. Congress first instructs that the agency with authority over a River—such as the National Park Service, National Forrest Service, or Bureau of Land Management—study a river area and determine if it is suitable for designation. The president or a state can also suggest areas for designation. After receiving the agency’s report, Congress can then choose whether to designate the river or not, regardless of the agency’s findings. In designating the river, Congress must classify the area as wild, scenic, or recreational and determine which outstandingly remarkable values (“ORVs”) are worth preserving.

A “wild and scenic” river is primarily protected through federally coordinated actions set out in the Act. First, the Act directs agencies to take action necessary to preserve the river in its free-flowing condition and enhance its ORVs. The Act also prohibits the Federal Power Commission from licensing the construction of a hydroelectric dam or other project that would affect a designation. Additionally, the Act prohibits any federal agency from loaning, granting, or licensing a water resources project that would have an adverse effect on the designated area’s ORVs.

Once Congress has designated an area as a Wild and Scenic River, a federal or state agency becomes responsible for administering the area. As the Act does not stipulate a specific agency to administer, the agency that normally oversees the area will typically be given responsibility. Regardless of the classification, the primary responsibility of the administrator of the area is to protect and enhance the “outstandingly remarkable” value or values under which Congress made the designation. Private property in the area and existing state-allocated water rights are subject to condemnation to achieve the purposes of the Act. The federal government, however, is limited in how much land can be condemned in any one designated area.

Unfortunately, recourse for holding an administrator accountable is somewhat limited, as the Act does not authorize citizen suits. This means that in order to hold an agency accountable for not properly administering a Wild and Scenic River, a plaintiff must sue that agency under the Administrative Procedure Act. The court will review agency actions under an arbitrary and capricious standard, which provides the agency with broad discretion as to how a designated river is managed, making it unlikely that most challenges would be successful.

The Evolution of the Act

Throughout its fifty-year history, Congress substantively amended the Act nearly thirty times , but the most significant changes to the Act occurred about ten years after the Act was originally passed. By 1978, the Wild and Scenic Rivers system was expanding quickly; Congress, reacting to growing pains of the system, amended the act with the intent to assist in the expansion of the system. The National Parks and Recreation Act of 1978 (“NPRA”) brought about some of the most sweeping changes to the Wild and Scenic Rivers Act, amending six separate sections of the original Act.

First, the NPRA amended Section 2 of the Act—the section guiding state-administered components—to allow federal funding for designated areas on federally owned land that are state-administered. This amendment specifically responded to an issue with the Department of the Interior objecting to designations where a significant amount of federal land bordered a designated area. Because the original 1968 Act lacked this provision, the Department of the Interior could object to such designations on the grounds that the federal lands could not be funded and managed properly.

The NPRA also amended Section 6 of the Act—the section regulating acquisitions—by changing the definition of “improved property.” The amendment is significant because the owner of an improved property that is acquired under the Act is limited to using and occupying the property for twenty-five years. The original Act only included dwellings constructed before 1967, and this amendment removed that limitation. Now, all those affected by acquisitions under the Act are entitled to this twenty-five year grace period.

Another significant amendment changed Section 14 of the Act—the section on leasing federal lands—also aimed to help those whose property was acquired under the Act. The amendment gives the administering agency the power to lease acquired lands if the lease is restricted to private uses compatible with the Act. In passing the amendment, Congress specifically contemplated that these leases would be offered first to the person who owned the land before the United States acquired it.

Nearly a decade after the NPRA became law, Congress scrutinized the Act again to address growing pains of the system and amended it another seven times. One of the most notable amendments from this wave of changes is to Section 6 (acquisitions), and continued a pattern of expanding federal power under the Act. The amendment gave the administering agency the power to acquire land that lies partially within and partially outside the boundary of a Wild and Scenic River. If the state owns the land, the amendment allows the federal government to acquire the land by exchanging federally owned land.

