WaterWired

CRS Report: Indian Water Rights Settlements (Updated: 26 December 2019)

From Charles V. Stern comes this updated CRS report: 'Indian Water Rights Settlements'.

Great topic!

Download CRS_Report_Indian_Water_Rights_Settlements_26Dec2019

Summary
In the second half of the 19th century, the federal government pursued a policy of confining Indian tribes to reservations. These reservations were either a portion of a tribe’s aboriginal land or an area of land taken out of the public domain and set aside for a tribe. The federal statutes and treaties reserving such land for Indian reservations typically did not address the water needs of these reservations, a fact that has given rise to questions and disputes regarding Indian reserved water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes have a reserved right to water sufficient to fulfill the purpose of their reservations and that this right took effect on the date the reservations were established. This means that, in the context of a state water law system of prior appropriations, which is common in many U.S. western states, many tribes have water rights senior to those of non-Indian users with water rights and access established subsequent to the Indian reservations’ creation. Although many Indian tribes hold senior water rights through their reservations, the quantification of these rights is undetermined in many cases.

Tribes have pursued quantification of their water rights through both litigation and negotiated settlements. The settlements involve negotiation among tribes, the federal government, states, water districts, and private water users, and others. They aim to resolve conflict between rights holders and allow the parties to determine specific terms of water allocation and use with certainty. Over the last 50 years, negotiated settlements have been the preferred course for most tribes because they are often less lengthy and costly than litigation. Additionally, many stakeholders have noted that these negotiated agreements are more likely to allow tribes not only to quantify their water rights on paper but also to procure access to these resources in the form of infrastructure and other related expenses, at least in some cases.

After being negotiated, approval and implementation of Indian water rights settlements require federal action. As of 2019, 36 Indian water rights settlements had been federally approved, with total estimated costs in excess of $5.8 billion. Of these, 32 settlements were approved and enacted by Congress and 4 were administratively approved by the U.S. Departments of Justice and the Interior. After being congressionally authorized, federal projects associated with approved Indian water rights settlements generally have been implemented by the Bureau of Reclamation or the Bureau of Indian Affairs (both within the Department of the Interior), pursuant to congressional directions. Congress has appropriated discretionary and mandatory funding (and, in some cases, both) for these activities, including in recent appropriations bills. In the 116th Congress, H.R. 1904 proposes to extend in perpetuity the Reclamation Water Settlements Fund, which is currently scheduled to provide $120 million per year in mandatory funds for these settlements through FY2029.

Several individual Indian water rights settlements have recently been considered and approved by Congress, including three that were enacted during the 114th Congress. In addition to opposition to some proposed settlements, one of the primary challenges facing new settlements is the availability of federal funds and the related question of cost-shares among federal, state, local, and tribal interests.

At issue is under what circumstances (if any) Congress should approve new Indian water rights settlements and whether Congress should fund (and in some cases amend) existing settlements. Some argue that resolution of Indian water rights settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal government’s liability. Others argue against authorization and funding of new settlements, either on general principle or with regard to specific individual settlements and activities.

How about a conclusion?

Conclusion
Long-standing disputes over water rights and use involving Indian tribes continue to be negotiated and settled by the executive branch and are thus likely to be an ongoing issue for Congress. This matter includes implementation of ongoing Indian water rights settlements, negotiation of new settlements, and consideration of these settlements for potential enactment and subsequent funding. As of the end of the 115th Congress, 32 settlements had been enacted since 1978, and four settlements had been approved administratively. Additional funding for ongoing settlements and authorization of and appropriations for new settlements are likely to be requested in the future. In considering Indian water rights settlements, primary issues for Congress may include the cost, contents, and sufficiency of federally authorized efforts to settle tribal water rights claims, as well as the circumstances under which these settlements are considered andapproved by authorizing committees and others (i.e., whether the settlements are accompanied by formal statements of Administration support, cost estimates). In addition, the preferred extent of federal involvement in implementing settlements, including the question of whether the federal government or tribes should take the lead in developing and constructing projects, may be a central question under consideration in future settlements under consideration by Congress.

Enjoy!

“Like a man who has been dying for many days, a man in your city is numb to the stench.” - Chief Seattle

Jesse J. Richardson, Jr. Opines: The Special Master's Report on Florida v. Georgia

Jesse James Richardson, Jr., Professor of Law at West Virginia University's College of Law, is one of the smartest water lawyers I know. He is also a delightful speaker so if you get a chance to hear him speak, do so.

