This presentation is quite similar to the one I presented at the 2018 AWRA Summer Specialty Conference in Fort Worth. It does have several extra slides. I thought I would have more to report but I don't.
Note: this was updated on 13 November 2018 - several new slides.
PPT: Download CAMPANA_AWRA_Winters_8Nov2018
PDF: Download CAMPANA_AWRA_Winters_8Nov2018
Here is a description of the topic:
Mention the Winters Doctrine to a certified WaterWonk and you're likely to get this response: 'Oh, yeah, I know that one. It's the Supreme Court decision that reserved water rights for federal reservations even though the rights were not specifically granted when the reservation was created.' That's a pretty good definition, although I suspect a few of my legal friends are no doubt rolling their eyes. Many people interpret the word 'reservation' to mean 'Native American reservation' but the term refers to any federal 'reservation' such as a national monument, park, etc.
So how does an article about the Wintersdoctrine and its promise of water rights find its way into an issue on transboundary groundwater? Let me explain, starting with a little bit of repetition.
One of the most important U.S. Supreme Court water decisions is the 1908 Winters v. United Statesdecision in which the court established the federal reserved water rights doctrine. This doctrine, often associated with Native American reservations but also applicable to other federal lands such as national monuments, holds that when the federal government set aside lands it implicitly reserved sufficient water to enable the reserved lands to be used as intended. These reserved rights, or Winters rights as they are frequently called, have traditionally pertained to surface water and not to groundwater. That is about to change.
In the Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Districtcase the tribe sued a number of California water agencies for adversely affecting the quality and quantity of its groundwater by over-pumping a shared aquifer. The tribe further asserted that it had Wintersrights to the groundwater beneath its reservation. The Ninth Circuit Court of Appeals ruled in the tribe's favor, stating that the Wintersdoctrine applies to groundwater as well as surface water. Furthermore, the U.S. Supreme Court declined to hear the case, so the Ninth Circuit Court's decision stands. At this juncture the decision applies only to the states covered by the Ninth Circuit: Alaska, Hawai'i, Washington, Idaho, Oregon, California, Nevada, Arizona, and Montana.
Why is this decision important? Ten states - Nevada, Arizona, Idaho, Nebraska, Arkansas, Wyoming, North Dakota, South Dakota, Texas, and Wisconsin filed an amici curiaebrief supporting the water agencies' position. This action indicates the concern the states have about the ramifications of this decision vis-a-vis their primacy when it comes to water law and allocation of water within their borders. Groundwater underlying tribal reservations could be treated as a transboundary resource subject to water law different from the states.
Furthermore, two aspects of the case are still being litigated - the tribe's claim to ownership of its aquifer's pore space (storage) and degradation of its groundwater quality by the water agencies' use of inferior Colorado River water to recharge a aquifer they share with the tribe.
The pore space issue is particularly important, since, should the tribe prevail, ownership of pore space might interfere with states' or water agencies' efforts to implement managed aquifer recharge (MAR) projects, since the water might enter pores owned by tribes and possibly pollute the tribes' groundwater. It should be noted that the Coachella Valley Water District implements MAR. Its Thomas E. Levy Groundwater Replenishment Facility graced the cover of the September 2017 Water Resources IMPACT. I suspect that its use of Colorado River water might be a reason for the tribe's water quality complaint.
Pore rental or purchase might be available in future water banks.
Enjoy!
"Geography: a borderline subject with links to many departments, useful to all but lacking definite outlines and disciplines of its own.” – George D. Hubbard (1951, Journal of Higher Education)
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