Water rights for whitewater boating? Colorado says yes

It has been nearly two months since my last post on westernriverlaw. In that time I managed to finish a new article–more on that next time–and completed a few other more-or-less scholarly tasks. I also had the pleasure of speaking at the Natural Resources Law Teachers Lunch at the Annual Institute of the Rocky Mountain Mineral Law Foundation. And in preparation for that talk, I did some very important and relevant research while seated in my kayak, investigating the whitewater parks in several Colorado towns.

What allows me to claim whitewater kayaking as research? Because Colorado water law specifically provides that cities or local governments can obtain a special type of water right for whitewater kayak courses. Such rights were originally recognized as legitimate appropriations by the Colorado water courts, and are now authorized by statute. The law, which gives these rights the clunky name of Recreational In-Channel Diversions (RICDs), allows water to be appropriated for these courses as needed to provide a “reasonable recreation experience” … as if anyone ever goes kayaking to have a “reasonable” time on the river.

These whitewater courses are designed by engineers and constructed to provide whitewater features–waves and holes–that provide varying degrees of action at a range of flow levels. They provide more-or-less safe and reliable fun on the river, and more than two dozen of them have been built in cities and towns across Colorado, mostly in the high country. The courses are not unique to that state–they can be found on rivers in other western states, and even in Canada–but only Colorado specifically allows them to obtain water rights for recreational river flows.

How did Colorado–a state that takes its water law very, very seriously–come to recognize RICDs for kayak courses? Its Supreme Court laid the foundation in a 1992 case, in which it held that the City of Fort Collins could get a water right for wildlife and recreational purposes on the Poudre River as it flowed through town. The City was not making a conventional diversion of water, and opponents argued that the City was effectively seeking an instream flow appropriation, which in Colorado may only be obtained by a state agency. But the court held that Fort Collins was using structures in the river to control flows for recognized beneficial uses, making for a legitimate appropriation of water. Later, other Colorado cities–starting with Golden–relied on this precedent to obtain very large appropriations of water for kayak courses, successfully arguing that whitewater parks were economically important community amenities. Critics of these appropriations sought to have them outlawed by statute, but the Legislature refused to do so, codifying RICDs while imposing certain conditions and restrictions on these special water rights.

It is probably fitting that Colorado, with an economy that relies heavily on outdoor recreation, would be the first state to recognize water rights for this purpose. Whitewater rafting and kayaking are important summer economic activities in that state, especially in Western Slope towns that seek to attract visitors outside of ski season. For my part, I enjoyed whitewater parks on four different Colorado rivers this summer (the Animas, San Juan, Eagle, and Arkansas), and along the way I managed to drop a few coins in the local hotels, restaurants, and pubs. My research confirms that the whitewater parks in Durango, Pagosa Springs, Avon, and Salida do indeed provide a “reasonable recreation experience,” at least for this kayaker. And I may have to go back next summer, just to make sure they still do.

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Court takes Texas off the hook for whooping crane deaths

The 5th Circuit Court of Appeals decided a major case this week involving water management and the Endangered Species Act. The Court ruled that the water management agency of the State of Texas was not liable for “take” of endangered whooping cranes on the drought-stricken Aransas National Wildlife Refuge in the winter of 2008-09. The appeals court’s decision in The Aransas Project v. Shaw reversed a landmark victory for the environmental plaintiffs in the trial court.

The case involved several factual and legal disputes, but the ultimate issue was whether Texas, in permitting and managing water uses under state law, had caused the deaths of endangered whooping cranes and therefore violated the ESA. The lower court found that 23 cranes had died on the refuge during the 2008-09 winter, that their deaths were caused by habitat declines caused by low water levels in the Guadalupe Estuary (San Antonio Bay), and that Texas could have used its powers under state water law to prevent such low water levels. Thus, even though Texas itself was not the water user, it had violated the ESA prohibition on “take” of listed species. The court ordered Texas to seek an “incidental take permit,” by which the ESA allows limited harm to listed species caused by otherwise-lawful actions, but also provides certain protections for species and their habitats.

