WaterWired

Campanastan Brings The 'New Great Game' to Durham, NC

 How can that be? And where is Campanastan?

I am at the Universities Council on Water Resources (UCOWR) - National Institutes for Water Resources (NIWR) Annual Conference in Durham, NC where I am presenting a talk on the 'New Great Game' in the Kura-Araks Basin in the South Caucasus.

Here is the pdf of the PowerPoint by myself and former student Berrin Basak Vener:

Download Campana_Vener_UCOWR_NIWR_2008_Oral_Pres.pdf

And here is the paper Berrin and I wrote for the Proceedings:

Download vener_campana__ucowr_niwr_2008_paper.pdf

Enjoy!

"One death is a tragedy; a million is a statistic." -- Joseph Stalin (born in Gori, Republic of Georgia)

July/August 2008 Southwest Hydrology: Endangered Species Act

The new issue of Southwest Hydrology features the Endangered Species Act.

From the WWW site:

The Endangered Species Act (ESA) is increasingly forcing water managers to maintain a quantity and quality of water suitable for certain species and their habitats. This raises a number of challenges, not the least of which is determining how much water a species or habitat actually needs. In many situations, conflicts between ESA and other laws means that the loss of some species or habitat is unavoidable, but ESA has provisions for that too, such as restoring habitat or creating it elsewhere. ESA’s reach has extended far beyond species, however, in being a catalyst for developing water management plans for a wide variety of stakeholders, as illustrated in these feature articles.

Featured articles:

• ESA and Water Projects in the West - An Overview
• Managing Multiple Species in the Klamath
• Raising Endangered Fish in New Mexico
• The Edwards Aquifer: ESA-Driven Management
• Weaving Disparate Threads: CWA and ESA
• The Lower Colorado River Multi-Species Conservation Program
• How Much Water Do Stream-Dependent Species Need?

As always, download the entire issue or individual articles free of charge.

The next issue will feature Big Water Transfers. Oh, boy! I hope they mean REALLY big!

“When one tugs at a single thing in nature, he finds it attached to the rest of the world." -- John Muir

Mayor Marty Returns From The Dark Side

Albuquerque Mayor Martin J. "Marty" Chávez, shown here with his trusted advisor El Perro Negro de Alcalde Marty, was one of the co-authors of a non-binding resolution passed by the U.S. Conference of Mayors urging the mayors to cease providing bottled water at official municipal functions.

Listen to Mayor Marty discussing the resolution in an interview with NPR's Scott Simon.

I'm glad to see that Mayor Marty has returned from the dark side.

Say what?

Normally, I wouldn't care much about what Mayor Marty does these days since I left the Duke City in 2006. But his sponsorship of the resolution reminded me of a time six or so years ago, when I was watching the Mayor hold forth on his show on the local access cable channel. He was at his desk, drinking bottled water. Since the show was a taped rerun, I couldn't call, but emailed him, mildly scolding him for setting a poor example by drinking bottled water when Albuquerque had such good tap water.

To my surprise, he responded a few days later. After a few sentences of blather, he concluded: "For what it's worth, there was tap water in the bottle."

Perhaps I was being unfair, or perhaps because I knew Mayor Marty, I did not believe him.  

But all is forgiven, Your Honor, for you have seen the light. 

"Albuquerque: Next 17 Exits" -- slogan suggested during Mayor Marty's first term

"Good for you, Albuquerque!" -- slogan selected by Mayor Marty

Ray Walker on Exempt Wells and Prior Appropriation

Ray Walker, a retired water rights analyst, frequent commenter to this and other water blogs, and who is fond of mentioning a one million acre-feet "Source" of water available to Nevada or California that will not adversely affect the environment or other water rights, asked if he could post an extensive comment to my 18 July post on the court ruling on exempt wells in New Mexico. I agreed, and after seeing his post, decided that it would be better to post it as a regular item as opposed to a comment. He describes how exempt wells (not requiring a water right) essentially subvert the prior appropriation system of water rights.

As always, your comments are welcomed.

Michael

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Exempt domestic wells are wells for domestic use which are administered by the State Engineers as if the law that pertains to the priority system and the doctrine of prior appropriation did not exist. There was a presumption made by the State Engineers and/or the legislatures that domestic well use did not damage the prior vested water rights of others.  It was considered non-damage because the domestic well for "in-house use only" was generally for 350 gallons per day ( 0.39 AF/year) and the actual amount consumed was only 10%.  The other 90% returned to the stream and aquifer of the well.