Notable Designations

When the Act was passed, Congress designated eight rivers as National Wild and Scenic Rivers: the Clearwater and Salmon Rivers in Idaho, Eleven Point River in Missouri, the Feather River in California, the Rogue River in Oregon, the Wolf and St. Croix Rivers in Wisconsin, and the Rio Grande in New Mexico. Today, fifty years after the Act was passed, there are now more than 12,500 miles in forty states and Puerto Rico. However, given the sheer size of the United States, the amount of area protected under the Act represents a mere 0.33 percent of America’s rivers. In comparison, damming alone has modified at least 17 percent of our rivers.

One of the original eight designations when the Act passed in 1968 protects sixty-eight miles of the Rio Grande in New Mexico . The protected area spans from the Colorado border through the eastern part of Rio Grande del Norte National Monument. The designation is based on a number of outstandingly remarkable values, including cultural and geologic value in addition to the typical scenic and recreational value.

In 1981, Congress protected 286 miles of the Klamath River under the Act on the coast of California. Congress designated the area of the river from the central part of the Oregon border all the way to the Pacific Ocean. The Klamath was specifically protected for its fisheries, which support a number of endangered species.

Congress designated eighty-six miles of the Allegheny River in Pennsylvania in 1992. The protected area begins at Buckaloons Recreation Area and continues downstream to Acorn Island. The designation is largely based on recreational opportunities, specifically canoeing and fishing.

The Act Today

In the last ten years, Congress has designated nearly forty new river areas as National Wild and Scenic Rivers. One of the largest years for new designations in the history of the Act was 2009, with thirty-two new areas gaining protection all across the country. Prior to 2009, Congress made new designations under the Act virtually every year. Since then, however, there have been only six new designations, all in 2014. Among the new designations were rivers in Washington, Arizona, and Vermont—and one existing designation was added to White Clay Creek in Delaware. Significantly, Congress also designated fourteen new river areas to study in 2014. Four years later, and Congress has yet to approve any new designations, however bipartisan legislation has recently moved forward to designate East Rosebud Creek in Montana.

Today, several areas of the Act are commonly litigated in federal court. Boundary designations are one of the most litigated areas, and have been throughout the history of the Act. Property owners challenge boundary designations to avoid acquisition or increased limitations affecting use of their property. Cities and counties also challenge designations if they feel prejudiced, as the Act can severely limit construction, irrigation, and discharge into a river. Designations typically face challenges on the grounds that the administering agency did not comply with the Act, usually by not identifying ORVs specifically enough. Boundaries must be consistent with protecting and enhancing a designation’s ORVs. However, objectors also challenge designations on the grounds that a certain area is not fit for designation. For example , in 2017 in Oregon, a group of ranchers challenged a designation on the Rogue River arguing that it had already been developed to such an extent that it was no longer fit for designation.

Another area of the Act that is frequently litigated today is how to actually manage the Wild and Scenic River system. Specifically, agencies frequently face challenges because they did not prepare a comprehensive management plan (“CMP”) for a designated area. The courts have recognized that the Act does not actually mandate agencies to draft a CMP, yet courts have required agencies to do so in certain instances, including through injunctive relief. Another common management challenge is to an agency’s decision regarding balancing competing uses. This usually comes up in the context of preexisting uses of the river area before designation. As these agency decisions are reviewed under an arbitrary and capricious standard, these challenges typically find little success.

In the next fifty years of the Act, we may see Wild and Scenic River designations being consciously used to combat climate change, as preserving America’s most important rivers could help mitigate some of the effects. As the changing climate continues to shrink and degrade critical habitat for aquatic species, America’s Wild and Scenic Rivers can provide essential repositories and corridors for certain species. Furthermore, as both drought and flooding have increased with the onset of climate change, Wild and Scenic Rivers can also help both preserve drinking water for a growing population and also maintain flood security.

Conclusion

By 1968 it was clear to Congress and the Johnson administration that America desperately needed to respond to increasing environmental degradation from industry and development. Recognizing the importance of our shared heritage, Congress gave Americans the gift of the Wild and Scenic Rivers Act. In the fifty years since the Act was passed, Congress has seen fit to designate and preserve over 12,000 miles of river for the benefit of future generations of Americans. While the amount of new designations has been steadily declining, the Act still offers some of the staunchest protections for America’s most beloved rivers. In every corner of the country, Americans likely have the Wild and Scenic Rivers Act to thank for the memories of lazy river days that we as Americans cherish as a part of our shared heritage.