On appeal, the case turned on the issue of causation, and the 5th Circuit held that the lower court had gotten it all wrong. While it upheld the trial court’s disputed finding that 23 cranes had died on the refuge, the appeals court found that the causal chain between Texas’ actions and the dead cranes was too attenuated, and the harm was not reasonably foreseeable. The court saw a “number of contingencies affecting the chain of causation from licensing to crane deaths … all outside the state’s control and often outside human control,” including the actions of water users and the vagaries of weather. The court summarized its reasoning on p. 31 by stating, “Finding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far.”

The 5th Circuit’s decision may be disappointing for those who care about rivers and wildlife. But it is not all that surprising. Not only is the 5th Circuit Court of Appeals widely regarded as quite conservative (much like the states it covers: Louisiana, Mississippi, and Texas), but it had already put a hold (or stay) on the lower court’s order during the appeal process. In addition, the new decision could have been worse as precedent for future ESA cases involving water use. Notably, the 5th Circuit reached the merits of the case by rejecting some of Texas’ arguments, including one that the federal courts should “abstain” and leave the entire dispute to be decided by the State.

Does the Aransas Project decision mean that state water officials have nothing to fear from the ESA? No, although suits against a state for violating the “take” prohibition will probably always be legally and factually difficult to win. But a case involving, say, a fish kill caused by river dewatering, directly caused by water diversions that the state arguably had legal authority to restrict or prevent, would present a different case. That would be especially true if the fish kill were not a one-time event (as the 5th Circuit saw the 2008-09 crane deaths), and if the case were brought outside the 5th Circuit. But for now, it appears that the “take” prohibition will continue to have limited effect in the water management context, leaving the job of protecting listed species and their river habitats to federal agencies subject to ESA section 7.

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The greenback, the humpback, and the silverback: the feds’ value in water management

This past week I had the pleasure of speaking at the annual ABA Water Law conference in Las Vegas.  Soon after my talk, I found myself quoted in an AP story — proving that what happens in Vegas doesn’t always stay there.  The story quoted me as saying that the federal government plays a valuable role in water management as a “gorilla.”  I did say that, but I drew the gorilla metaphor from a speech given 30 years ago by then-EPA Administrator Bill Ruckelshaus.  More on that shortly, but first, a bit of context.

The ABA Water Law organizers wanted to set up a debate over the appropriate role of the federal government in managing the water of interstate river basins.  They asked me to represent the pro-federal side, maybe because my old Deference Myth article argued that the U.S. government didn’t (and shouldn’t) always defer to state water law. For the anti-federal side, they recruited David Aladjem, an experienced California water lawyer; Central Arizona Project attorney David Johnson moderated. For purposes of contrast and entertainment value, the organizers asked us to present extreme positions on each side of the debate.

One of my arguments was that the value of the federal role in western water was represented by three things: the greenback, the humpback, and the silverback. The greenback, of course, is money: federal dollars have been crucial in several respects, including building water projects and subsidizing wastewater treatment plants. The humpback refers to the humpback chub, an endangered fish species in the Colorado River system, symbolizing the national priorities–endangered species, water quality, and tribal water rights, to name three–that the states don’t necessarily share. And the silverback? That is a dominant male gorilla, which brings me back to that old quote.

Bill Ruckelshaus was the first EPA Administrator in the early 1970s, and was brought back to right the ship during the Reagan Administration. Years later, when Bill Reilly was Administrator and I was working for EPA in Washington, I read a quote from a 1984 speech by Ruckelshaus. He essentially said that state governments had the capability and the interest to control pollution, but to be effective in regulating their powerful industries, “they need a gorilla in the closet. And the gorilla is EPA.” That quote always stuck with me, partly because I liked the gorilla image, but mostly because the message rang true to me.

What does this have to do with water? I think the states, whatever their intentions, have the same trouble standing up to their politically powerful water users as they do their polluting industries. Federal oversight can help make sure the states don’t just serve their local interests at the expense of the environment, tribes, or downstream states. Thus, the federal gorilla is important in the water management context, just as it is in environmental regulation. So while the states generally take the lead in water allocation and management, the feds have their important roles too: providing greenbacks, protecting humpbacks, and being silverbacks.

