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From USA Today (Doyle Rice):
The dryness in California is only part of a longer-term, 15-year drought across most of the Western USA, one that bioclimatologist Park Williams said is notable because “more area in the West has persistently been in drought during the past 15 years than in any other 15-year period since the 1150s and 1160s” — that’s more than 850 years ago.
“When considering the West as a whole, we are currently in the midst of a historically relevant megadrought,” said Williams, a professor at the Lamont-Doherty Earth Observatory of Columbia University in New York.
Megadroughts are what Cornell University scientist Toby Ault calls the “great white sharks of climate: powerful, dangerous and hard to detect before it’s too late. They have happened in the past, and they are still out there, lurking in what is possible for the future, even without climate change.” Ault goes so far as to call megadroughts “a threat to civilization.”
from The Pagosa Springs Sun (Renita Freeman):
In the regularly scheduled meeting of the San Juan Water Conservancy District (SJWCD) on Oct.14, board chairman Rod Proffitt discussed the progress and tour of the Dry Gulch Water Storage Facility (Dry Gulch Project), concerns of the Colorado Water Conservation Board (CWCB) and the appraisal value of the Running Iron Ranch.
In a letter of intent dated Sept. 10 between SJWCD and the Pagosa Area Water and Sanitation District (PAWSD), each party agreed to work toward finalizing a satisfactory agreement that both relieves PAWSD of its financial obligations to the Dry Gulch Project and acknowledges efforts by SJWCD to develop the Dry Gulch Project on a more practicable basis with a broader group of interested partners.
The letter of intent stated that an exchange of PAWSD equity in the ranch to the CWCB for substantial debt relief is to both parties’ mutual advantage.
The letter of intent also states that if the principal outstanding on the loan cannot be reduced by the amount equal to the appraisal value of the ranch or $4.6 million, whichever is more, PAWSD may seek other means to reduce its debt to the CWCB. The letter of intent further states that the annual interest rate may be reduced to no more than 1.75 percent and a full term for payment of 30 years.
SJWCD agreed to provide an appraisal of the ranch to the CWCB, which would establish the fair market value of the 660-acre ranch, shared water rights directly and indirectly related to the Dry Gulch Project, and long-term debt obligations to the CWCB incurred in the purchase of the ranch…
Proffitt went on to explain that the problems with comparables done on similar ranches which sold for more was the fact they had more buildings and structures in place, as well as more riverfront on the properties than those of the ranch that was appraised.
Proffitt told the board he had completed a tour of the Dry Gulch Project with CWCB Commissioner James Eklund, Jeff Robbins, legal council for PAWSD, and Kent Holsinger, legal council for SJWCD.
Eklund was impressed with the site, Proffitt explained…
Proffitt told the SJWCD board Tuesday evening that steps should be taken in order to satisfy the CWCB concerns that the board stayed focused on the Dry Gulch Project and did not wane.
“Due diligence is needed to keep the Dry Gulch Project moving forward. Hopefully, the courts will see we are exercising due diligence,” he said.
In an email, CWCB Deputy Director of Resource Management Tim Feehan stated other items CWCB would like to see as part of an agreement going forward: “SJWCD would retain an equitable interest in the Dry Gulch Project and its fee interest in the property. SJWCD would be able to move forward with land exchanges to further the Project.”
Other items for consideration mentioned in the email were that SJWCD would be provided with adequate funding to move the project forward and would take the lead in discussions with the Southern Ute Indian Tribe and other potential partners in the project.
The email went on to state that the CWCB would like to see SJWCD considered as manager/coordinator for the project once it is built and it also needs closure to be on the loan/grant agreement. The correspondence also pointed out a new operating agreement needs to include a forgiveness provision on the loan side of the existing agreement.
More Dry Gulch Reservoir coverage here.