Sources

47 Fed. Reg. 39454, 39458.

Allegheny River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/allegheny.php.

Celebrating Fifty Years, Wild and Scenic Rivers Council, https://www.rivers.gov/wsr50/index.php.

Federal Agency Roles, Wild and Scenic Rivers Council, https://www.rivers.gov/documents/federal-agency-roles.pdf.

Interagency Wild and Scenic Rivers Coordinating Council, Evolution of the Wild and Scenic Rivers Act (2014), https://www.rivers.gov/documents/wsr-act-evolution.pdf.

Jessianne Wright, Bipartisan Legislation Moves Forward for Montana Wild and Scenic Designation , Explore Big Sky (Jan. 7, 2018), http://www.explorebigsky.com/bipartisan-legislation-moves-forward-for-montana-wild-and-scenic-designation.

Karina Brown, Oregon Cattlemen Fight Wild & Scenic River Designation, Courthouse News Service, (Mar. 16, 2017), https://www.courthousenews.com/oregon-cattlemen-fight-wild-scenic-river-designation.

Klamath River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/klamath-ca.php.

Max Greenberg, Get to Know These Amazing Rivers: A Celebration of the Wild & Scenic Rivers Act, The Wilderness Society (October 2, 2014), https://wilderness.org/blog/get-know-these-amazing-rivers-celebration-wild-scenic-rivers-act.

Missouri River, Wild and Scenic Rivers Council, https://www.rivers.gov/rivers/missouri-mt.php.

Murray Feldman et al., Learning to Manage Our Wild and Scenic River System , 20 Nat. Resources & Env’t 10 (2005).

Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271–1287 (2014).

Wild and Scenic River Designation, Wild and Scenic Rivers Council, https://www.rivers.gov/designation.php.

Wine Woes and Water Stress: How Non-Essential Industries Cope with a Changing Climate

Fri, 21 Sep 2018 23:24:05 GMT

I n discussions about water shortage, the topic of the human right to water seems to be a key topic of debate. Different countries approach the question of whether individuals should have a right to access safe water differently, and much has been written comparing approaches . One aspect that is less well covered is how different countries approach water allocation for “non-essential” water uses in times of shortage.

The wines of South Africa’s Western Cape are world renowned. But the recent water crisis in this region has strained the industry , causing lower yields, increasing costs, and raising the question of priority for uses not considered essential to fulfilling a human right to water. Consecutive bad years threaten to bankrupt viticulturalists. Grape vines are perennials, taking years to mature, and death from stress or culling to save water can set grape growers back a decade or more. Combined with economic stress from lower yields, vineyards face tough choices in how to use meager water allocations.

South Africa is an extreme and timely case study, but drought is increasingly endemic to the wine industry globally. From the South Africa to Australia, France to California, water shortage is becoming a reality for grape growers. In such situations, wine is shaped by law as much as the rains. These struggles faced by wine suppliers highlight a conundrum that is gaining attention across States and industries. States take a variety of legal positions when rationing water during shortage. With increasing frequency, water sources are so stressed the basic needs of individuals are threatened. In such a situation, can and should law and policy restrict access for non-essential industries that don’t directly relate to individual needs? Wine offers a look at how this tension plays out. While enjoyable, it does not provide essential sustenance. A comparison how different wine growing regions regulate viticulturalists during severe drought offers an interesting look at the different ways of apportioning water when there’s just not enough to go around: some let the market sort everything out, while others take a more active role in deciding who gets what.

The Western Cape, Water Crisis, and Wine

The Western Cape of South Africa is entering its third consecutive year of inadequate rainfall. Many reservoirs, both municipal and agricultural, have been exhausted to the point of collapse, without normal replenishment. Dam levels fell to an average 21.4 percent , while the bottom 15 percent is unusable due to siltation. This has led to extreme conservation measures. Cape Town limited individuals to fifty liters per person per day , rapidly approaching the statutory guaranteed minimum of twenty-five liters per day. While individuals have a constitutionally guaranteed right to water minimum, juridical persons like businesses share no such protection.

