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Surface Water Legal Issues

ADEQ SW Short CourseJune 13, 2013Phoenix, AZ

ADEQ SW Short Course The University of Arizona © 2013 1

"In the Western United States, water flows uphill to money."Glen Sanders

ADEQ SW Short Course The University of Arizona © 2013

Outline

• Evolution of western surface water doctrines• Idealized water rights hierarchy• Water Law Case Studies

– Navigability• Santa Cruz case history

– Tribal Adjudications• Gila River Indian Community

– GW-SW Interactions• Verde River case history• Subflow

2

Bottom line: one-page summary• First in time, first in right; No equity.• Surface water rights depend on a basic hierarchy.• CWA protection requires a significant

connectivity (nexus) of chemical, physical and biological factors that affect downstream traditionally navigable waters.

• Winters doctrine conveys significant water rights to federal reservations and are the basis of many tribal adjudications.

• SW and GW are connected – magnitude and timing of effect might be arguable.

ADEQ SW Short Course The University of Arizona © 2013 3 ADEQ SW Short Course The University of Arizona © 2013

Western Water Law Doctrine & Cases

4

Primary Question

• How to determine ownership and amount?– Unlike many commodities:

• Naturally renewing• Hard to package – always on the move• Can be degraded for secondary users• Highly variable flows in most Western rivers• Groundwater is out-of-sight, diffuse and mobile

• Is it a property right or a possession right?


Early Water Law - Riparian Rights

Riparian Rights• “Reasonable use/Natural flow”

– undiminished in quantity or quality

• “Correlative Rights” – shared resource

• Amount of right– determined by proportion of

abutting acreage www.durham.gov.uk/.../usp.nsf/ Lookup/teesd/

Adapted from English System:Based on abundant available water sources

Typical countryside: Durham, UK

PROPERTY RIGHT

6


Early Western Settlers - Equitable use

Spanish missionaries

Mormons arrive at Salt Lake

• Water viewed as a shared community resource for survival

• Water rights are NOTpermanent

• Allocation decided by mediation:temporal priorityneedlegal titlecommon good

“COMMON GOOD”

7 ADEQ SW Short Course The University of Arizona © 2013

Most Western States- Prior appropriation

USE & TIMEFundamental Change in thinking:

• Gold Rush Mining Act of 1866- Protects the appropriative rights of miners and other users- Allows you to stake a claim - without ownership of property

• Amendment of 1870-Miners are vested- Protects them from homesteaders

Miner pans for gold in CA around the turn of the century

historichwy49.com/ photos/miner.jpg8


Prior Appropriation - First in time…

www.enn.com/enn-news-archive/1999/10/

“The essence of the doctrine of prior appropriation is that, while no one may own the water in a stream, all persons, corporations, and municipalities have the right to use the water for beneficial purposes. The allocation of water rests upon the fundamental maxim "first in time, first in right." The first person to use water (called a "senior appropriator") acquires the right (called a "priority") to its future use as against later users (called "junior appropriators").” Source: http://profs.lp.findlaw.com/water/water_1.html

No Equity:During times of drought, when allocated water exceeds river flow, junior appropriators may not receive their allocation- even if they lie upstream of senior appropriators …or if their use is more socially important, economically more valuable or more efficient.


Western Water Rights Hierarchy(idealized)

1.International Treaties

2. Interstate treaties/compacts

3. Prior Appropriation• Federal Reserved Rights

– depends on date reservation was established• States rights

– must be in almost constant use

10


International Water Agreements

Needed when waters controlled by more than one countryThree types:

(a) Local customs(b) International treaties(c) Decisions from international tribunals

International agreements supersede all other water allocations!

When Kansas and Colorado have a quarrel over the water in the Arkansas River they don't call out the National Guard in each state and go to war over it.

They bring a suit in the Supreme Court of the United States and abide by the decision. There isn't a reason in the world why we can't do that internationally.