From the SCOTUSblog (Ryke Longest):
On Tuesday, the Court heard arguments in an original jurisdiction dispute between Kansas, Colorado, and Nebraska over flows of a common river: the Republican River. After the states disputed the terms of their 1943 compact, they enacted a 2003 settlement stipulation. When the parties confronted a breach by Nebraska and a dispute over the water supply models they used to calculate Nebraska’s share, they reached an impasse. Kansas exercised its veto power, sending the dispute first to arbitration, then the Special Master and to the Supreme Court.
At oral argument, Kansas disputed the special master’s proposal to alter the settlement stipulation’s water accounting procedures based on a claim of mistake. Kansas spent most of its argument focused on the accounting procedures changes suggested by the special master. Kansas argued that the special master exceeded the charge and upset a carefully negotiated compromise by siding with one party. Nebraska similarly focused on the accounting issue, but characterized the carefully negotiated bargain as the principle that imported water should not be counted, with the formula representing a tool for implementation as opposed to a term. Justices pushed back on both sides.
Kansas argues Against the Five-Run Solution
Kansas Solicitor General Stephen McAllister came out forcefully arguing that the settlement stipulation itself was a carefully crafted compromise. McAllister stated that all parties were aware that the accounting procedure was subject to uncertainty. Kansas’s primary objection to the special master’s report involves the special master’s recommendation to amend the accounting procedure to implement Nebraska’s proposed “five-run solution.”
Justice Stephen Breyer pushed back on the argument against reformation, noting pointedly that, due to a mistake in the model, Nebraska’s use of “imported water” from sources outside the Republican River basin is counted against it under the settlement stipulation’s accounting procedures. Justice Breyer continued: “And nobody wanted that. That would be totally unfair. … So what do you suggest we do about the mistake? Nothing?”
McAllister responded that they should send the case back and do nothing about the mistake, since it is not a mutual mistake. He emphasized that the intersection between the “five-run solution” and other issues were highly complicated and that Nebraska had gotten concessions in other areas of the settlement which kept the accounting mistake from being unfair. McAllister pointed out the effect of groundwater recharge credits as an example: “We gave Nebraska a high credit for groundwater recharge at a percentage much higher than Colorado and Kansas get and Nebraska crowed about that as a concession they got from Kansas that was worth 15 to $20 million annually, that’s Exhibit K, 133, in the record.”
Justice Antonin Scalia asked McAllister about the role of deference in the case. McAllister said that there was no deference owed the special master and argued that the special master ignored trade-offs. McAllister asserted that the parties needed to renegotiate the entire set of trade-offs in order to be fair, rather than allowing the special master to set aside one set of trade-offs to the benefit of Nebraska and Colorado.
Chief Justice John Roberts asked what Kansas thought of its chances if the matter were sent back to the Republican River Compact Administration, for resolution. (All disputes under the compact are run first though this body, consisting of one representative of each of the three states.) McAllister responded, “Twenty-some years ago, Kansas introduced a resolution in the RRCA that said, how about we all resolve that we will comply with the compact. Kansas voted yes, Colorado voted yes, and Nebraska voted no. So this goes back a long ways.” McAllister went on to explain that its proposed disgorgement remedies against Nebraska were necessary.
The United States argues for the special master’s disgorgement remedy
Assistant to the Solicitor General Ann O’Connell argued on behalf of the United States in support of the special master’s Report. O’Connell defended disgorgement by pointing out that disgorgement must be sufficient to discourage opportunistic breach, citing to the Restatement of Restitution and Unjust Enrichment. Justice Scalia asked whether the United States was overstating case law by citing the Restatement, telling her that “I don’t think the Restatement can change our law by just saying something by consensus of law professors.” O’Connell cited back to the classic case of Texas v. New Mexico to support her position. In response to questioning about the amount of disgorgement, O’Connell avoided taking any position at odds with the special master. Justice Kagan asserted that the $1.8 million figure recommended was less than what Nebraska had gained by its breach, arguing against an equitable balancing approach.