Legally, water in South Africa is a common resource entrusted to state administration . Private parties may acquire authorizations to use water from a local state authority, a Catchment Management Agency. But there are significant limitations. The State can set temporal limits, assert guaranteed rights necessity to supersede rights, or implement pricing structures changing incentivize particular uses as more wasteful or beneficial. First, these licenses have an expiration date, whereupon licensees must reapply to state administrators. Second, basic human needs and environmental concerns have priority over other uses like agriculture during shortage, curtailing non-essential rights. Finally, the government charges a scalable tariff for any uses above the fifty-liter individual minimum, and for specific types of uses. Using these methods, the government exercises great control over water allocation.

For example, the government can exercise legal priority and economic pricing during the current drought to incentivize municipal uses over grape growing. Agriculture’s ability to use non-potable sources and geographical/infrastructure challenges have spared many vineyards from pressure to yield to individual needs. Still, the average irrigation dam fill is also low—at 26 percent —and local rainfall is inadequate to make up for the shortage. Should they share water with more critical uses, the local Catchment Agency may set prices higher for vineyards to disincentivize their use. In extreme cases, the Catchment Agency may even invoke the higher priority of human and ecological rights to limit or refuse water to vineyards.

Another challenge to giving a human right to water is a decrease in economic labor, leading to unemployment and unrest. Seasonal unskilled labor makes up 75 percent of South Africa’s agricultural sector. A decrease in vineyard yields means a decrease in jobs, increasing unemployment. This can have a cascading and catastrophic effect. In a country facing social unrest, water stress is another factor increasing social tensions. So while facially it might be prudent to conserve water for individual use, there could potentially be secondary effects impacting a broader population.

The challenges this drought poses for viticulturalists create an interesting case study of South Africa’s water law at work. If the drought continues, grapes may increasingly struggle compared to more urgent social uses. The price may increase so drastically that operating at current sizes may not make sense, setting vineyards back decades if they are forced to fallow vines. Additionally, the government can and has invoked priority of human rights to shuttle water away from agricultural uses. The subjugated priority makes it legally difficult to justify against other consumers, like potable water or more essential foodstuffs. And resulting lost labor would hurt the economy and add to social unrest. Michael Fridjhon, a prominent South African wine judge, has no doubt 2018 will be a defining year for South Africa’s wine industry.

Murray-Darling Basin, Australia, and Regulated Water Markets

Australian vineyards have battled drought before—the Millennium Drought from 1997 to 2009 was the longest, deepest, and most severe on record. This coincided with a glut in the grape market. Reacting to rising demand in the early nineties, new vineyards matured just as the drought hit, flooding the market with competition. These two factors had devastating effects on individual vineyards. Both the government and industry had to change their relation to water conservation by adopting a market approach combined with government-regulated allocations. The Millennium Drought offers a retrospective of how industry and government adapted to water stress using a market-based approach.

In Australia, rights are vested in the federal government, and managed by individual states. Complicating this, the Murray Darling Basin , the primary location for agriculture, overlaps three states , each with its own water allocation plan. In 2004, in response to drought, Australia developed an entitlement and allocation system—as well as a water market—to encourage best beneficial use. Entitlements are individual rights, granted in perpetuity and severed from the land. State agencies issue a yearly allocation plan dividing those entitlements, so they operate more like “shares” in a river allocation than a defined absolute volume. In response to the drought and interstate complications, in 2007 the states banded together to create the Murray-Darling Basin Authority to cover planning for the whole basin . A government-monitored market allows trading of both entitlements and yearly allocations, which steadily expanded as the drought intensified.

At first, the drought caused high water prices for viticulturalists in the loosening market, coupled with lower individual yields. The maturation of vines planted a decade earlier resulted in rock bottom grape prices due to increased competition. The eventual result though was a boon for vineyard owners , who were able to supplement allocations that were lower than they expected and save their vines from irreparable harm and death. Creating statutory rights and a robust regulated market helped vineyards survive despite water shortage.