- President Harry S. Truman


Interstate Water Agreements

Interstate agreements (involve federal government):1- Congressional apportionment2- Interstate compacts (treaties)3- Equitable apportionment (Supreme Court)

Interstate agreements are needed when waters are controlled by more than one state (e.g. Colorado)

Interstate treaties always supercede state apportionments12


Federal Reserved Water RightsThese are water rights created when federal lands are withdrawn from the public domain (e.g. national parks, wildlife refuges, national forests, Native American Reservations, Military Reservations)

Federal Reserved Rights differ from State appropriative rights in that:(a) They are not lost by non-use

(b) Priority date is established when land was withdrawn

(c) Measure and limit are defined by “ the amount of water reasonably necessary to satisfy both existing and foreseeable future uses of water for the primary purposes for which the land is withdrawn”

(d) Beneficial use not required in all cases13

Water Rights DifferencesPrior Appropriation Winters Doctrine

State FederalExpress intent: Diversion necessary Implied: diversion/BU not necessary

Priority date: first used based on date reservation createdLost by non-use (5 yrs) Open-ended – not lost or diminished by time

Amt: Beneficial use

a. Amt needed to satisfy the future & present needs of the reservation

b. Not based on present needsc. Practically irrigable acres (AZ v. CA)

US v. NM1978

Winters only reserved water for the “Primary Purpose” of a federal reservation

Gila V2002

Indian reservations not subject to primary / secondary purpose test b/c of Federal goal of self-

sufficiency and self-determinationRejects PIA: tribes have legitimate water needs for: comm/ind, residential, recreational, cultural,

wilderness & nat. reso. usesADEQ SW Short Course The University of Arizona © 2013 14


Prior Appropriation – Basic CriteriaCriteria for perfecting an appropriative right:

(a) Priority - “First in time, first in right”

(b) Beneficial use

• “The adequate amount of water necessary for your use”

• Consumptive Use & Reasonable Waste

• Weak / vague (low bar)

(c) … Intent, Diversion, …

(d) Continuous use

(e) No equity

Administered on a state-by state basis15 ADEQ SW Short Course The University of Arizona © 2013

How does prior appropriation differ from previous methods of water rights?

• Ownership of property provides no right to water• Assumes water flowing naturally is a public

resource until allocated• Ownership based on amount and time of usage• Abandonment will lead to forfeiture• No concept of equity or the common good• Water can be used anywhere as long as use is

“beneficial”• The right is transferable, at least locally

16

During a drought, how is water allocated?

A. Amicable discussions at Townhall meetingB. Second Amendment rulesC. First in time, first in rightD. Federal committee oversight


Water Law Case Studies

NavigabilityMeltz/Copland, The Wetlands Coverage of the Clean Water Act (CWA) Is Revisited by the Supreme Court: Rapanos v. United

States, Congressional research Service, RL33263, 2011


www.wildsonora.com/photo-gallery/floating-santa-cruz-river-inflatable-kayaks

1) Navigability - What’s the big deal?

• Confers Clean Water Act (CWA) protections

• EPA administers the CWA• Stems from early Interstate Commerce

needs• UA Army Corps of Engineers (USACE)

administers CWA dredge and fill (404a) permits


The Upper Santa Cruz River

Effluent-dominated reaches

A. Tubac-Continental Rd

B. Roger Rd-Pinal Co Line


Meltzer: Santa Cruz ruled "navigable"AZ Daily Star, Fri. 12/5/08

• 12/3/08 ‐ EPA Asst. Adm. of Water Benjamin Grumbles rules portions of Santa Cruz “navigable”

• Based on:– Width and depth of recorded flows– Presence of activities like canoeing and birding– Potential for more water due to on‐going restoration– Susceptible to future navigation; has been navig. in past

• Environmentalists – new guidelines still confusing• Rep Raul Grijalva – earlier decision was part of Bush

admin. business agenda – a “last ditch” effort • Opposed by SAHBA and Pima Co (initially)Arizona Water Issues © 2013 The University of Arizona - HWR415 21

Early Cases

• The Montello, 87 U.S. 430, 441-42 (1874). In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox River was a navigable water of the United States. The Court was careful to note that the bare fact of a water’s capacity for navigation alone is not sufficient; that capacity must be indicative of the water’s being “generally and commonly useful to some purpose of trade or agriculture.”

• U.S. v. Appalachian Elec. Power Co., 311 U.S. 377, 416 (1940) (“… lack of commercial traffic [is not] a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation.”


The Clean Water Act - 1972• Sec. 303 Threatened and Impaired Waters List- “Pollutants”

– Total Maximum Daily Load (TMDL) calculations• Sec. 401 Water quality certification- Requires federal agencies to obtain

certification from the state, territory, or Indian tribes before issuing permits that could result in increased pollutant loads to a water body. The certification is issued only if such increased loads would not cause or contribute to exceedances of water quality standards.

• Sec. 404: Regulates the discharge of dredged or fill materials into wetlands and other Waters of the United States. Wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil as evidence by hydrology, ecology and soils.