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Agency discretion, water, & endangered species

A month ago, the Ninth Circuit Court of Appeals decided a case that will help ensure that the Endangered Species Act remains applicable to federal agency actions affecting western rivers. The case involved the Bureau of Reclamation’s renewal of certain water supply contracts from the massive Central Valley Project (CVP) in California. A panel of three judges from the same court had earlier held that Reclamation could renew these contracts without engaging in ESA “consultation” to determine the impact of renewal on protected fish species. When environmental groups challenged that decision, the Ninth Circuit granted “en banc” review (before a larger panel of judges) and held in NRDC v. Jewell that consultation was required.

Why is that decision significant? Simply put, no environmental law has had as much impact on western rivers–or created as much controversy–as section 7 of the ESA. This provision requires federal agencies to “consult” on the effects of their proposed actions on threatened or endangered species, and prohibits federal actions that would jeopardize the survival of listed species. Back in the 1970s, the Supreme Court said this language reflects Congress’ judgment that saving endangered species should be “the highest of priorities.” In that same case the Court stated that the language of section 7 “admits of no exception,” but in a later case, the Court essentially said that an exception does exist for actions that a federal agency has no choice but to take. Thus, federal agencies now have an escape hatch, allowing them to evade their section 7 duties if they can show that their actions are “non-discretionary.”

The Ninth Circuit’s original decision suggested that a federal agency could open this escape hatch rather easily, if its discretion to take an action were “substantially constrained.” The three-judge panel found that in renewing forty-year contracts for CVP water supply, Reclamation had no ability to change the quantity of water to be delivered, so consultation was not required. But the en banc panel unanimously rejected that reasoning, saying that consultation was required so long as the agency has “some discretion” to act for the benefit of listed species. And it said that Reclamation had some discretion to modify contract terms other than quantity–for example, by changing the price of water or the timing of deliveries–or even to refuse to renew the contracts at all.

But the most important questions about Reclamation’s discretion are about project operations, not contract renewals. Most of the agency’s water supply contracts are “repayment” contracts that do not need to be renewed, so the contracts themselves do not raise the exact issue involved in the recent Ninth Circuit case. For most projects, the question will be whether Reclamation has enough discretion in operations–that is, in storing and releasing water for irrigation and/or other purposes–that it can make changes for the benefit of listed species affected by those operations. The Ninth Circuit decision means that if Reclamation has some discretion in its operations, it must consult on them.

The discretion issue was the key focus of the Rio Grande silvery minnow litigation a decade ago. Since then the Supreme Court issued its 2007 decision that shed light on the exemption from section 7 for non-discretionary actions. I then wrote a long article, Dams, Duties, and Discretion arguing that Reclamation’s project operations should be viewed as discretionary actions for purposes of section 7 compliance. There will be more litigation, perhaps from the Middle Rio Grande, over the application of the non-discretionary exemption to federal water project operations. For now, the Ninth Circuit was right to keep the exemption narrow.

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Float on! Recreational stream access in New Mexico

If you want to boat or fish on a stream in New Mexico, do you have a right to float or wade that stream even if it flows through private lands?  The New Mexico Attorney General says you do.  In an opinion issued last month, the AG concluded, “A private landowner cannot prevent persons from fishing in a public stream that flows through the landowner’s property, provided the public stream is accessible without trespass across privately owned adjacent lands.”  In other words, if you can get to the stream without trespassing, a private landowner on that stream has no right to stop you from floating down (or wading up, if you’re into that sort of thing).

In finding a right to float, the AG’s opinion is pretty firmly anchored, so to speak, in New Mexico law.  New Mexico’s 1907 water code declared that “all natural waters flowing in streams” within the state belong to the public, and the New Mexico Supreme Court had relied on that law in a 1945 decision finding a right to float on a lake, even though the bed of that lake was private property.  But New Mexico law had little to say on whether a recreational user has the right to touch a privately owned streambed in the course of boating or fishing.  That “right to touch” is crucial for those who want to wade a stream, drag a canoe off a submerged bar to deeper water, or even bounce off the occasional rock in a raft or kayak.  In short, a right to float without a right to touch is pretty unsatisfactory–but so it is in my former state of Wyoming, since a state supreme court case 50+ years ago.