Here's a piece he wrote after reading the Report of the Special Master in Florida v. Georgia water dispute. He gave me permission to post it. I just added the report itself, the ACF basin graphic, Jesse' picture, and the aphorism at the bottom.

Download Report_SpecialMaster_FL_v_GA_11Dec2019

As a Christmas present to myself, I read the report of the Special Master in Florida v. Georgia yesterday. In summary, the Special Master recommends denying Florida's request for a decree because it has not proved the elements necessary to obtain relief. Florida points to the oyster fishery collapse as the harm, but the Special Master found that Florida failed to prove that Georgia caused the collapse. The collapse was likely caused, according to the Special Master, by frequent droughts, over-harvesting, and climate change.

 

In addition, the Special Master found that Georgia's use was not unreasonable or inequitable. Finally, the Special Master determined that the benefits of the apportionment would not substantially outweigh the harms. This is a good recommendation for agriculture, since the Special Master recognizes agricultural as a reasonable use generating "substantial benefits". However, the recommendation could prove to be ominous for rural states since the Special Master considered proportional population and economic production, even while decrying how relying on these measures too much would mean that the "larger state always win".

 

The recommendation is likely bad for environmental groups. Environmental benefits and costs appeared to be given minimal weight, especially when compared with tangible economic benefits and costs.

 

I think SCOTUS will accept these recommendations. The recommendations and very methodical and well supported. Since the Special Master has seen the witnesses and has developed the facts, it would be difficult to reject such well supported findings.

 

Overall, Several interesting points in the report.

 

(1) The Special Master thought it was important that Florida only presented evidence of harm during drought years. It was important to the findings that no harm was alleged during normal to above normal rainfall years. That seems odd to mean. Wouldn't one expect the harm to occur during drought years? I think the point was that the drought caused the damages, not Georgia's pumping. However, but for the the pumping of Georgia, would damages have occurred?

 

(2) The Special Master was very critical of the experts for Florida. Their testimony, in his opinion, failed to specially address harm to individual fish species. Florida's experts relied on a model, many of the assumptions of which the special master viewed skeptically, at best. Georgia's experts, on the other hand, used actual data from on-site meters and the like, which the Special Master viewed favorably. Note that on some issues, experts for both sides used models. The Special Master viewed the Georgia experts as more persuasive on those issues as well.

 

Note that the Special Master seemed to dismiss the testimony of one of Florida's experts because the expert failed to mention the weaknesses of the model until questioned on cross-examination. That expert also failed to disclose several results that did not support his conclusions.

 

In addition, Georgia's experts attacked Florida's data with specificity while Florida's experts offered only generalized attacks. For example, one expert challenged the irrigated acreage totals presented by Georgia, but never estimated how much acreage was omitted.

 

(3) The Special Master also found that Georgia's consumptive use was reasonable. As to the amount of consumptive use, this is the area where Florida used rainfall runoff models while Georgia's experts used number of irrigated acres and metering results. The Special Master found the Georgia method more reliable.

 

Although emphasizing that relying on this fact as dispositive would make reduce equitable apportionment analysis to a "rigid rule whereby the larger state always wins", the Special Master nonetheless seemed to place great weight on the comparison between the proportion of population (92%), employment (96%) and gross regional product (99%) attributable to Georgia and the consumption of state line flows (up to 17.4%, depending on how calculated). This seems odd to me as well. Percentage of population, etc. is all well and good, but the percentage of state line flows consumed may well need to be limited to a very small proportion of the water. 

 

(4) This Special Master also disagreed with the prior Special Master with respect to Georgia's conservation of water. The Special Master noted that, despite a substantial increase in population, Georgia uses much less water than it did 30 years ago, but failed to mention that that fact is true across the country due to increased efficiencies (low-flow toilets, more efficient irrigation, etc.).

 

"Drinking and other domestic purposes are the highest uses of water".  Agricultural uses of water in Georgia provide "substantial benefits". The special master also found the consumption "reasonable". However, agricultural use of water during drought was called out as "only increasing" and "not effectively curbed", making the question "to what extent the two states should share the burden of drought". The Special Master answered that question by, in a very perfunctory manner, applying the doctrine of reasonable use, and finding Georgia's use reasonable.

 

(5) The Special Master also found that even if the Corps of Engineers would increase flows into Florida, the impact would be minimal. Therefore, Florida would see "no appreciable benefit from a decree".

