Water Transfers in the West Efficiency, Equity, and the Environment (1992) / Chapter Skim
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3 The Role of Law in the Transfer Process
3 The Role of Law in the Transfer Process
Pages 70-105
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From page 70... ...
This was achieved by allowing citizens to use water for private gain and by providing legal protection for those uses. Like a subsidy, the award of water rights to private parties created incentives to encourage the investment and economic activity necessary to meet both regional and national development goals.
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From page 71... ...
Indeed, consideration of the interests of parties not directly involved in buying or selling a water right is becoming part of the water transfer process. States are changing their laws in a variety of ways to respond to demands for broader public representation in water transfers.
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From page 72... ...
Based on research and the case studies reflected in Chapters 5 through 11 of this report, the committee has identified the following institutional measures and legal authorities for integrating multiple public values and protecting affected interests in the water transfer process: public interest review processes; impact assessment; comprehensive planning; · judicial public trust doctrine; Clean Water Act, Section 404; ad hoc negotiation among affected parties; and other legislation (including, but not limited to, instream flow laws, area-of-origin protection, water quality laws, conservation programs, endangered species protection, and land use controls)
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From page 73... ...
Although many states apparently perceive the benefits of water transfers, few have fully considered how best to deal with the negative effects on third parties. Although the issue is not treated with a coordinated approach, several state laws and programs address some of the impacts on affected parties or establish processes to help assess, avoid, or mitigate the effects of transfers.
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From page 74... ...
WATER TRANSFERS IN THE WEST Th,e"~Ro'i'e: 'of ~ t ' ' ' in e ' at rim Tr ~~ .~.~.~.~.~.~.~.~. ~ i A ~ ~ In every western state, some public official or entity is respond bible for a~d:m~iriister~ing the~state's programs of Allocation of use of water resc~urces.
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From page 75... ...
Strong as the no injury rule is, objecting third parties are not always fully protected. A change may be allowed if there will be enough water for the objecting water rights holder to enjoy the right.
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From page 76... ...
Courts and administrative agencies cannot rely on old court decrees for guidance because these are notoriously inaccurate indicators of the amounts of water actually put to beneficial use. Before there were state water agencies staffed with professional engineers to oversee the appropriation process, the quantities appropriated often were based on the "best guess" of the appropriator (which was typically high)
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From page 77... ...
The laws were an attempt to keep good senior rights in agricultural uses. The rationale was that the rights would be "lost" to farmers if they could be moved to industry.
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From page 78... ...
The economy, ecology, water quality, lifestyle, and potential for future growth all may be affected. The problem is exacerbated when large amounts of water are moved to another watershed because the basin of origin also loses the benefits of the return flows.
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From page 79... ...
To make it more difficult for out-of-state applications to perfect water rights based on the Sporhase case, New Mexico extended to transfers its requirement that appropriations not be detrimental to the "public welfare." In most states, administrative agencies simply apply the same standards relevant to new ancrorriations, including public interest requirements, to changes of use. Introduction of consideration of the public interest into the transfer process potentially extends protection to interests well beyond the legal interests of water rights holders.
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From page 80... ...
They may also accomplish the goal of securing instream flows by inhibiting transfers that would deplete a stream below the minimum protected under the instream flow law; instream water rights holders, usually the state, have standing to invoke the no injury rule in proposed transfers.
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From page 81... ...
Many are restricted to minimal protection of fish and wildlife habitat and are not used as the basis for securing rights for protection of the ecosystem and other interests such as recreation, water quality, the social integrity of rural communities, or the future economic well-being of a region. In some cases the scope of instream flow statutes is limited by administrative practice, though not by statutory language.
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From page 82... ...
California and Oregon have passed laws to encourage water salvage; these generally award title of the salvaged water to the saver. The laws are intended to provide an incentive to water users who reduce the amount of water consumed by undertaking on-site conservation practices: the salvager can sell the water saved to others.
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From page 83... ...
The purpose of water salvage laws is surely salutary, but fuller use of water from a stream can have negative environmental consequences, especially when large-scale water salvage becomes a major supply augmentation strategy. Streamflows may be depleted, wetlands may dry up, and water quality may degrade as return flows and seepage are reduced.
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From page 84... ...
The environmental issues, however, have not yet been fully addressed because the transfer does not immediately change the fate of the sea. OTHER STATE LAWS Besides provisions in water allocation laws that relate to transfers, states have a number of other laws that can affect whether and under what conditions water transfers may be made.
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From page 86... ...
In addition, where water quality laws are in potential conflict with an unfettered right to appropriate water, state laws often mandate that the right to use water shall take precedence over protection of quality (Getches et al., 1991~. The potential water quality effects of transfers are considered in a few states as a part of the public interest review process, but this process may be ineffective because the states typically separate their administration of water allocation and water quality.
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From page 87... ...