Supreme courts have seen this issue differently in different states.   In Colorado, the court rejected the right to float in a 1979 case called Emmert.  But five years later, the Montana Supreme Court found that a right to float did exist in that state.  More recently, in its 2008 Conatser decision, the Utah Supreme Court upheld the right to float and the right to touch (although the Utah Legislature partly undid that decision a few years later).  In predicting what New Mexico courts might do on this unsettled issue, the AG’s opinion emphasized Conatser without mentioning Emmert.  As for that Colorado rule, it is somewhat bizarre that a state with such a strong recreation-based economy and economically significant whitewater industry has taken such a restrictive view of stream access rights.

What makes this issue controversial?  It comes down to the collision between the “right” of the public to use rivers for recreation, and the “right” of private landowners to exclude people from their property.  Where land and water meet, the law can get pretty weird, and the clashes can get pretty bitter.  River users like anglers and paddlers (which I happily am) often have stories about ill-tempered, belligerent landowners.  Meanwhile, riverfront landowners (which I unfortunately am not) have their own stories about ill-behaved, boorish recreationists.  A little mutual respect would go a long way, but when everyone starts asserting what they’re sure their rights are, it can get hard to find any common ground.

I think the New Mexico AG came to the right conclusion on stream access.  The opinion correctly found that the right to float had been recognized in New Mexico since 1945; on the right to touch, the opinion takes a reasonable and modern view of the law, and I think it’s right on the policy.  But the opinion is not actually law, just an official legal opinion by the state’s top legal officer.  It would not be surprising if some landowners, and some county sheriffs, should decide that they will defend private property, come hell or high water … or in this case, low water.  If that happens, some angler or boater may get charged with trespass, and then we will see if New Mexico law really does recognize a right to float and a right to touch.  For now, the AG is saying it does.

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Dam operations and environmental reviews

The Bureau of Reclamation has always been known for two things: building dams, and harming the environment.  Of course, dam construction inevitably has environmental impacts, and so does dam operation.  The volume and timing of water storage and release affects water quality, recreation, fish and wildlife both above and below the dam.  With these kinds of impacts, one might think that federal dam operations would be subject to environmental reviews under NEPA, just as federal land management activities are.  But in fact, Reclamation rarely does NEPA reviews of “routine” dam operations, despite the serious impacts on downstream rivers.

I can understand why Reclamation–an agency with a big, important job and a limited budget–is not eager to do environmental reviews on project operations.  The NEPA process takes time, costs money, and presents litigation risks.  But the same is true for the Forest Service and BLM, and they routinely “do NEPA” on their actions.  Why doesn’t Reclamation?  Because the courts have allowed it.  In a 1990 case called Upper Snake River Chapter of Trout Unlimited v. Hodel, the 9th Circuit Court of Appeals held that Reclamation did not need to do an environmental review before reducing dam releases into the South Fork Snake River.  The court acknowledged that cutting the releases would harm the river’s trout fishery, but said that NEPA did not apply because Reclamation was simply operating the dam as it had since the time it was built.  Ever since the Upper Snake decision, the courts have esssentially exempted “routine” dam operations from NEPA, requiring an environmental review only when Reclamation proposes to change the operating regime.

So what?  The courts have always said that NEPA does not dictate results, only process, leaving agencies free to make environmentally harmful decisions.  But Congress and the courts have also seen the value in environmental reviews which identify alternatives to an agency’s proposed action, assess the impacts of the proposal and the alternatives, and identify mitigation measures.  Moreover, the NEPA process provides an opportunity for public involvement and participation in agency decision-making that would otherwise involve only a handful of stakeholders.  Developing alternatives, providing information, engaging the public … these things are basic good government, and they could help Reclamation develop long-term plans for operating projects to serve a variety of uses in wet, average, and dry years.