 

(6) Finally, the Special Master found that the potential harms to Georgia of apportionment would substantially outweigh the benefits to Florida. The Special Master specifically limited his analysis to marginal costs and marginal benefits, drawing approval from economists everywhere. The cost of generating increasing the flow by 801 cfs during summers during dry years would cost $100 million. The Apalachicola fishing industry generates "only" $11.7 million per year and the oyster industry "only" $6.6 million per year before the collapse. This difference appeared to be dispositive.

 

Enjoy!

"August in Florida is God's way of reminding us who's in charge." - Blaize Clement

CRS Report: 'Changes in the Arctic - Background and Issues for Congress' Updated: 27 November 2019

This is another CRS report that is updated periodically.

Just the other day I heard a story on NPR about increased Russian activity in the Arctic and the wariness of the Norwegians and others.  

So here is the latest update by Ronald O'Rourke at al. 'Changes in the Arctic - Background and Issues for Congress'

Download CRS_Report_Changes_Arctic_27Nov2019  

Summary
The diminishment of Arctic sea ice has led to increased human activities in the Arctic, and has heightened interest in, and concerns about, the region’s future. The United States, by virtue of Alaska, is an Arctic country and has substantial interests in the region.

Record low extents of Arctic sea ice over the past decade have focused scientific and policy attention on links to global climate change and projected ice-free seasons in the Arctic within decades. These changes have potential consequences for weather in the United States, access to mineral and biological resources in the Arctic, the economies and cultures of peoples in the region, and national security.

Although there is significant international cooperation on Arctic issues, the Arctic is increasingly being viewed by some observers as a potential emerging security issue. Some of the Arctic coastal states, particularly Russia, have taken actions to enhance their military presences in the high north. U.S. military forces, particularly the Navy and Coast Guard, have begun to pay more attention to the region in their planning and operations.

The five Arctic coastal states—the United States, Canada, Russia, Norway, and Denmark (of which Greenland is a territory)—have made or are in the process of preparing submissions to the Commission on the Limits of the Continental Shelf regarding the outer limits of their extended continental shelves. The Russian submission includes the underwater Lomonosov Ridge, a feature that spans a considerable distance across the center of the Arctic Ocean.

Two of the Coast Guard’s three polar icebreakers—Polar Star and Polar Sea—have exceeded their intended 30-year service lives, and Polar Sea is not operational. The Coast Guard has initiated a project to build up to three new heavy polar icebreakers. On May 12, 2011, representatives from the member states of the Arctic Council signed an agreement on cooperation on search and rescue in the Arctic.

The diminishment of Arctic ice could lead in coming years to increased commercial shipping on two trans-Arctic sea routes—the Northern Sea Route close to Russia, and the Northwest Passage close to Alaska and through the Canadian archipelago—though the rate of increase in the use of these routes might not be as great as sometimes anticipated in press accounts. International guidelines for ships operating in Arctic waters have been recently updated.

Changes to the Arctic brought about by warming temperatures will likely allow more exploration for oil, gas, and minerals. Warming that causes permafrost to melt could pose challenges to onshore exploration activities. Increased oil and gas exploration and tourism (cruise ships) in the Arctic increase the risk of pollution in the region. Cleaning up oil spills in ice-covered waters will be more difficult than in other areas, primarily because effective strategies for cleaning up oil spills in ice-covered waters have yet to be developed.

Large commercial fisheries exist in the Arctic. The United States is currently meeting with other countries regarding the management of Arctic fish stocks. Changes in the Arctic could affect threatened and endangered species, and could result in migration of fish stocks to new waters. Under the Endangered Species Act, the polar bear was listed as threatened on May 15, 2008. Arctic climate change is also expected to affect the economies, health, and cultures of Arctic indigenous peoples.

Here is just one issue for Congress:

Climate Change and Loss of Arctic Sea Ice
Record low extents of Arctic sea ice in 2012 and 2007 have focused scientific and policy attention on climate changes in the high north, and on the implications of projected ice-free seasons in the Arctic within decades. The Arctic has been projected by several scientists to be ice-free in most late summers as soon as the 2030s.This opens opportunities for transport through the Northwest Passage and the Northern Sea Route, extraction of potential oil and gas resources, and expanded fishing and tourism (Figure 3).