Faced with required stewardship over the land, the parties may decide on temporary transfers, limited to dry years, or transfers of part rather than all of the water rights, or they may seek other ways either to keep the land in cultivation or to rehabilitate it for other uses. FEDERAL RECLAMATION LAW As noted in Chapter 1, the federal government has the potential to shape the future of western water allocation because it stores and delivers large quantities of the region's water.
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From page 88... ...
Supreme Court extended the reach of federal law and federal bureaucratic discretion in the face of challenges grounded in allegedly contradictory state law. This legal trend, however, came to an abrupt halt in 1978 in United States v.
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From page 89... ...
" On the other hand, DOI's policy recognized, as have many others, that support for voluntary water transfers cannot and should not be unqualified. The seven principles are replete with qualifications addressing, among other concerns, third party effects, federal contractual and financial interests, and environmental impacts.
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From page 90... ...
For the most part, however, the DOI policy retains sufficient ambiguity and DOI personnel retain sufficient discretion that substantial variability in future departmental treatment of proposed transactions is likely (Wahl, 1989~. More transactions probably will be facilitated than would have been without the principles, criteria, and guidance, but the DOI policy by no means provides clear sailing for western water transfers involving federal facilities or federal water rights.
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From page 91... ...
This prohibition may restrict the ability of water users to divert water from streams. Even in large basins such as the Snake-Columbia, the Colorado, the Sacramento, and the San Toaquin, endangered species protection may become a binding constraint not only on new development proposals but also on proposed water transfers that otherwise would make water management in the basins more efficient.
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From page 92... ...
FEDERAL AND INDIAN RESERVED RIGHTS Until the 1970s, much of the tension between federal and state water allocation centered on the proprietary claims of the federal government which in effect could trump state-created rights. Federal water rights can be claimed for Indian tribes and certain reserved public lands.
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From page 93... ...
, most reserved rights are likely to be used to maintain instream flows rather than for consumptive uses. Of course, military bases, oil shale reserves, and visitor centers or campgrounds in parks can claim water for consumption.
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From page 94... ...
In the meantime, non-Indian water users are using water supplies allocated to them under state water laws that may eventually be judged to be tribal water. Transferability of Indian Reserved Rights Agriculture and fishing depend on adequate supplies of water.
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From page 95... ...
The legal power of tribes to transfer water off the reservation remains unresolved in the courts, and Congress has chosen to deal with the issue in an ad hoc manner. Congress has approved a number of transfers of the right to use Indian water off the reservation in recent years in the context of negotiated settlements of Indian reserved water rights claims with states and non-Indian water users.
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From page 96... ...
Although every type of water rights holding entity has a potential role in water transfers, the largest and most influential types of public entities that exercise water rights in the West are irrigation and conservancy districts. About a thousand entities known by a variety of names irrigation districts, conservancy districts, water authorities, and the likesupply a large measure of the water in the West, most of it to agriculture.
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From page 97... ...
The water rights held by a district belong to the district itself; members or residents of the district have contractual rights to use water. Districts have considerable promise for participating in and improving water transfer activities.
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From page 98... ...
The state public interest review statutes that exist in most western states are a potential, but largely unused, means for considering public issues surrounding water transfers from special districts. ~ Districts are charged with responsibilities broader than the traditional functions of water development, conveyance, and storage, such as playing a role in conserving water and in preserving water quality.
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From page 99... ...
They can discuss the relative importance to the state of water-related values and their impacts on rural communities, fisheries, wetlands, recreation, drinking water, and flood control. They can be designed as guidance documents for water rights holders and decisionmakers in transfers as well as other major water decisions, such as new appropriations, development projects, water quality standard setting, and instream flow protection programs.
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From page 100... ...
ala ITEM TR~SPERS ~ HE WEST , ~ .
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From page 101... ...
In 1983 the California Supreme Court applied the public trust to a lawsuit to curtail Los Angeles' appropriations from streams that fed Mono Lake (National Research Council, 1987) to preserve the lake's fragile ecosystem.
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From page 102... ...
Army Corps of Engineers under the Clean Water Act. Because some type of structure or facility frequently is necessary for a water transfer to occur, there is a potential federal "handle" on transfer projects that opens the possibility of extensive, detailed federal reviews and conditions.
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From page 103... ...
Laws that treat instream flow rights like other appropriative water rights (as in Colorado) provide protection against the adverse effects of transfers through the normal operation of state water law and its no injury rule.
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From page 104... ...
State water quality protection goals can be furthered in the transfer process if statutes and procedures are clarified to specify that purpose. Stricter controls of point source discharges, without the self-destructive provisions in some state laws that subordinate quality protection to an unfettered right to appropriate water, are needed.
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From page 105... ...
Shokal v. Dunn, 109 Idaho State Supreme Court 330, 707 P.2d 441 (1985)
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