The 9th Circuit recently issued a decision that held, among other things, that Reclamation must do a NEPA review when it accepts and implements a “reasonable and prudent alternative” under the Endangered Species Act.  What is bizarre about that holding in San Luis & Delta-Mendota Water Authority v. Jewell:  routine dam operations are normally exempt from NEPA despite their impacts, but when Reclamation proposes a change to reduce environmental impacts, NEPA is triggered.  The court relied on Upper Snake, and never indicated that its earlier decision might be wrong.  But it also emphasized that NEPA applies “to the fullest extent possible,” that there is no statutory exemption for this type of agency decision, and that Reclamation’s operating decisions have major importance for people and ecosystems.  All valid points, and had the court applied those principles–and the Council on Environmental Quality’s NEPA rules–faithfully in the Upper Snake case, the result would have been different.  (I made this argument, and suggested that environmental reviews could be beneficial in this context, in a 2011 article on Reclamation and NEPA).

I hope the day is coming when the 9th Circuit reconsiders its ruling in Upper Snake.  NEPA reviews certainly will not resolve all the environmental problems associated with Reclamation’s dam operations.  But I do think the NEPA process has value in the context of long-term operations plans, requiring the agency to generate alternatives, involve the public, and develop ways to mitigate impacts.  In a West where the climate is changing, water uses are changing, and values are changing, I believe NEPA can help Reclamation make better decisions about the future of its projects.

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Remembering Prof. Joe Sax

Joe Sax died this week.  Joe was a longtime law professor at Colorado, Michigan, and UC Berkeley.  He was a prolific and influential scholar on water law, public lands, and the environment; he is considered one of the intellectual founders of American environmental law.  If you follow natural resources law you have probably heard his name, and may well have read some of his books or articles.  If you are lucky you not only know Joe’s work, but also got to know him personally.

I was fortunate to be a student of Joe’s at Michigan, although not fortunate enough to have him stay there until I graduated.  During his last semester in Ann Arbor I took his Public Lands Seminar and enjoyed it greatly; it was a challenging course but I learned a lot, and every week I was grateful for the chance to learn that subject from a true giant in the field.  After he left Michigan for California, our paths crossed many times over the years, and he was always very gracious to me both before and after I began teaching.

Joe wrote many important works, but might be best known for a landmark law review article he wrote at the dawn of modern environmental law, before Congress passed key statutes like the Clean Water Act.  The article focused on the potential to use an ancient legal principle called the Public Trust Doctrine as a tool for courts to protect natural resources.  It was a bold and innovative idea that caught on, especially in California; that state’s supreme court issued a decision in 1983 that not only protected scenic Mono Lake from being destroyed by Los Angeles’ water diversions, but also established the Public Trust Doctrine as a counterbalance to the Prior Appropriation Doctrine in California water law. 

Joe was revered by environmentalists and scholars, but not so much by the “water buffaloes,” the old-school water users and managers who still hold great power over water in the West.  During one law school summer I clerked for a firm in Denver that had many such clients.  The patriarch of the firm was an elderly man who was one of Colorado’s great water lawyers of the 20th century; when I met him, he asked where I was going to law school.  I told him, expecting him to respond with some pleasantry about Michigan being a fine school.  Instead he blew his stack.  “Michigan?!  Isn’t that where that Joe Sax teaches water law?!” he spat.  Taken aback, I said that Joe had left Michigan and I had instead taken water law from Robert Abrams.  But the old water buffalo had launched into a major tirade:  “The very idea of an environmentalist teaching water law!!”

Fortunately for me, I joined a different firm when I graduated, and learned a lot about Colorado water law in my brief time there.  I later spent ten years working on water issues in the environmental community.  Now, perish the thought, I teach water law myself.  In doing so I hope I can inspire students in the way Joe did, and I would love my writing to be half as influential as his.  Thanks for everything, Joe.  We’ll miss you.

 

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What Interior’s new #2 could mean for western rivers

Important news for western rivers out of Washington, DC this week:  the Senate voted unanimously to confirm Mike Connor as Deputy Secretary of Interior.  His confirmation was expected, but unanimity is still remarkable.  Senate Republicans often take issue with President Obama’s natural resource policies, and hold up his nominees for reasons that may have nothing to do with them, or with the agency.  (Connor’s confirmation was delayed for months because one GOP senator had issues with the White House over the Benghazi attack.  The Interior Department gets blamed for many things, but Benghazi has never been one of them.)

