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  1. 1. ENVIRONMENTAL REQUIREMENTS OF ALLOCATING WATER IN THE WESTERN U.S. John R. Zimmerman Reno, Nevada parsonsbehle.com 59th Annual Rocky Mountain Mineral Law Institute
  2. 2. 2  Public ownership of water resources – Acquisition of right to use  The Prior Appropriation Doctrine – Priority System, “First in time, first in right” – Federal Deference to State Law – Basic Elements • Intent to Appropriate • Diversion of Water • Beneficial Use of Water  Substantial Federal Land Ownership Legal Setting
  3. 3. 3  Historically given very little consideration – Allocation focused on water availability, impacts to existing water rights, and beneficial use  Rising significance – Heightened public awareness of, and increased importance placed on, environmental values – Increased knowledge and analysis of impacts Environmental Values and Water Law
  4. 4. 4  Specific considerations  Public interest review  Additional considerations regarding interbasin transfers  Recognition and protection of instream flow water rights  Reservation of unappropriated streamflow Water Law Environmental Requirements
  5. 5. 5  Whether unappropriated water is needed for preservation of fish and wildlife or recreation  Effect of new appropriation or change of existing right on water quality, fish, wildlife, and habitat Specific Environmental Considerations
  6. 6. 6  Part of most states’ water laws  Broad and often undefined factor  Initial focus on maximizing water use and protecting existing water rights  Few states provide specific guidelines – Idaho – Alaska – North Dakota Public Interest Review
  7. 7. 7  Primary focus to protect the “basin of origin” from social and economic harm caused by out of basin water diversions  Some states prohibit interbasin transfers if they are shown to adversely affect fish, wildlife, or other instream uses Interbasin Transfers
  8. 8. 8  Recognize water rights for fish and other aquatic species  At odds with the traditional prior appropriation doctrine requirement of a physical diversion  Instream flow right systems – Private v. state ownership – Applicable to all rights or limited to new appropriations or changes to existing rights Instream Flow Rights and Reservations
  9. 9. 9  Effect on other water rights – May fully appropriate a stream system – Minimum v. optimum stream flows – Greater sensitivity to changes to existing rights • Colorado Water Cons. Bd. v. City of Central, 125 P.3d 424 (Colo. 2005)  Reservation of water for fish, wildlife, habitat preservation, recreation, and aesthetic values Instream Flow Rights and Reservations (cont’d)
  10. 10. 10  Mainly federal environmental protection statutes – Clean Water Act (CWA) – National Environmental Policy Act (NEPA) – Endangered Species Act (ESA)  State Equivalents – California Environmental Quality Act – Montana and Washington Environmental Policy Acts Other Environmental Laws’ Impacts On Water Use
  11. 11. 11  CWA cannot override state water allocation authority, but can impose water pollution controls that affect water use – Minimum stream flows to protect water quality – Allows incidental effects on water rights if necessary to carry out CWA interests  EPA veto authority over Section 404 permits Clean Water Act
  12. 12. 12  Impose procedural requirements  Triggered only when a federal authorization is required, except in states that have enacted similar laws – California – Montana – Washington  Procedural requirements often lead to greater scrutiny, analysis, and public awareness of water allocation decisions, which can indirectly influence water allocation and use – Northwest Area Water Supply Project Environmental Policy Laws
  13. 13. 13  Considered to have the highest potential to impact water use  Section 7 consultation – Agency must consult with Fish and Wildlife Service if proposed action may affect a listed species – Water diversions may be restricted or prohibited if they are likely to adversely affect a listed species  Section 9 prohibition against taking a listed species – Mandates protection of threatened or endangered species regardless of cost or economic impacts – Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) – San Francisco Bay/Sacramento-San Joaquin River Delta Endangered Species Act
  14. 14. 14  Origin and Traditional Framework – Derived from Roman Law and English Common Law – Recognizes common property right in air, running water, and navigable waterways  Traditional Public Trust Doctrine – Restraint on a state’s ability to relinquish title in public property to private parties • Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892) – Based on state law • PPL Montana LLC v. State, 132 S. Ct. 1215 (2012) – Safeguards public access for navigation, commerce, and fishing – Recognized by several western states Public Trust Doctrine
  15. 15. 15  California’s expansion of the doctrine to water resources – National Audubon Society v. Superior Ct. of Alpine County, 658 P.2d 709 (Cal. 1983) – Restricted water diversions under water rights issued in the 1940s to protect public trust uses in Mono Lake – As applied to water rights, doctrine prohibits acquisition of a vested right that may be a detriment to public trust resources • Fish and wildlife • Recreation • Ecological resources – Further expanded to protect water quality in California Public Trust Doctrine (cont’d)
  16. 16. 16  Exception to federal deference to state water law – Federal reservations impliedly reserve a sufficient amount of water to fulfill the purpose of the reservation • Initially limited to Indian reservations • Expanded to other federal reservations  Impacts water allocation if federal reservation requires the entire source of supply or there is a significant hydraulic connection to other water sources  Federal reservations are difficult to quantify and are not known with certainty until they are adjudicated  Priority date is the date of the federal reservation, which in many cases pre-dates other water uses Federal Reserved Water Rights
  17. 17. 17  Potential to substantially affect water use – Red Rock Valley Ranch, LLC v. Washoe County, 254 P.3d 641 (Nev. 2011) • Upheld denial of county special use permit to construct water importation facilities – Washington State Growth Management Act • Requires “sufficiently rigorous” county review of a project’s proposed source of supply  Increases the need to recognize and evaluate local laws and county sentiment toward water development and use Local Land Use Laws
  18. 18. 18  Few states impose specific environmental requirements on water allocation decisions, but such requirements can be significant  Federal and state procedural requirements increase public awareness and analysis of water use, which can indirectly influence water allocation  Federal and state environmental protection statutes can substantially affect water use  Public trust and reserved water rights doctrines and local land use laws must be analyzed during project development to evaluate their risk of adversely impacting a project Conclusion
  19. 19. 19  John R. Zimmerman jzimmerman@parsonsbehle.com Thank You