More broadly, physical changes in the Arctic include warming ocean, soil, and air temperatures; melting permafrost; shifting vegetation and animal abundances; and altered characteristics of Arctic cyclones. All these changes are expected to affect traditional livelihoods and cultures in the region and survival of polar bear and other animal populations, and raise risks of pollution, food supply, safety, cultural losses, and national security. Moreover, linkages (“teleconnections”) between warming Arctic conditions and extreme events in the mid-latitude continents are increasingly evident, identified in such extreme events as the heat waves and fires in Russia in 2010; severe winters in the eastern United States and Europe in 2009/2010 and in Europe in 2011/2012; and Indian summer monsoons and droughts. Hence, changing climate in the Arctic suggests important implications both locally and across the Hemisphere.

Like the rest of the globe, temperatures in the Arctic have varied84 but show a significant warming trend since the 1970s, and particularly since 1995. The annual average temperature for the Arctic region (from 60o to 90o N) is now about 1.8o F warmer than the “climate normal” (the average from 1961 to 1990). Temperatures in October-November are now about 9o F above the seasonal normal. Scientists have concluded that most of the global warming of the last three decades is very likely caused by human-related emissions of greenhouse gases (GHG, mostly carbon dioxide); they expect the GHG-induced warming to continue for decades, even if, and after, GHG concentrations in the atmosphere have been stabilized. The extra heat in the Arctic is amplified by processes there (the “polar amplification”) and may result in irreversible changes on human timescales.

The observed warmer temperatures along with rising cyclone size and strength in the Arctic have reduced sea ice extent, thickness, and ice that persists year-round (“perennial ice”); natural climate variability has likely contributed to the record low ice extents of 2007 and 2012. The 2007 minimum sea ice extent was influenced by warm Arctic temperatures and warm, moist winds blowing from the North Pacific into the central Arctic, contributing to melting and pushing ice toward and into the Atlantic past Greenland. Warm winds did not account for the near-record sea ice minimum in 2008. In early August 2012, an unusually large storm with low pressure developed over the Arctic, helping to disperse the already weak ice into warmer waters and accelerating its melt rate. By August 24, 2012, sea ice extent had shrunk below the previous observed minimum of late September 2007.

Modeling of GHG-induced climate change is particularly challenging for the Arctic, but it consistently projects warming through the 21st century, with annual average Arctic temperature increases ranging from +1° to +9.0° C (+2° to +19.0° F), depending on the GHG scenario and model used. While such warming is projected by most models throughout the Arctic, some models project slight cooling localized in the North Atlantic Ocean just south of Greenland and Iceland. Most warming would occur in autumn and winter, “with very little temperature change projected over the Arctic Ocean” in summer months.

Due to observed and projected climate change, scientists have concluded that the Arctic will have changed from an ice-covered environment to a recurrent ice-free ocean (in summers) as soon as the late 2030s. The character of ice cover is expected to change as well, with the ice being thinner, more fragile, and more regionally variable. The variability in recent years of both ice quantity and location could be expected to continue.

The next section deals with the geopolitical environment. Give it a read!

Excellent overview. Enjoy!

"Never underestimate the power of very stupid people in large groups." -- John Kenneth Galbraith

Video: Youth and Water in Central Asia! WaterCafe 23 October: Blue Peace Index on Colorado River

1) Water and Peace 2.0 - Youth Outlook 2019

This video won the main prize in the Imagine Blue Peace competition sponsored by the Geneva Water Hub and the World Youth Parliament for Water! Here is the news release.

Three of our OSU Central Asian MS students Bota Sharipova (Kazakhstan), Nataliya Chemayeva (Turkmenistan), and Nargiza Osmonova (Kyrgyzstan) were intimately involved in the video's creation.

Title: Imagine Blue Peace Finalist: “Water and Peace 2.0 Youth Outlook, 2019”

Descriptive Teaser: Vision of young water specialists on water and peace using the case of Central Asia. Made by Bota Sharipova (WYPW), Nataliya Chemayeva (WYPW), Nargiza Osmonova (WYPW), Mirsaid Uzakov (WYPW), Tim Nolden (WYN) and Farhad Safi (CAY4W), 2019. The themes covered in the video include: social inclusion & stakeholder participation; transboundary river basins & aquifers, water, peace, and youth.

Thank you so much for your overall support, as always!

Here is a link to the video.

2) WaterCafe at Oregon State University on 23 October

Join WaterCafe on 23 October to assess how US states are managing the water resources of Colorado River!