The Deputy Secretary’s job is highly significant because it is the #2 post at the most important agency for western rivers.  One of Interior’s key components is the Bureau of Reclamation, which Connor led from 2009 until now; Reclamation operates dams, delivers water and generates hydropower in 17 western states.  Interior also includes such agencies as the Bureau of Indian Affairs (BIA) and the Fish & Wildlife Service (FWS), to name just two.  Interior often plays multiple roles in a particular river basin.  In New Mexico’s Middle Rio Grande, for example, Reclamation delivers water for Albuquerque and for irrigation; BIA works to ensure that six Indian Pueblos in the basin get the water they are due; and FWS runs the magnificent Bosque del Apache National Wildlife Refuge, while also overseeing Endangered Species Act efforts to protect the silvery minnow and willow flycatcher.

Connor may be uniquely qualified for the Deputy Secretary gig–and I do not say that just because he is from New Mexico.  He has strong Native American connections, with a grandfather who was a leader of Taos Pueblo.  He is an engineer, and also an attorney who worked on water issues for Interior earlier in his career.  He was a key Senate staffer on water and energy issues, and one of his major accomplishments was crafting the 2009 SECURE Water Act.  And he earned high marks in his four-plus years as Commissioner of Reclamation.  His experience will be especially important now because his boss, Interior Secretary Sally Jewell, came into the job with basically no background in government. 

I see Connor’s new position as good news for western rivers.  The Supreme Court wrote in 1983 that “it may well appear that Congress was requiring the Secretary of the Interior to carry water on at least two shoulders” in serving both farmers (through Reclamation projects) and tribes.  In fact, it is worse than that, because Interior also has responsibilities for meeting the water needs of national parks, wildlife refuges, and endangered species.  Traditionally, Reclamation and its irrigators took priority–as illustrated by the fact that the top floor of Interior headquarters in DC is occupied by the Commissioner of Reclamation, not the Secretary.  But Connor understands the importance of Interior’s broader mission, and in his role as Deputy Secretary he can ensure that the agency carries water on more than two shoulders.

Still, Connor’s promotion has the potential to be a mixed bag, because he leaves behind big shoes to fill at an incredibly challenging time for the Bureau of Reclamation.  Most of the West, especially California, is locked in a punishing multi-year drought.  There are increasingly serious long-term supply shortfalls in key basins such as the Sacramento-San Joaquin, Rio Grande, and Colorado.  And Reclamation’s authorities are not well tailored to tackle 21st century challenges, especially in environmental restoration (as I wrote in my 2011 NewAdventures article).  So there is a lot riding on the Administration’s choice of Connor’s successor.  The new Commissioner needs to be someone who can lead Reclamation in resolving these big challenges, and becoming a more positive force for western rivers.

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The politics of drought relief

This past week, 15 members of Congress sent a letter to House Natural Resources Committee Chairman Doc Hastings, R-WA, noting that over half of the contiguous U.S. is in moderate to severe drought, and requesting “a bipartisan hearing on the drought impacts across the nation.”  The letter expressed concern about three kinds of impacts: reduced water and power deliveries, wildfires on public lands, and harm to wildlife and fisheries.  The good news is that 15 House members are concerned enough about the ongoing drought to request a hearing on it, and that they recognize fish and wildlife as major victims.  The bad news is that all 15 are Democrats, so we shouldn’t expect a hearing anytime soon.

House Republicans did, however, pass H.R. 3964, the Sacramento-San Joaquin Valley Emergency Water Delivery Act.  It was a very partisan vote, with only 2 R’s voting no and 7 D’s voting yes.  The bill seeks to ensure that farmers in California’s Central Valley get the water they believe is theirs, while rolling back some measures to protect and restore fish and wildlife.  A key part of the bill would overturn a major legal settlement on the San Joaquin River, approved by Congress in 2009.  This bill basically reflects the view that fish and wildlife–or rather, efforts to ensure adequate water for fish and wildlife–actually cause drought from the farmer’s standpoint.