• Sec. 402: National Pollutant Discharge Elimination System (NPDES) program, Covers point sources of pollutants discharging into a surface water body

• Sec. 319: Addresses nonpoint sources of pollution, such as most farming and forestry operations


Legal Cases

• CWA: navigable waters = waters of the US– traditional navigable waters include waters which, although used,

susceptible to use, or historically used, to transport goods or people in commerce, do not form part of a continuous wateborne highway

• Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC)– abandoned sand and gravel pit; Limits applicability for isolated waters

that are both intrastate and non-navigable and home to migratory bird• Rapanos v. United States, and Carabell v. United States,

126 S. Ct. 2208 (2006) (jointly cited as Rapanos).– four Michigan wetlands lying near ditches or man-made drains that

eventually empty into traditional navigable waters. Rapanos had backfilled three of the areas without a permit. SC held that Navigable Waters does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall



Carabell PropertyMacomb county

Chesterfield townshipMichigan


http://aswm.org/wetlands-law/rapanos-carabell

Broader issues

Congress passed the CWA for the stated purpose of ‘restoring and maintaining the chemical, physical,

and biological integrity of the Nation’s waters’• How do you protect the headwaters and ephemeral

streams … to preserve downstream water quality?• To what extent should we include:

– wetlands ; upland ephemeral streams ; recreational waters ; tributary waters ; waters home to migrating birds?


Post-Rapanos Guidance, 12/2/08The agencies will directly assert jurisdiction over the following waters:

• Traditional navigable waters and • Wetlands adjacent to them• Non-navigable tributaries of traditional navigable waters that are relatively permanent (i.e., that flow year-round or have continuous seasonal flow) • Wetlands that directly abut such tributaries

The agencies will decide jurisdiction over the following waters based on a fact-specific analysis to determine whether they have a significant nexus with a traditional navigable water: • Non-navigable tributaries that typically do not flow year-round or seasonally • Tributary & Adjacent Wetlands to relatively permanent non-navig. tributary

The agencies will apply the significant nexus evaluation as follows: • A significant nexus analysis will assess the flow characteristics and functions of the tributary itself and the functions performed by all wetlands adjacent to the tributary to determine if in combination they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters• Significant nexus includes consideration of hydrologic and ecologic factors.


Another Case of Navigability

• State of AZ vs. (ANSAC) AZ Navigable Stream Adjudication Com.(2010)

• This appeal involves the long-standing battle to determine who owns the beds of rivers within the State of Arizona, specifically bedlands of the Lower Salt River. The crucial question to be resolved is whether the River was navigable in its ordinary and natural condition.

• If it was navigable, title to the bedlands passed to the State from the federal government at statehood on February 14, 1912, and the State retains title to those bedlands.

• If the River was not navigable, the neighboring riparian owners hold title

• The ANSAC ruled that only the Colorado River in Arizona is navigable.

• The court held in favor of the State, agreeing that the Navigability rule was misapplied.

State “give-away” of bedlands illegal.


In which case is the CWA least likely to apply to the following AZ waterway?

A. Indian School/Hayden Wash.B. A significant nexus exists between the reach in

question and downstream traditional waters.C. The river was navigable in its ordinary and

natural condition before statehood.D. A channel carrying parking lot runoff.



Sub Flow

What is groundwater?What is surface water?


The Subflow Question: What near-surface waters might be appropriable?

http://www.supreme.state.az.us/wm/bulletin/InterlocutoryAppeals.htm

32

A Short History of SubflowCaseyear Progression of Definitions

Southwest Cotton1931

“Does drawing off the subsurface water tend to diminish appreciably and directly the flow of the surface stream?”

1987 “If a well’s pumping for 90 days would deplete the stream flow by 50% of the amount of water pumped.”

Gila II1993

Arbitrary - Consider factors like:Flow direction, water level elevation, chemical

composition, Hydro. pressure from tributary aquifer

Gila III1999

“Subflow is an artifice”The question “… is not whether the water runs above or

below the ground, but whether it is necessary to accomplish the purpose of the reservation”

9 P.3rd @ 10822001

Affirmed by Gila IV2000

“saturated floodplain Holocene alluvium”A well is adjudicatable if the “… cone of depression

extends to the point where it reaches an adjacent subflowzone, and by continual pumping will cause a loss of such

subflow as to affect the quantity of the stream.”ADEQ SW Short Course The University of Arizona © 2013 33