Bordeaux, France: Old Ways, New Challenges

A combination of drought and extreme weather events have stricken European grape harvests , leading to a 20-percent drop in harvest from 2013 to present. Last year marked the smallest vintage in over sixty years . Government and industry have taken steps to combat a changing climate, but change comes slowly to a region so steeped in tradition.

The French government administers water in the public trust through planning and management. Irrigating vineyards has historically been illegal, with rainfall providing the sole source of water. This policy was strongly tied to keeping a ‘pure’ approach to viticulture. But on the heels of their own drought in 2005, regulations against irrigation have eased . Drip irrigation was allowed for the first time, to protect France’s number one agricultural export. This also means viticulture is now tied into the local water supply.

Additionally, in 2016, France became the first European Union nation to adopt a human right to water. However, the exact scope of this right is unclear and untested. France has not faced choices like South Africa, between providing a human right to water and continuing economically important, but vitally unessential industries.

Water scarcity increasingly impacts France’s wine regions, but it has not yet reached a critical juncture like in South Africa or Australia. French laws and regulations are adapting to react to this new threat, albeit slowly and cautiously. Because these laws and regulations are so new, it is not yet clear how a human right to water and loosening irrigation regulations will impact wine industry. Future severe droughts will test the French system, and since the set-up mirrors South Africa, it may play out in the same way.

California and the Free Market of Prior Appropriation

Balancing limited water resources with its position as a national agricultural epicenter is a well-trod discussion for the American West. California faced significant drought from 2012 to 2017, where reservoir totals dropped to as low as 8 percent. Much like the previous regions, this resulted in extreme stress on perennials like grape vines.

Water law in the U.S. is highly state-specific, but all states west of the 100th meridian, where precipitation alone is insufficient to grow crops, generally follow some form of Prior Appropriation. In this system, users must divert water and apply it to a beneficial use. Unlike percentage allocations of total supply such as in Australia, maximum use in California is usually capped at a specific amount, and is subject to seniority rather than state allocation. Additionally, there is a “use it or lose it” approach—if a user doesn’t use their maximum allocation, they risk forfeiting it in the future. It has been argued this protecting of rights is in fact counter-productive, encouraging waste among users who fear forfeiting valuable rights in over-allocated streams. Trading full rights is allowed, but to transfer portions of a right puts the user at risk of forfeiting it permanently.

Prior Appropriation states do not recognize or give special treatment to a human right to water, relying instead on free markets to provide for needs. California is the lone U.S. state to recognize a human right to water , codifying it in 2012. This guarantees a right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes. However, the scope of this right focuses on connecting rural and disadvantaged people to municipal water supplies. It does not address an individual’s relative priority in the Prior Appropriation system. The most senior rights, regardless of how they intend to use the water as long as it is beneficial, get priority.

This more hands-off, free-market approach puts most of the onus to surviving the drought on vintners. This can be a blessing or a curse, depending on a farmer’s position in the priority scheme. A senior right assures at least some flow, while a junior right is subject to fulfillment of those before it. At least there is relative reliance on this system for users, with no fear of expropriation for domestic use like in South Africa. While some state constitutions like Colorado in text provide for priority for domestic uses over agricultural and industry, courts have been hesitant to interpret this to upset the priority system. In Town of Sterling v. Pawnee Ditch , the Colorado Supreme court held constitutional language that domestic water uses were preferred above all others did not supersede constitutional protections against taking private property without just compensation.

During the California drought, farms adopted more efficient irrigation methods like drip irrigation, and used supplemental groundwater to weather the worst of it. Vines survived until the rains returned, but survive is very different from thrive. California vineyards are still in a precarious situation. While, for now the waters have returned easing the tension, but will the conservation lessons learned stick around or will fear of forfeiting rights return viticulturalists to the old ways?

Putting It All Together: What Trends Emerge Around Non-Essential Industries and Their Relative Priority

These four approaches to regulating water shortage fall on a spectrum. States with strong commitments to a human right to water like South Africa fall on one end. Here, states have decided that an individual human right to water eclipses rights that are not essential for vitality. The upside is there are protections for individuals so people do not face dehydration or death during water crises. The downside is uncertainty for those non-essential industries, and the fallout from diverting water away from these industries can have sever economic effects, rippling throughout a society.