Democrats blasted the bill, not surprisingly, and said it would go nowhere in the Senate.  The White House issued a veto threat, raising a number of fundamental concerns with H.R. 3964 and suggesting that Congress should focus its attention on legislation that would actually do some good in addressing California’s drought.  The White House specifically mentioned reauthorizing the an obscure law called the Reclamation States Emergency Drought Relief Act. 

Originally enacted in 1991, the Drought Relief Act  gives the U.S. Bureau of Reclamation power to take certain actions in drought-stricken areas of the West.  In dry times like these, the law has some potentially useful provisions: it authorizes the Bureau to take drought relief measures such as drilling wells, providing temporary water supplies, or even making loans for conservation projects.  It also allows the Bureau to provide water for fish and wildlife habitat, and specifically directs the Bureau to examine how it can carry out the law in a way that helps mitigate drought impacts on fish and wildlife.  Key provisions of the law had expired in 2012, but Congress revived them in last month’s big federal spending bill, extending them into 2017.

So in renewing the Drought Relief Act, this Congress actually did something right?  Yes, but there is more to do, and the ball is now in the Bureau’s court.  As I wrote in my 2012 DoubleWhammy article, the Bureau has never come close to making the most of its Drought Relief Act authorities.  With most of the West in drought, and key areas of California, Colorado, Idaho, Nevada and New Mexico in extreme drought or worse, the time is now to use all the available tools.  And the Drought Relief Act is current law, so the Bureau does not need to wait for new power from Congress.  And that’s a good thing, because bipartisan action on drought relief is not in the forecast.

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February 8, 2014 · 10:48 pm

Is Colorado violating the Endangered Species Act?

Water issues on the Rio Grande just got more interesting.  The environmental group WildEarth Guardians recently gave Notice of its intent to sue the State of Colorado for violating the Endangered Species Act.  Guardians alleges that Colorado is violating ESA section 9, which makes it illegal for any person to “take”–basically, kill or harm–an animal protected by the ESA.  The key species involved here is the Rio Grande silvery minnow, the last wild population of which lives in the Rio Grande in central New Mexico.

Guardians argues this:  silvery minnows need certain flows in the Rio Grande, especially high flows in the spring, to survive and reproduce.  But flows in the river have been inadequate for the minnow in recent years, largely because water uses within Colorado take too much water out of the river, especially in dry years.  The letter alleges that Colorado water uses (for San Luis Valley irrigation) have taken as much as 98 percent of the natural flows of the Rio Grande at any given time, and the resulting low flows have taken silvery minnows.  And because the State of Colorado administers water rights under state law, the State is responsible for that take, violating the ESA.

This would be an unusual case, but not a unique one.  Most ESA cases involving harm to protected species are brought against federal agencies, under a different part of the law applicable only to them.  There have been some similar cases to this one, however, where courts have held that state or local governments caused take.  Notably, a federal court in Texas recently found that inadequate water management by the State of Texas took endangered whooping cranes by drying out their winter habitat.  (That decision has been stayed and is now on appeal; watch this space for further developments.)  These cases establish that state governments may violate section 9 if they allow private activities that result in take.

That said, this case would not be a slam dunk–more like a contested 3-pointer.  Guardians would have to overcome serious factual and legal challenges to prevail against Colorado.   On the facts, they would have to show that water use activities within Colorado caused actual harm to actual minnows miles downstream in New Mexico.  As to the law, they would have to show that Colorado has enough power or control over those water uses to make the State (rather than the users themselves) responsible for any take they cause.   Guardians could expect a fierce battle on both points.

Colorado is likely to raise another argument:  that its water uses are fully legal under the Rio Grande Compact, a Congressionally-approved interstate agreement that allocates Rio Grande water among the States of Colorado, New Mexico, and Texas.  Such compacts impose obligations on states that are enforceable in the Supreme Court.  Compacts can limit water uses in an upstream state, even if those uses would be legal under the laws of that state.  But can the ESA limit water uses in the same way, even if those uses would be legal under a compact?  A case against Colorado may answer that question … or it may not.  If Guardians can’t show that Colorado violated the ESA, there is no conflict with the Rio Grande Compact, and no need to decide if one trumps the other.  Colorado’s uses under the Compact would be safe; the minnow might not be so fortunate.

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