Nebraska argues that Kansas’s veto requires the Court to break the impasse
David Cookson, Nebraska’s chief deputy attorney general, argued that the bargain Nebraska struck with Kansas was that water imported from the Platte River Basin would not be counted towards Nebraska’s allocation of the Republican River. Justice Scalia questioned whether the deal was actually that broad, suggesting instead that Nebraska had agreed to a formula, not a broader principle.
Scalia explained: “The parties knew that this formula would not be entirely accurate and they agreed to a fair price, that is, none of this water should be counted. But they said the way to figure out whether this water is coming in or not is this formula. Why shouldn’t they be held to that formula?”
Cookson responded that the settlement specifically provided the parties with the ability to modify the accounting formulas. Nebraska asked the Republican River Compact Administration to modify the accounting procedures, to which Kansas objected exercising its veto powers. The issue was then sent to arbitration and finally to the special master who recommended the change to the formula, the “five-run solution.”
Chief Justice Roberts asked Cookson if he agreed that the special master would have been powerless to change the formula if it had been part of the original compact as opposed to a later settlement. Cookson readily agreed that amending the compact would be beyond the power of the special master, citing Alabama v. North Carolina for support.
Justice Kagan picked back up the thread of Justice Scalia’s question and extended it further. She asked Cookson what would happen if the parties had negotiated over three distinct formulas and had chosen one. Under that situation, she wanted to know, would it be right to continue to use the formula chosen going forward? Cookson pushed back that changing the accounting procedures is basic process under the agreement, and that prior to the current dispute, fourteen such formula changes have been approved by the three states. Cookson continued that this time is different, because Kansas has objected. He reasoned that the exercise of a veto can kick the dispute to the Supreme Court to break the impasse created by the veto process in the compact itself, likening the problem to the one faced in the Pecos River Compact, brought before the Court in Texas v. New Mexico.
Chief Justice Roberts countered that the formula, as specific language in the contract, should control the general statement that imported water not be counted. Cookson argued that the imported water stipulation was the specific term and the formula was just the tool designed to deliver that deal.
Cookson defended Nebraska’s response as not showing an intentional violation of either the compact or the stipulation. He argued that Nebraska could not have foreseen dust-bowl-like conditions. He argued that there is no need for an injunction or for disgorgement, tangling with Justice Scalia again on how those remedies interact.
Kansas rebuts Nebraska’s argument that the formula was just a toolkit
In rebuttal, McAllister returned to Justice Kagan’s line of questioning the choice of formulas for accounting made by the parties in the settlement stipulation. McAllister pointed out that the formula that Nebraska is seeking to have reformed was actually selected by Nebraska as its first choice during settlement negotiations. Citing the result in the boundary dispute of New Hampshire v. Maine, McAllister told the Court that it had given “New Hampshire the answer we think you should give Nebraska today, which is: ‘Sorry; you made the deal, and just because you now think you have a better way of doing it doesn’t mean we should rewrite the contract.’”
In closing, Justice Sonia Sotomayor asked McAllister how much money is represented by the difference between the accounting preferred by Nebraska and that preferred by Kansas. McAllister answered with the amount of water in dispute – between 8,000 and 10,000 acre-feet. (An acre-foot is the amount of water needed to cover an acre of land to a depth of one foot, approximately 325,851 gallons.) When Sotomayor pressed for a dollar figure, McAllister told her that the special master had valued the water to Nebraska at $362 per acre-foot. On that note, the Court adjourned.
Ryke Longest is the Director of the Environmental Law and Policy Clinic and a Clinical Professor of Law at the Duke University School of Law.
More Republican River Basin coverage here.
From The Conejos County Citizen (Sylvia Lobata):
A historic Spanish agricultural irrigation system of unlined water ditches that irrigate farmers’ fields, with water flows directed by the movement of tarps and dirt along each ditch, the unlined acequias are also believed to recharge the area’s shallow aquifers and support biodiversity.
Costilla County has 70 acequias covering 35,000 acres and serving 270 families, while Conejos’ 50 acequias, serve 45,000 acres and 100 families, linking the water users to their 16th century Spanish heritage, maintaining that culture across some nine generations in these isolated farmlands.