On the other end of the spectrum is a free-market priority system like in California. First in time, first in right provides certainty for rights holders, who know where they stand in line. It also allows a certain freedom to buy or sell rights to fulfill specific needs. While individuals claim no right to water, municipalities often have large bargaining power to ensure individual needs are met. Still, a tendency towards maximizing individual rights usage to preserve them conflicts with conservation. And less regulated markets combined with hesitance to enforce priority for specific types of uses like domestic over agricultural means no guarantee water will be put to societally advantageous use.

Both France and Australian approaches fall in the middle. France’s relatively new regulatory changes and recognition of a human right to water put it more towards South Africa. But since this system has not faced a true test, a resolution to the tension between uses and needs remains unresolved. Australia’s market system leans more towards the California approach. But Australian markets are more regulated, and the government exercises more control by decreeing allocations in yearly basin plans.

It is evident that as droughts become a more common phenomenon globally, the tension between vital needs and economic needs is increasing. While this spectrum by no means marks the only way to approach a water shortage, a clear trend is emerging that States are choosing between free economic choice to allocate water, and ensuring basic human needs are guaranteed.

So which approach is right? Should there be a human right to water that supersedes non-essential industry rights, or should there be protections for freedom to own usufructuary rights? Approaches should be tailor-made to different cultures, geography, and legal traditions. After all, hydrological challenges are hyper-geographically specific, and the machinery of the law turns slowly. But evidence of increasing water stress globally makes this discussion far from theoretical. U.S. water lawyers would be wise to pay attention to how shortages play out in other countries in order to best advise their clients on which directions the tides may be turning.

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All Thing s Considered, Cape Town Copes with Water Crisis , NPR (Feb. 4, 2018, 5:08 PM), https://www.npr.org/2018/02/04/583152356/cape-town-copes-with-water-crisis .

All Things Considered, How a Historical Blunder Helped Create the Water Crisis In the West , NPR (June 25, 2015, 3:06 PM), https://www.npr.org/2015/06/25/417430662/how-a-historical-blunder-helped-create-the-water-crisis-in-the-west .

Alicia Garcia, Responding to Drought: Calls for Change and Recent Reforms in California , Denver U. Water L. Rev. (Jan. 24, 2017), http://duwaterlawreview.com/responding-to-drought-calls-for-change-and-recent-reforms-in-california/ .

Madilynne Clark, Use it or lose It – a counterproductive aspect of Washington’s water law that hurts conservation efforts , Wash. Pol’y Cent. (Mar . 23, 2017), https://www.washingtonpolicy.org/publications/detail/use-it-or-lose-it-a-counterproductive-aspect-of-washingtons-water-law-that-hurts-conservation-efforts.

Timothy Wright, Putting Some over the Hill: The Disparate Impact of Drought in California , 32 J. Envt’l L. & Lit. 143 (2016).

Cal. Water Code § 106.3 (West 2018).

Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882)

State ex rel. Cary v. Cochran, 292 N.W. 239, 246 (Neb. 1940).

T own of Sterling v. Pawnee Ditch Extension Co., 94 P. 339 (Colo. 1908).

Brian Palmer, Is Water a Human Right? , NRDC (Mar. 3, 2016), https://www.nrdc.org/onearth/water-human-right.

Staying Afloat: States Look to Integrate Water Planning to Combat Predicted Water Shortages

Wed, 04 Jul 2018 22:50:02 GMT

The number of people living in the water-scarce West has skyrocketed in recent decades. Colorado, for example, was home to 2.2 million people in 1970. By 2015, the state had grown to 5.5 million people, more than doubling the population. Current estimates suggest Colorado will reach 8.5 million people by 2050. Cities throughout the region continue to rank among the fastest-growing in the country. To accommodate the surge of new people, local governments have approved scores of new developments. This rapid population growth, however, poses a particularly poignant problem: ensuring water supplies can keep up with increased demand.