“Final” Map - SP

Based on:• Geology

– NRCS soil survey maps of floodplain Holocene alluvium

• Hydrology– “Fully saturated”

• History– 1935 aerial photos

• Cone of depression– Cannot affect FHA



AZ GW-SW Conflicts – Verde Basin

The Battle to Save the Verde51 ARIZ.L.REV. 175 (2009)


I. Verde River & Surrounding Communities

• Yavapai County: pop=220k -> 400k• Prescott

– Prescott Valley– Chino Valley

• Verde Valley – 7000 exempt wells?– Clarkdale– Cottonwood– Camp Verde

• Salt River Project (SRP) – has SW rights


ADEQ SW Short Course The University of Arizona © 2013 37 ADEQ SW Short Course The University of Arizona © 2013 38

II. The Plan to Pump - i

• 1980 Groundwater Management Plan– Active Management Areas (AMA) – 4– Assured Water Supply: 100 yr supply req. for

subdivisions outside of designated service areas– OK’s xfers of GW betw sub-basins outside of AMA’s– Legitimized withdrawals from Little Chino– 1991 Sec 45-555

• (A) HIA exception, redirect water from Ag to Muni• (E) auth. excess 14 kaf pumping

– 1999 ADWR determined to be “mining GW” –restricted growth of new developments


II. The Plan to Pump - ii

• Prescott’s Water Supply and the Big Chino ranch proj.• City of Prescott is only designated water supplier

– Chino Valley well field: 15 mi @ 8500 af/y– Proposed Big Chino Ranch well field @ 12,400 af (E) (20 mi

from Verde headwaters), $170 M, 2008:reduced to 8067 af– 2006: learned that arsenic levels exceed federal standards

• Chino Valley – May 2007, decides to go it alone, growth of 20k homes– Proposed CV water ranch well field @2893 af (A)(5 mi from

Verde headwaters), $ 15 M; on hold; 26 parcels @ $3.5 M



Impact on the Verde

• 2004 USGS rept (Wirt & Hjarlmarson) – 86% of the Upper Verde flows come from Big Chino aquifer– Predicted first 24 mi would dry by 2099

• Prescott-area Consultant:– well field isolated by clay plug– only 5% of flow at Camp Verde due to headwater springs

• SRP Consultant– Drop in flow of 50% of pumping after 1 yr– base flow reduced 47% after 10-20 yrs


III. Opposition to the Plan, etc. - i

• SW-GW law– SW: Prior Appropriation: first in time – first in right– GW: reasonable use; Subflow – appropriable GW

• SRP’s Water Rights– 1905, 300 kaf from Verde– 1991 wants Prescott to develop monitoring mitigation plan

• reducing water use in the Big Chino• augment Verde flows with outside of basin water• depends on if pumped water is “subflow”• 2008 ADWR rules that wells are pumping GW; too far from river• SRP faces “uphill battle”; Issues: apportionment of damage, on-

going adjudication, court ruling on cone of depression capture of subflow


III. Opposition to the Plan, etc. - ii

• 2008 challenges to Big Chino water (E) Water– 8067 af (ADWR)– 3861 af (sold to Scottsdale)= 4081 af– 45-555(E) applies only to Prescott and thus illegal

• 2008 challenges CV HIA exception– withdrawal should occur from each plot, not single well

• Center for Biological Diversity ESA Concerns– 2004 Intent to sue; 2006 “Save the Verde” campaign– Sec.9:Pumping will destroy critical habitat by harming river– 9th Cir: habitat modification reasonably certain to injure endangered species is

sufficient to warrant a permanent injunction– CBD must show “future harm” is “sufficiently likely”– Incidental Take permit requires habitat conservation plan– Impacts: time, cost, slower growth, les development


www.azgfd.gov/outdoor_recreation/wildlife_area_upper.shtml

2008 – Wells Family /TNC

412 ac headwater conservation easement


IV. Municipalities’ Response to Legal Challenges

• Cost– $30 M -> $170 M, 80% new/20% existing

• Working Together– Verde River Basin Partnership Act of 2005; Cities won’t join– Upper Verde Watershed Protection Coalition; w/ cities

• “The difficulty the municipalities have had working with local stakeholders to study Verde-related issues reflects poorly on their likely ability to develop a comprehensive mitigation plan, manage a shared pipeline, or implement an HCP.”

