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

CRS InFocus Report: 'Role of the U.S. Environmental Protection Agency in Environmental Justice' Updated: 29 August

Robert Esworthy authored this CRS InFocus 2-pager (29 August 2019) on a topic that is too often ignored: Role of the U.S. Environmental Protection Agency in Environmental Justice.

Download CRS_InFocus_EPA_Env_Justice_29August2019

The first two sections:

Executive Order 12898
The role of the U.S. Environmental Protection Agency (EPA) in environmental justice is rooted in Executive Order (E.O.) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, signed by President Bill Clinton on February 11, 1994. E.O. 12898 directs each executive department and agency, including EPA, to “make achieving environmental justice part of its mission.”

The consideration of environmental justice across federal programs and activities is not mandated in statute. E.O. 12898 more generally directs executive departments and agencies to integrate environmental justice into their respective missions to “the greatest extent practicable and permitted by law.” Some departments and agencies have incorporated the consideration of environmental justice into their respective regulations to carry out the E.O.

E.O. 12898 itself does not establish federal law but is a presidential directive for the management of executive departments and agencies that instructs the implementation of existing law. (See CRS Report RS20846, Executive Orders: Issuance, Modification, and Revocation, by Todd Garvey.) The E.O. is not judicially enforceable and explicitly precludes “any right of judicial review involvingthe compliance or noncompliance of the United States, itsagencies, officers, or any other person with this order.”Although amended by E.O. 12948 in 1995, E.O. 12898 has not been revoked or further amended under the current or previous Administrations to date and continues to apply to executive departments and agencies. E.O. 12948 amended time frames for certain actions directed in E.O. 12898, but all other provisions have remained unchanged.

Under E.O. 12898, executive departments and agencies are responsible for interpreting the statutes that authorize their respective programs and activities to determine the extent to which environmental justice may be incorporated as a facet of implementation. Some agency programs or activities may not incorporate environmental justice or may incorporate it in a more limited capacity. Although the authorizing statutes do not explicitly preclude consideration of environmental justice, some implementation criteria may be inconsistent with such considerations. For example, federal environmental laws that authorize the permitting of industrial facilities do not allow the denial of a permit solely because of proximity to a particular community based on its demographics, although, during permitting actions, certain communities may cite proximity as an environmental justice concern. From a scientific standpoint, potential health risks in such situations would depend on exposure to pollutants, not proximity alone.

What Is Environmental Justice?
What constitutes environmental justice has been an ongoing issue for many years. There is no definition of environmental justice in federal law. Some have interpreted the terms “environmental justice (or injustice)” and “environmental equity (or inequity)” broadly to describe theperceived disproportionate impacts of pollution across populations that possess different demographic characteristics (e.g., age, gender, race, national origin, occupation, income, or language). Some have also raised concerns about environmental justice in terms of access to natural resources and recreational opportunities as part of a broader focus on the environment than just pollution from anthropogenic sources.

Stakeholder concerns about the consideration of environmental justice in the implementation of EPA programs and activities have generally focused on the protection of certain populations that may be disproportionately exposed to potentially hazardous or toxic substances. Economic impacts may also be cited as an environmental justice concern, such as perceived effects of the presence of pollution sources on property values.

E.O. 12898 refers to environmental justice in terms of disproportionately high and adverse human health or environmental impacts specifically on minority and low- income populations. In its role under E.O. 12898, EPA has generally defined environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” Other federal departments and agencies may tailor their definition of environmental justice to their respective missions.

Enjoy!

“The more clearly we can focus our attention on the wonders and realities of the universe, the less taste we shall have for destruction.” ― Rachel Carson

CRS Report: 'Indian Water Rights Settlements' (16 April 2019)

Here is an updated (16 April 2019) CRS report by Charles V. Stern, Indian Water Rights Settlements.

Download CRS_Indian_Water_Rights_16April2019

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 between tribes, the federal government, states, water districts, and private water users, among 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 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 certain mandatory funds for these settlements in perpetuity (the funding currently expires in FY2029).

Several individual Indian water rights settlements recently have been considered and enacted, including three that were enacted during the 114th Congress. A primary challenge facing new settlements is the availability of federal funds to implement ongoing and future agreements. Indian water rights settlements often involve the construction of major new water infrastructure to allow tribal communities to access water they hold rights to, and obtaining federal funding for these projects can be difficult. As a result, some settlements have been renegotiated to reduce their federal costs.

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.