Currently, many states—including those with limited water supplies—use a build-first-find-water-second approach to supplying water for new developments. Land-use planners approve and regulate new development projects absent any water planning. Water managers and utilities then react to the increased demand by procuring additional water supplies or implementing new systems to ensure supplies for new communities. For a long period of time, reactive water planning worked. States addressed the increasing demand for water through a combination of conservation efforts, water diversions, and market-based reallocations of water from agriculture to cities.

For Colorado and other arid states, however, extending the status quo is no longer an option—reactive planning is no longer sufficient. Colorado is anticipating a significant water supply shortfall in the next few decades with limited options for procuring additional water supplies to meet the projected demands. To save off this shortfall, Colorado and other states must integrate water and land-use planning for new developments. This change, however, is easier said than done and will require rectifying the historical disconnect between water and land-use planning processes.

The Governance Gap

Often water planning and land-use planning for new developments are isolated, occurring within entirely separate legal frameworks. This so-called “ governance gap ” exists for two reasons. First, strategic water availability planning is traditionally a state function, while land-use planning for new development falls within the purview of local governments. Second, state water managers and local municipalities are often driven by different goals. Local officials are often under pressure to increase new development as a means of creating job growth or an increased tax base but have little reason to consider state-wide water availability (or the expertise to do so).

States typically take the lead in water management . State water administrators govern complex water regimes, often with the participation of federal agencies and tribes. States focus on ensuring long-term water supplies for their residents and are less involved in navigating competing demands like the “drying” of agricultural land or the need to engage the public.

Local governments, in contrast, oversee much of the land-use planning process. When local governments seek to grow and allow for new development, local planers typically create policy documents that set out the community’s long-term plans. Though these development plans can have a significant impact on water planning because they often include population estimates and details about the water infrastructure necessary to serve the community, they do not typically contemplate water supply planning.

To complicate matters, local governments may also participate in water planning through water companies and utilities. Municipalities own water rights and are generally responsible for determining the supply and demand for their service area and procuring the necessary water rights. This water planning can take place within the municipal government or, commonly, through a local water utility. Local utilities are frequently quasi-independent, and both physically and functionally separate from the municipal government. While development planners may need the approval of a local water utility after the plan is created, the utilities are seldom part of the initial plan, and development plans are often approved even where supplies are uncertain.

Now What?

While it is widely recognized that local governments should be given significant deference in controlling land-use planning, there is an increased focus on the role of the state in fostering sustainable growth through a more integrated planning process. Monica Green and Anne Castle at the University of Colorado suggest, “A starting point for this integration is the consideration of the availability of water to serve new development in the process of land-use approval by a local government.”

Similarly, Sarah Bates Van de Wetering at the University of Montana envisions an ideal system in which “water planning and development decisions . . . would incorporate deliberative public dialogue about long-term land-use priorities.” Specifically, in this system, “[l]and use planning would be mindful of water supply constraints, and would prioritize development that is most consistent with maintaining water quality and ensuring sustainable supplies.” At the same time, she says that “[w]ater suppliers would place a premium on making the best use of limited resources, minimizing demands, and ensuring that the impacts of water development on highly valued landscapes are acknowledged and taken into account before final decisions are made.”

Progress

Realizing the importance of incorporating water availability, supply management, and demand management into land-use planning, states and organizations have started to take action. Many states now require that new developments only be built where adequate supplies are available. While the extent of the water sufficiency review process varies, a few states have taken important steps to ensure decisions to approve developments accurately reflect the needs of the proposed communities, including helping to develop systems for realistic growth projections. For example, in Arizona and Nevada, state agencies provide expert review of water supply plans based on statutorily specified criteria. But, many state laws do not cover new development within current municipalities because municipalities are assumed to be able to handle the demands of new development. While this is sometimes true, significant new development within a municipality can strain or overwhelm a district’s resources.

A few states have also recognized that truly effective planning requires more than just legitimate water adequacy determinations. For example, Washington requires that each application for a building permit demonstrates adequate water supply; whereas, California only requires assured water supplies for subdivisions greater than five hundred homes. Additionally, states throughout the West have taken steps to improve conservation.