WaterCafe will be conducted at Oregon State University on 23 October 2019 from 3 to 5 pm (Strand Agricultural Hall 363) to calculate the Blue Peace Index (BPI) of the Colorado River Basin. During two hours participants - Masters and PhD students from OSU - will work to assess management of shared water resources in 7 states of the USA accross five pillars: 1) policy & legal frameworks; 2) institutional arrangements and participation,  3) water management instruments, infrastructure and financing; and 2) cooperation. After deriving results of the assessment willing participants will be invited to provide video feedback on the indices which would be shared with creators and authors of the Index.

There will be a imited number of participants – save your space by registering here. 

More information about Blue Peace Index and the original methodology here. 

The event is organized jointly by the World Youth Parliament for Water (WYPW) and OSU Hydrophiles.

NB: Participants are kindly asked to come with their own laptops. Light snacks will be provided during the event.

Flyer:

Download Blue-Peace-flyer-final

Enjoy!

“Wars are poor chisels for carving out peaceful tomorrows.” – Dr. Martin Luther King, Jr.

Article in Harvard International Review: 'High and Dry - Central Asia’s Failure to Avert the Impending Water Crisis'

This 2017 article by Alisher Ilkmanov appeared in the Harvard International Review: 'High and Dry - Central Asia’s Failure to Avert the Impending Water Crisis'.

The graphic is from here.

Download High_and_Dry_Central_Asias_Failure_to_Avert

Introduction
In 2016, the World Resources Institute published a map called Water Stress by Country, comparing the shortages of fresh water experienced by countries across the world. This map clearly indicates the Mongolian-Arabian belt of high water stress, which includes Central Asia, along with Mongolia, Afghanistan, Iran, Pakistan, and the Arabian Peninsula. As a result of a number of factors, it can be argued that these countries belong to a zone of coming crisis, a lack of fresh water.

A study by the Intergovernmental Panel on Climate Change, operating under the auspices of the United Nations, shows that since the beginning of the twentieth century the overall temperature in the region has increased by 1-2 percent, and one can expect further raising by 2-4 percent in the coming decades. According to the World Bank, this trend may result in a 11 percent fall in the region’s GDP in the next 20 years.

Central Asia’s main sources of water resources are two major river basins, the Amudarya and Syrdarya, both of which are tributaries of the Aral Sea, which used to be one of the world largest lakes. According to forecasts, due to the expected melting of mountain glaciers, the river runoff in the Amudarya river basin will be reduced by 30 percent, compared with the average annual runoff over the past 10 years. This will lead to increased spring runoff, causing more flooding, as well as dramatically reduced water availability in the summer, causing more droughts. There is no need to say that this trend will most severely affect agriculture, a dominant sector of the economy in Uzbekistan and Turkmenistan, as well as southern Kazakhstan.

Are countries in the region prepared to face this scenario? Do all of them have adequate awareness of this issue? At the very least, there are no signs of discussions in the public sphere going on in the region on this subject.

The coming shortage of fresh water is only part of the broader set of water scarcity problems in Central Asia. These problems also include a lack of irrigation water for agriculture, as well as the pollution of the Amudarya and Syrdarya by high content of salts and agrochemicals from irrigation runoff. As a result, we are witnessing a social and economic crisis in the regions located downstream from the two main rivers, as well as declining quality of life in those areas, as populations experience water shortages and are forced to consume water with high salt content.

Perhaps some of the spring floods could be stored by implementing Managed Aquifer Recharge, similar to what Maria Gibson and I have been doing in the Yakima Valley in Washington State, USA.The hazard could be reduced and the water stored underground for later use. Here is a Texas case study.

Cutting to the chase...

Conclusion
As we can see, the solution to the problem of conservation and rational use of water resources requires a complex set of measures at the national and regional levels, and most importantly, the development of robust institutions. If the formation of institutions does not work at the national level, it is unlikely that we will see the emergence of capable institutions on a regional scale. It seems that regional governments and local populations are not prepared to meet the challenge and prevent an impending water crisis. As for international organizations, agencies, and donors, although they want to help countries in Central Asia solve these problems, they are not able to replace these governments and do the work that these governments are supposed to do themselves.

Given the current state of affairs, I remain quite skeptical about the possibility of solving key problems of a looming water shortage in the region. Perhaps, an old saying better reflects what we can expect in observable future: “The worse the better.” Until the people of Central Asia begin experiencing real hardships due to lack of water, they are unlikely to confront the government with a strong political will and desire for change.

Enjoy!

“The worse the better.” - Alisher Ilkmanov