Water has always been in short supply in the southwestern United States.  Upon their arrival, the early settlers began to appropriate the available water supply by digging ditches and building ponds.  They did so with the understanding that in times of shortage the very limited supply would/could be relied upon because they were the ones who took the first risks and put in the necessary effort to divert the water and put it to the first beneficial use.

The early state constitutions and case law confirmed this pioneer doctrine of "first in time, first in right".  This prior appropriation doctrine is by law to be administered by the respective State Engineers.  Each of the water rights perfected by the early settlers was advertised and proper notice was given to all who might be affected that each claim was for an exact date (appropriation date) at a specified location, in a specified amount, from a specific source and for specific uses.  Each of these water rights was reviewed and argued as to validity and eventually confirmed by the Court and/or the State Engineers. Many of the good water rights date back to the 1870's and before. This is very similar to the early patents on the land where the earlier settlers received their land with the assurance it was theirs to own, develop and eventually sell or inherit.

When there is not enough water to satisfy everyone with a water right, the State Engineer is by law required to shut off the later junior water rights to satisfy the earlier senior water rights. You will receive water more often if you have a water right with an appropriation date of 1870 than one with a date of 1900 or after....let alone one with a date in the 1960s.

By the 1960s, it was realized that many people had drilled wells and were using the water for domestic purposes. The State Engineers allowed this to happen because they did not want to administer ground water...only stream water. 

Domestic well use by law may be in-house use only, livestock and/or the irrigation of small specified amounts of lawn and garden. Each of these three uses may be a different type of domestic well. 

Well permits for such uses were eventually required by the State Engineer. Because the State Engineer did not want to do his duty and shut off all of these thousands of domestic wells, they were declared by the State Engineer and/or the State legislature to be "exempt from the priority system" and could continue to pump water even when the 1870 water rights were short of water!

In many places, proper notice about these new wells was never given to the senior water right owners and the seniors were never given an opportunity to argue in a Court of law or before the State Engineer that the wells were tributary to the streams sources that supplied the senior water right owners with their very life blood for irrigation and livestock watering purposes. New Mexico was one of these places.

Imagine if  your family had owned a ranch that had very little water, but it dated back to the 1860s of the Civil War. How would you feel if a new subdivision sprang up next door and began taking water that was probably tributary and part of the water you depended upon to water your cows, irrigate your fields and feed your family?  This has been the "taking" for more than 70 years and little has ever been done to protect these early water right owners.

This exempt well situation was so misadministered by the State Engineers that they allowed people who arrived  after the 1960s to capture and divert even the spring water that was part of the source relied upon by the senior water right owners. The springs were often declared as wells. This was especially true in Colorado.

For the most part, water rights in the West are real property rights, just like land. They can be bought and sold just like land, except when moving a water right or changing its use, proof must be provided to the State Engineers, the Courts  and potentially damaged parties that the change of water right requested will not damage the water rights of anyone else.  Changes of water rights are very complicated and it is very difficult to prove that damage will not occur.  The water right cannot be changed if there is any unmitigated damage to others.

Judge Robinson's recent ruling in New Mexico finally addresses the issue in New Mexico. Other states may have similar situations.  Colorado is probably not one of them.  As a Water Referee for the District Court, I approved numerous Water Court applications for exempt domestic wells because the well owners were required by law to give proper notice to all water users that they were requesting exempt domestic wells.  All other water users were given every opportunity to be heard, if they felt they were damaged.  None ever objected!

Exempt well owners without water rights are not necessarily given status to object to new water right applications that might damage their domestic wells. The reason this is a grey area is because on one hand they are asking for an exemption from the priority system and on the other as protestors claiming potential damage and asking that the priority system protect them.

This is a very general analysis of the domestic well situation. Specific situations may definitely vary in the different states with exempt domestic wells.  There are also exempt commercial wells in some states. Water rights can be extremely complicated and even contradictory because sometimes  the judges made strange rulings. We are bound by these Court decisions until they are changed by the Court. What makes America great is that we are a country of laws. Keep that in mind when you see someone breaking the law.... taking the property of others, especially their water, without due process should never be allowed. I agree that Judge Robinson has affirmed this principle. 

Domestic Wells in New Mexico: On Notice?

New Mexico's law allowing the drilling of domestic wells without a permit or water right - so-called 'exempt' wells - may be in jeopardy.

Last week, a judge struck down the law as it applied to Luna, Hidalgo, and Grant counties in the southwest portion of the state. Although it applies only to three counties, it is quite a stunning decision; read the editorial from the Santa Fe New Mexican lauding Judge J.C. Robinson's ruling.

Here is a news story from the Albuquerque Journal.