While no state has fully overcome the obstacles to integrated planning, and more work is needed, many states are beginning to take the critical steps necessary to better integrate their water and land-use planning processes and thus are helping to mitigate some of the potential water shortfalls expected in the West. Colorado, for example, created its first state water plan in 2015, which outlined objectives, goals, and actions for addressing the state’s future water needs. The plan incorporated input from water providers, local governments, the general public, and other stakeholders.

Many of these stakeholders are also the ones helping to implement Colorado’s water plan. For example, one proposed project was to create a Colorado Water and Growth Dialogue to develop recommendations for communities to create water savings in new developments and create a plan to disseminate the recommendations to local planners. Over two years—with funding from a variety of sources—a group of planners and other stakeholders met and achieved significant successes , including developing a residential land-use and water demand tool , which allows planners to understand differences in water demand for new developments.

Looking Forward

Many states are beginning to take steps to combat the governance gap and help mitigate potential water supply shortfalls over the next several decades, yet there is significant work left to be done. In Assured Water Supply Laws in the Western States , Monica Green and Anne Castle have cataloged the steps numerous states are taking to insure water sufficiency in the future. Their work illustrates that some states have made progress, but no state has fully solved the challenges of separate water governance systems.

Local and state officials will continue to have disparate priorities, and local control of land development remains a jealously guarded right . States with help from outside organizations , however, have succeeded in starting the process and educating communities. Whether or not states will take sufficient action has yet to be seen, but the importance of improvement cannot be overstated: the ability to live in the arid West hangs in the balance.

Sources

Anne Castle, John Sherman, & Larry MacDonnell, Integrated Land and Water Planning in Colorado, (2016), http://www.waterpolicy.info/wp-content/uploads/2016/09/Integrated-Land-and-Water-Planning-in-Colorado.pdf.

Drew Beckwith, New House New Paradigm: A Model for How to Plan, Build, and Live Water-Smart (2009), http://westernresourceadvocates.org/download/2381/.

John Murray, Denver’s population has swelled in the last 7 years , Denv. Post, Sept. 28, 2017, http://theknow.denverpost.com/2017/09/28/denver-neighborhoods-growth-2017/160032/.

Kevin Hamm, Colorado’s population could increase by nearly 3 million people by 2050 , Denv. Post, Jul. 18, 2017, http://www.denverpost.com/2017/07/28/colorado-population-forecast/ .

Kevin Reidy, Water Conservation Technical Specialist, Colo. Water Conservation, Presentation at 2015 Rocky Mountain Land Use Institute Conference, Land Use and Colorado’s Water Plan, (Mar. 15, 2017) (presentation slides), http://www.law.du.edu/documents/rmlui/conference/powerpoints/2015/REIDYLandUse-CWP.pdf.

Monica Green and Anne Castle, Assured Water Supply Laws in the Western States: The Current State of Play , 28 Colo. Nat. Resources Energy & Envtl. L. Rev. 67 (2017), https://www.colorado.edu/law/sites/default/files/attached-files/castle_final.pdf.

Nelson Harvey, Show Us the Water, Headwaters, (Jul. 7, 2017), https://issuu.com/cfwe/docs/hw_sum_2015_final_opt.

Sarah Bates Van de Wetering, Bridging the Governance Gap: Strategies to Integrate Water and Land Use Planning, U. Mont. Pub. Policy Res. Inst. 6-10, (2008), http://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=1022&context=water-resources-and-transformation-of-American-West.

Colorado Water Conservation Board, Colorado’s Water Plan Executive Summary, (2015), http://cwcbweblink.state.co.us/weblink/0/doc/200996/Electronic.aspx?searchid=ab75ea87-7dbe-4fea-98dc-b924c94c17f0.

Western Resource Advocates, Hardest Working River in the West: Common-Sense Solutions for a Reliable Water Future for the Colorado River Basin (2014), https://westernresourceadvocates.org/wp-content/uploads/2017/10/CO_River_Solutions_Hardest-Working-River-in-the-West_Whitepaper.pdf#page=36.

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