Water Law Case Studies

Transcription

1 Water Law Case Studies Tribal Adjudication Federal Reserved Water Rights: Gila River Indian Community Settlement Lewis & Hestand, UCoWR, 2006 HWR415/515 The University of Arizona

2 Preliminary Issues 1. Arizona Water Law Prior Appropriation 2. Winters Federal Reserved Water Rights Winters v. U.S. 207 US 564 (1908) 3. General adjudication: court decree that lists: appropriator, priority date, amount, purpose, place of diversion, place of use, timing 4. McCarran Amendment: federal participation in state adjudication mandatory HWR415/515 The University of Arizona

3 Water Rights Adjudication Legal process to fairly allocate water among competing users Cases literally spend decades in court Requires enormous time for discovery, weighing competing claims, education, political capital For tribes, more often entails negotiating for water and federal dollars for infrastructure 2012 The University of Arizona 3

4 Water Rights Differences Prior Appropriation State Express intent: Diversion necessary Priority date: first used Lost by non use (5 yrs) Amt: Beneficial use US v. NM 1978 Gila V 2002 Winters Doctrine Federal Implied: diversion/bu not necessary based on date reservation created Open ended not lost or diminished by time a. Amt needed to satisfy the future &present needs of the reservation b. Not based on present needs c. Practically irrigable acres (AZ v. CA) Winters only reserved water for the Primary Purpose of a federal reservation Indian reservations not subject to primary / secondary purpose test b/c of Federal goal of selfsufficiency and self determination Rejects PIA: tribes have legitimate water needs for: comm/ind, residential, recreational, cultural, wilderness & nat. reso. uses HWR415/515 The University of Arizona

5 Priority of Western Water Rights 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 2012 The University of Arizona 5

6 Federal Reserved Water Rights These are water rights created when federal lands are withdrawn from the public domain (e.g. national parks, wildlife refuges, national forests, Native American Reservations, Military Reservations) Federal Reserved Rights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State appropriative rights in that: (a) They are not lost by non use (b) Priority date is established when land was withdrawn (c) Measure and limit are defined by the amount of water reasonably necessary to satisfy both existing and foreseeable future uses of water for the primary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 2012 The University of Arizona (d) Arizona Beneficial Water Issues use not required in all cases 6

7 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 2012 The University of Arizona 7

8 ID Date of right Amount (acre ft) Practice Problem 1 Table A: Description of water user A A farmer who has been diverting 10 kaf of water since 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 D E F G A farmer that has been in business since 1878 but who has been only using 10 kaf of water continuously since An International Treaty that was signed in 1944 for 1.5 Maf An Interstate Compact that was signed in 1922 for 7.5 Maf 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 ID 2012 The University of Arizona 8

9 A Short History of Subflow Case year Southwest Cotton Gila II 1993 Gila III P Affirmed by Gila IV 2000 Progression of Definitions Does drawing off the subsurface water tend to diminish appreciably and directly the flow of the surface stream? If a well s pumping for 90 days would deplete the stream flow by 50% of the amount of water pumped. Arbitrary Consider factors like: Flow direction, water level elevation, chemical composition, Hydro. pressure from tributary aquifer 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 saturated floodplain Holocene alluvium A well is adjudicatable if the cone of depression extends to the point where it reaches an adjacent subflow zone, and by continual pumping will cause a loss of such subflow as to affect the quantity of the stream. HWR415/515 The University of Arizona

10 GRIC Water Rights Settlement Basic Process Needs 1976 Filed initial claim for 1.5 Maf for 370 kac Where the water comes from Master Plan: defensible water budget (653.5 kaf), construction/op/maintence of delivery infrastructure, expected economic return on operations Changes other parties would need to make to protect GIRC rights ie. Limiting adjacent GW pumping, Restricting further Ag development upstream GIRC conditions for waivers to give up continuing litigation Bush signs final agreement Allows non Indian parties with certainty that they can divide the water that remains to them. 650 kaf CAP; kaf firmed CAP Indian water $53 Mill to GIRC OM&R trust fund $147 Mill to rehabilitate San Carlos Irrig Dist. HWR415/515 The University of Arizona

11 Subflow The University of Arizona 11

12 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 2012 The University of Arizona 12

13 Jenkins: The Colorado River's Sleeping Giant Stirs, HCN, 4/28/03 60 s Colo. River Indian Tribes claim 717 kaf of water using PIA criteria Navajo Reservation 63 times larger; est Strategy trade some water rights for infrastructure $$ 2001 AZ SC allows more complex determination of water needs Regardless of size, Navajo claim will come from AZ s allotment of 1.2 Maf to CAP: cities v. Ag 2012 The University of Arizona 13

14 Kracker: The New Water Czars, HCN, 3/15/04 Gila River Indian Comm. (GRIC) 20,000 members; 375 kac; est Supplied all flour to North and South in Civil War! Use 200 kaf on 20 kac Seek 650 kaf for 146 kac 1890 s water stolen by up stream diverters Potential flow of Gila ~ 2 Maf Ironies: Massive expansion of Irrig. Ag; Others likely to use GW Status: Deal: Tribe gets 650 kaf, 200 kaf from farmers, who can waive $73 M in CAP debt Can lease 41 kaf to cities > $41 M $200 M for water infrastructure; San Carlos Irrigation Project 2012 The University of Arizona 14

15 McKinnon: Arizona Navajo, Hopi water deal stirs controversy, AZ Rep, 5/13/ kaf of unclaimed water in Little Colorado 31 kaf of Colorado River water (postponed) $800 M CR pipeline; $350 M GW dist. network (3) Limits Tribe s GW rights If Page plant coal lease renewed, 6400 af more In a rush Kylis nearing retirement Settlement will change life on the reservation the good ($, less hauling) and the bad (cultural/spiritial loss) 2012 The University of Arizona 15

16 Arizona GW law history Early: absolute right of capture : Howard v. Perrin 200 US 71 Percolating waters are not appropriable 1931 Subflow Maricopa Co. Municipal Water Conservation District v. Southwest Cotton Company 1950 s: American rule of reasonable use Landowner has free use at point of extraction 1970 s: FICO v. Bettwy (& City of Tucson) Water may not be pumped from one parcel to another underlain by common aquifer 1980: Groundwater Management Act (GMA) *** 1981: Chino Valley v. Prescott Not an unjust taking ones right to GW is to its right of use, not to the water itself 1999: federal reserved rights may extend to GW The University of Arizona