• Developing Mitigation Plan and HCP• Mayor Wilson scoffed at the idea of producing a written plan

merely because “we’ve got some eco-nuts telling us to do it.”• Responses to SRP and CBD

– Muni’s frame battle as rural vs. urban interests; SRP’s deep pocketsADEQ SW Short Course The University of Arizona © 2013 46

This case hinges most on issues of:

A. SustainabilityB. GrowthC. Legal interpretationsD. Scientific interpretations


V. Possible Outcomes

• When and how should these conflicts be decided?• “Many scientists believe that pumping the Big

Chino aquifer will affect the Verde’s flow”, at some point.

• Contention that this is subflow would require massive state-wide recalibration of water rights.

• Who is right?– SRP?, City of Prescott, Prescott Valley, CBD?


2013 USGS Model Scenarios• 2005 base flow ~ 40 kaf/y; LT natural recharge ~ 59 kaf/y• Base flow decreased 4,900 af/y from 1910-2005 @ UVV• Base flow dropped 10,000 af @ LVV• Conservative future scenario –> only ½ “true” water needs

– 3200 af (UV); 6900 af (LV) from 2005-2110

• Effects of Past and Future Groundwater Development on the Hydrologic System of Verde Valley, Arizona– By Bradley D. Garner and D.R. Pool; USGS FS 2013-3016

• Human Effects on the Hydrologic System of the Verde Valley, Central Arizona, 1910–2005 and 2005–2110, Using a Regional Groundwater Flow Model– By Bradley D. Garner, D.R. Pool, Fred D. Tillman, and Brandon T.

Forbes; USGS SIR 2013-5029


Western Water Rights Hierarchy(idealized)

1.International Treaties

2. Interstate treaties/compacts

3. Prior Appropriation• Federal Reserved Rights

– depends on date reservation was established• States rights

– must be in almost constant use

50

Activity: Applying Prior Appropriation

• First, give priority to all treaties and compacts• Next, date all Federal rights based on when the

land was reserved for Federal uses,• Scan remain uses for breaks in continuity; ignore

earlier dates if water was not in continuous beneficial use,

• If a water user increases their use, the additional new use is assigned a priority based on its first use

• If a water user decreases their use, the lower amount still has the original seniority date


Practice Problem 1ID Date of

rightAmount (acre-ft) Table A: Description of water user

A A farmer who has been diverting 10 kaf of water since 1882.

B An Indian Reservation that was established in 1881 and is asking for an instream right of 10 cfs (~ 7 kaf/yr)

C A city that has been using 5 kaf since 1880.

D A farmer that has been in business since 1878 but who has been only using 10 kaf of water continuously since 1890.

E An International Treaty that was signed in 1944 for 1.5 Maf

F An Interstate Compact that was signed in 1922 for 7.5 Maf

G A state park fishery that was authorized in 1913 but has only been using 10 cfs (~7 kaf) since 1915

H A city that has been using 20 kaf of water since 1914


Rank 1 2 3 4 5 6 7 8ID

Practice Problem 1ID Date of

rightAmount (acre-ft) Table A: Description of water user

A 1882 A farmer who has been diverting 10 kaf of water since 1882.

B 1881 An Indian Reservation that was established in 1881 and is asking for an instream right of 10 cfs (~ 7 kaf/yr)

C 1880 A city that has been using 5 kaf since 1880.

D 1890 A farmer that has been in business since 1878 but who has been only using 10 kaf of water continuously since 1890.

E 1 An International Treaty that was signed in 1944 for 1.5 Maf

F 2 An Interstate Compact that was signed in 1922 for 7.5 Maf

G 1915 A state park fishery that was authorized in 1913 but has only been using 10 cfs (~7 kaf) since 1915

H 1914 A city that has been using 20 kaf of water since 1914


Rank 1 2 3 4 5 6 7 8ID E F C B A D H G

Bottom line: one-page summary• First in time, first in right; No equity.• Surface water rights depend on a basic hierarchy.• CWA protection requires a significant

connectivity (nexus) of chemical, physical and biological factors that affect downstream traditionally navigable waters.

• Winters doctrine conveys significant water rights to federal reservations and are the basis of many tribal adjudications.

• SW and GW are connected – magnitude and timing of effect might be arguable.


Bottom line: one-page summary - Sahraweb.sahra.arizona.edu/.../docs/ADEQ5_SWlaw_cases_4.pdf · AZ...

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Transcript of Bottom line: one-page summary - Sahraweb.sahra.arizona.edu/.../docs/ADEQ5_SWlaw_cases_4.pdf · AZ...