Here is the map from the 17 July 2018 report (R44148):

Figure 1. Indian Reservations with Water Rights Settlements or Negotiations

Cutting to the chase...

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 4 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 and approved by authorizing committees and others (i.e., whether the settlements are accompanied by formal statements of Administration support, cost estimates, etc.). 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 of interest to Congress.

Enjoy!

"I like being over the hill. I've discovered there's a whole new landscape." - @Janefonda (quoted in @thesundaytimes via @TheWeek)

Two More Award-Winning Water Resources IMPACT Articles: 1) 'Endangered by Injustice: The Human Right to Water in the US'; 2) 'Integrating Law, Science and a Path Forward - Opportunities for Collective Action in a Time of Change'

A few days ago I posted John H. Matthews' article, Climate Change: Resilient Infrastructure or Infrastructure for Resilience? that won the Water Resources IMPACT2018 Article of the Year Award. It was published in the November 2018 issue.

Here is what a reviewer said:

Matthews’ engaging writing style draws in the reader, asks critical questions, and promotes multidisciplinary approaches.

His first paragraph:

Recently I was invited to an informal dinner in Europe withnvestors and groups that interact with investors. I’m a freshwater scientist, working on climate change and water management issues for about 15 years. I had been seated across from a smartly dressed woman from southern Africa, affiliated with a group funded by British foreign aid to support resilient infrastructure in the region.

Download MatthewsArticleOfYearNov2018IMPACT

I was remiss in failing to mention the two runners-up that were close seconds.

1) Endangered by Injustice: The Human Right to Water in the United States, by Susan Lea Smith (March 2018)

One reviewer commented:

Utilizing well-researched statistics and many familiar examples of the current crisis, Susan clearly identifies the problematic lack of access to safe drinking water, and concludes her article with well-rationed and realistic starting points for a solution-based approach to cure America's water injustice.

Susan's first paragraph:

The internationally recognized human right to water
requires that every nation provide safe, affordable water for household uses. While most Americans enjoy safe drinking water from their household tap, the human right to water in the United States is endangered by multi-faceted
social injustice that pervades modern America—injustices born of racial and wealth disparities, the unwillingness of the rich to invest in public water infrastructure, and corporate willingness to pollute in unconscionable ways in pursuit othe almighty force of quarterly profits.

Download SmithArticleMar2018IMPACT

2) Integrating Law, Science and a Path Forward: Opportunities for Collective Action in a Time of Change, by Lara B. Fowler and Robert T. Caccese (November 2018)

A reviewer commented:

[T]his article [Fowler, Caccese] has a broad appeal, is concise yet informative, and challenges us to think differently about the way we approach water management.

Their first paragraph:

On January 8, 2018, the U.S. Supreme Court heard two interstate water cases, including a long-awaited hearing between Georgia and Florida. In reviewing the oral arguments, we were struck by how the justices found the U.S. Army Corps of Engineers’ modeling “incomprehensible,” with much argument about whether water saved in Georgia would actually flow to Florida (Florida v. Georgia 2018; https://bit.ly/2CDuODk). Given improvements in science—for both surface water and groundwater—over the past 150 years, this discussion was dishearteningly similar to the Ohio Supreme Court’s 1861 decision which noted that groundwater was “occult” and therefore could not be easily regulated (Frazier v. Brown 1861).

Download FowlerCacceseArticleNov2018IMPACT

Three short but very important reads. 

Enjoy!

"The physicists do well in the academy because they understand all my promises have both a half-life and a rapid decay rate." - @ass_deans

Climate Change — A Health Emergency: Hydrophilanthropy, Ethics and Time for WaterWonks to Join Health-Care Professionals

This post did not turn out the way I thought it would. Better!

Read on...but beware: stream-of-consciousness alert!

On 23 January 2019 the WBUR-produced NPR show On Point had a great discussion on the public health emergency aspects of climate change. They are not en route; they are here and they will get worse. We WaterWonks tend to think in terms of floods, sea-level rise, droughts, mudslides, etc., but it is more than those..

The discussion was chilling, but I also found it enlightening and inspiring.

The show started with some introdcutory material and a commentary from the New England Journal of Medicine that introduced the major NEJM paper and also served as a 'call to action'.