When heirs were being identified during the lengthy lawsuit to ensure access to the vast “Mountain Tract,” also known as the Taylor Ranch, the owners and heirs of many early homesteads, or varas, were identified by their connection with acequias. “Without water, there is no life,” says Norman Maestas, president of the San Luis-based Land Rights Council.
Many acequia properties were never officially incorporated, adding problems to use of the ancient ditches.
In 2009, largely at the urging of Costilla County water users, the Colorado legislature passed a bill “to promote and encourage the continued operations of acequias and the viabilities of historic communities that depend on those acequias.”
From the beginning, the congresos have drawn landowners and irrigators, agencies and officials, nonprofits, University of Colorado law students and others.
Law students have taken on the challenge of developing legal protection for the acequias.
Sangre de Cristo Acequia Association Program Director Sarah Parmar in a recent interview, said there is still much to be done about educating legislators and the public about acequias, while finding a place for the ancient systems in the state water plan.
This year’s congreso agenda provides knowledge heavily focused on acequia bylaws and conflicts to support the community in Colorado water conversations.
Parmar explained that, “we want everyone to understand what the purpose of bylaws are and that they can be used in a way to continue tradition. Bylaws are also a tool to help people coming into and returning to the community. More integration of bylaws into practice can prevent arguments.”
Those arguments come when water is scarce, she explained. Differing memories instead of bylaws are often recalled regarding the matter of sharing the resource.
The acequia association and the CU Law School partner through the Getches-Wilkinson Center to provide free or low cost legal assistance and educational materials to affected communities, helping establish their priority rights to water under Colorado law.
More Rio Grande River Basin coverage here.
From The Pueblo Chieftain (Chris Woodka):
Groundwater rules that could help certain farmers avoid some of the cost of water court applications are being considered for the Arkansas River basin.
“We’re not necessarily committed to this idea, but it may have benefits,” Water Division 2 Engineer Steve Witte told the Southeastern Colorado Water Conservancy District board Thursday. “The public needs to weigh in.”
The first chance to do that will be at a meeting at 1 p.m. Nov. 13 at the Lake Pueblo State Park visitors center auditorium.
The rules would apply to water replacement plans for post-1985 pumping, new uses for wells drilled prior to 1985 or new wells. They would provide an administrative alternative to water court, which can be too expensive for individual water users to navigate.
Witte reviewed the history of legal issues surrounding wells in the Arkansas Valley, including the 1972 attempt to reconcile surface and groundwater use, the Kansas v. Colorado case filed in 1985 that led to the 1996 well rules and the Simpson v. Bijou decision by the state Supreme Court in 2003 that took many well augmentation plans out of the hands of the state engineer.
“Decreed plans for augmentation costs have been so prohibitive in the South Platte that thousands of wells remain shut down to this day because of Simpson v. Bijou,” Witte said. There have also been instances in the Arkansas River basin, he said after the meeting.
On the same day that the Simpson v. Bijou ruling came, the state Legislature entered the Arkansas Valley well rules into law. In 2003, it also gave the state engineer’s office authority to approve five-year substitute water supply plans and to develop future rules.
Nearly 1,800 wells in the Arkansas Valley are covered by Rule 14 group augmentation plans under the 1996 rules, and those would stay in place even if new well rules are adopted.
The new rules could benefit a farmer who wants to use his own surface water rights to replace water pumped from wells, revegetation projects or even someone drilling a new well for a business, Witte said. At the same time, they would protect downstream water users and Colorado’s obligation under the Arkansas River Compact.
Witte acknowledged that there might an “augmentation gap” that makes finding sources of replacement water difficult, as discussed by the Arkansas Basin Roundtable recently. Permanently changing water uses still would require a trip to court.
But he said the purpose of the rules would be to give farmers a new tool to stay in business while complying with water law.
“We’re relying on data that were developed 30 years ago,” Witte said. “Life goes on and we need to think of ways to adjust and not be hampered by things already in place.”
More Arkansas River Basin coverage here.