There are roughly 130,000 of these wells in New Mexico. The state allows each well to pump about 3 acre-feet per year, or about 2,700 gpd (gallons per day), or about 2 gpm (gallons per minute). The exact amount pumped by each well is unknown, since the wells are unmetered and owners do not have to report pumpage. Some studies indicate that the average domestic well uses under 1 acre-foot per year, perhaps below 0.5. The USGS's Circular 1268 estimates 350 gpd, or about 0.4 acre-feet per year for a family of four.

Upshot: it's an unknown in the state's water budget.

I remember having people in New Mexico tell me, with a straight face, that they were not part of the state's water problem because their well "only pumped a few gpm". Yeah, yours and 130,000 others!

Here in Oregon exempt wells for homes are allotted up to 15,000 gpd - that is almost 17 acre-feet per year. I don't know of any Western state that allows as much. Idaho allows a maximum diversion volume of 2,500 gpd; Washington specifies a rate of 5,000 gpd (maximum). A bill to lower the amount in Oregon was defeated last year. The exempt well issue is one that many Western states dread facing. Utah requires domestic wells to obtain a water right and allots each 0.75 acre-feet per year (670 gpd; 0.50 gpm). It can deny permits for domestic wells.

Back to the New Mexico ruling. Here is part of the editorial:

The judge was dealing with a case filed by Horace and Jo Bounds, who argued that four dozen wells punched into the ground near their irrigated farm were drying up the place — and infringing on their water rights, which go back to the 19th century.

The wells were to supply water to houses near the Upper Mimbres River. Permits to drill them have been seen as some kind of basic homeowners' right; put in your application with the State Engineer's Office, which is in charge of water in New Mexico, and the folks there have to issue your permit.

Santa Fe and other local governments lately have been putting their feet down on this tradition too long treated as supreme law, using home rule to limit domestic wells where there's municipal water available. But out in the boonies, the water rush goes on. After all, families have got to have water, don't they?

Well, yes — but what're they doing turning rural areas into ranchettes and bedroom communities? Especially if everybody there is putting a straw into the same soda bottle?

That last paragraph is important. For years, developers have been putting up subdivisions in which the homeowners are required to drill their own wells, or perhaps share an exempt well with a neighbor or two. The developer knows the state can't turn them down. Often times the developer even has water rights but is 'saving' them, perhaps as an investment. I once had a New Mexico state senator unload on me (displacement behavior, as I was the only hydrologist around) about this pernicious practice in his district.

More on the ruling:

It doesn't work for the Bounds and other irrigators to sit around waiting until they're out of water, said the judge. "When the water is gone, it will be too late."

That, he said, is a violation of due process that senior rights holders have coming. The State Engineer, he declared, can't treat the domestic-well process differently than other types of water rights applications.

John D'Antonio, the intrepid State Engineer, knew something like this was going to happen sooner or later. He had been urging the legislature for years to give him the authority to deny domestic well permits. But each session the bill would go down to defeat. I once had a colleague tell me that D'Antonio already had the administrative authority to do so, but wanted statutory authority so the legislature couldn't hammer him when he started to shut wells down. A good strategy, knowing whimsical lawmakers.

Why he wanted the power to do so sprang mainly from the events in the Pecos River Basin in eastern New Mexico -- the vertical line on the above map, emanating near Santa Fe and flowing down through Santa Rosa and Carlsbad and into Texas, to meet the Rio Grande. New Mexico, under the Pecos River Compact, is required to provide Texas with a certain amount of water. John, and others before him, felt the unpermitted domestic wells in the PRB were "stealing" water from the river (or impacting permitted water users) thus impairing the state's ability to meet its compact obligations. And if New Mexico could not meet its obligations, Texas could sue. It should be noted that every time Texas has sued New Mexico over Pecos or Rio Grande water it has won.

Not everyone buys D'Antonio's arguments. But I think he needs the authority. If he got it, he would need more staff to enforce it. That's where the legislature could derail him - give him an unfunded mandate.

By the way, if you want to read a great book about the Pecos River Compact, get Professor G. Emlen Hall's High and Dry: The Texas-New Mexico Struggle for the Pecos River. Em is a former colleague of mine from the University of New Mexico. He is a gifted storyteller.

If Robinson's ruling wasn't enough of a blindside, check out this zinger from the editorial:

This case is only one blow to D'Antonio and his office. Sitting in the state Court of Appeals is another water case — and a friend-of-the-court brief calling into question nearly every basic premise about water law. More about that from this corner in a few days.

I can hardly wait!

"Every calculation, based on experience elsewhere, fails in New Mexico." -- Gen. Lew Wallace, New Mexico Territorial Governor, 1878.