Here is the commentary paper by Drs. Caren G. Solomon and Regina C. LaRocque, Climate Change - A Health Emergency

Download Nejmp1817067

Introduction
As the Camp wildfire spread rapidly in California in early November 2018, the University of California, Davis, Burn Center received a call that nearby Feather City Hospital was on fire and patients were being urgently transferred. That, recalls David Greenhalgh, professor and chief of the Burn Division, UC Davis Department of Surgery, was when the chaos began. Within the next 24 hours, with fires raging, 12 new burn patients were rushed to his facility (which usually admits 1 or 2 patients in a given day). The most severely injured man had burns over nearly half his body, with exposed bone and tendon; a month later, he and two other patients remained hospitalized, facing repeated surgeries. And these were the patients fortunate enough to have made it to the hospital. At least 85 people died and nearly 14,000 homes were lost in what is the largest California wildfire on record — a record that unfortunately is likely to be short-lived.

In this issue of the Journal, Haines and Ebi summarize the devastating effects that the global burning of fossil fuels is having on our planet (pages 263–273). Disruption of our climate system, once a theoretical concern, is now occurring in plain view — with a growing human toll brought by powerful storms, flooding, droughts, wildfires, and rising numbers of insectborne diseases. Psychological stress, political instability, forced migration, and conflict are other unsettling consequences. In addition, particulate air pollutants released by burning fossil fuels are shortening human life in many regions of the world. These effects of climate disruption are fundamentally health issues, and they pose existential risks to all of us. People who are sick or poor will suffer the most.

The last paragraph:

We, like others, are frightened by the unfolding climate crisis, with its implications for the health of our communities and the future of our children. Rather than being paralyzed by despair, we choose to focus our efforts on areas where our voices are most powerful — for instance, by working with medical students on climate action, supporting the undergraduate divestment movement, joining forces with like-minded health professionals, and speaking with our legislators. There are currently more than a million physicians in the United States, and our actions matter. When the next generation asks us, “What did you do about climate change?,” we want to have a good answer.

That last paragraph really struck me. More than 1M physicians in the USA, plus all the other health-care professionals? (over 13M according to one site). What a large cogent group that would make legislators take notice. 

What if the climate scientists and WaterWonks joined the HCPs? Think about it.

Here is the main event:

The Imperative for Climate Action to Protect Health, by Andy Haines and Kristie Ebi, NEJM, N Engl J Med 2019; 380:263-273
DOI: 10.1056/NEJMra1807873  Note: click on the title to access a PDF of the article or download it here: Download NEJMra1807873

Introduction
Climate change is already adversely affecting human health and health systems, and projected climate change is expected to alter the geographic range and burden of a variety of climate-sensitive health outcomes and to affect the functioning of public health and health care systems. If no additional actions are taken, then over the coming decades, substantial increases in morbidity and mortality are expected in association with a range of health outcomes, including heat-related illnesses, illnesses caused by poor air quality, undernutrition from reduced food quality and security, and selected vectorborne diseases in some locations; at the same time, worker productivity is expected to decrease, particularly at low latitudes. Vulnerable populations and regions will be differentially affected, with expected increases in poverty and inequities as a consequence of climate change. Investments in and policies to promote proactive and effective adaptation and reductions in greenhouse-gas emissions (mitigation) would decrease the magnitude and pattern of health risks, particularly in the medium-to-long term.

Cutting to the chase...

Conclusions
Climate change is causing injuries, illnesses, and deaths, with the risks projected to increase substantially with additional climate change, threatening the health of many millions of people if there are not rapid increases in investments in adaptation and mitigation. The recent Intergovernmental Panel on Climate Change report makes a powerful case for “rapid and far-reaching” transitions in land, energy, industry, buildings, transportation, and cities, with the aim of limiting global warming to 1.5°C by reducing global net human-related emissions of carbon dioxide by approximately 45% from 2010 levels by 2030. This would reduce the risks of exceeding critical thresholds damaging to natural systems and human societies while providing more time for adaptation.

Health professionals have leading roles to play in addressing climate change. They can support health systems in developing effective adaptation to reduce the health risks of climate change, promote healthy behaviors and policies with low environmental impact, support intersectoral action to reduce the environmental footprint of society in general and the health care system specifically, and undertake research and education on climate change and health. The pervasive threats to health posed by climate change demand decisive actions from health professionals and governments to protect the health of current and future generations.

I like the fact that the physicians (especially) and other HCPs see this as their ethical responsibility. This is especially true when you realize that the sick and impoverished are going to 'feel the pain' far more than those of us with greater economic resources.

We WaterWonks should see this through the same lens - to do what's right, and help those in need and indeed, all of humanity and the natural environment. Call it hydrophilanthropy if you want to. But call it worth undertaking.

Enjoy!

“If you want to go fast, go alone. If you want to go far, go with others.” - African proverb