Pacific Northwest Water Wars

Posted on March 30, 2015 by Rick Glick

It may come as a surprise that people fight over water in soggy Oregon and Washington. To be sure, we have not experienced the same level of conflict over competing water needs as our neighbors in the southwest, but in fact the conflicts are there and the stakes are high.

Most senior water rights in the Pacific Northwest are held by agriculture, whereas the growth in demand for water is occurring in the municipal and industrial sectors . . . and at last check, fish still need flowing streams. Add to that dynamic a declining hydrograph due to climate change, and the table is set for confrontation.

Two recent cases in the Oregon Court of Appeals and a case in the Washington Supreme Court that address municipal water rights illustrate the point. A more complete discussion of these cases is in the current issue of The Water Report.

The Oregon cases arise from a 2005 statute providing special rules for extensions of time to complete development of municipal water supplies. The caption for both cases is WaterWatch of Oregon v. Water Resources Department, but one involves the City of Cottage Grove and the other a group of Clackamas River water providers. The 2005 statute provides that for the first municipal extension granted after enactment of the statute, “fish persistence” conditions must be applied to the “undeveloped portion” of the city’s water system.

By the time Cottage Grove’s extension application was considered, the city had completed work on its water system. The Oregon Water Resources Department found no “undeveloped portion” and therefore imposed no fish persistence requirements. The court overturned the extension, finding that the fish conditions must relate back to the previous extension in 1999.

The Oregon Supreme Court initially accepted review of the case, but then without explanation declared that review was “improvidently” granted and dismissed it. Thus, the case stands; legislative corrections may be forthcoming. For the moment, Cottage Grove and other similarly situated public water providers may have less water than they previously thought due to fish flow curtailments and may incur unbudgeted additional public expense.

In the Clackamas case, the court found the “fish persistence” conditions were inadequate because OWRD failed to articulate how the conditions actually protected fish. The case is now back before OWRD for further proceedings.

In Cornelius v. Washington State University, the Supreme Court came to a happier conclusion for public water providers. The issue was whether university groundwater rights identified as for “domestic” purposes were entitled to special protections afforded only to municipal purposes. The Court unequivocally held they are.

The economies of our region depend on the courts getting it right with respect to municipal water supplies. Washington public water providers can rest easier than their counterparts in Oregon after their state courts’ recent pronouncements.

California Groundwater Regulation Enters the 20th Century!

Posted on October 8, 2014 by Rick Glick

On September 16, 2014, California Governor Jerry Brown signed into law a trio of bills to establish a statewide regulatory scheme for use of groundwater: Assembly Bill 1739 and Senate Bills 1168 and 1319. California had previously been the only Western state to leave “reasonable” use of groundwater to the tender mercies of individual pumpers until such time as the aquifer is adjudicated, a process that takes decades to complete.

California historically had asserted regulatory authority only over surface streams and defined underground channels.  But the most prevalent, and unregulated use, was of percolating groundwater.  Overlying landowners were deemed to have “correlative” rights to the use of groundwater under their lands; that is, rights proportionate to the amount of owned land.

This laissez faire approach has led to widespread overdrafting of groundwater resources, subsidence, and ruined groundwater quality.  Further, as stream flows decline—whether because of drought or climate change—more users turn to groundwater pumping, lowering the water table and driving up the cost of energy to lift the water.

All the other Western states exerted authority over groundwater in the previous century.  For example, Oregon’s groundwater appropriation law was enacted in 1955.  California finally joined the 20th Century with enactment of these bills as a response to unprecedented drought conditions and the fear that climate change will make matters worse.

In a nod to intense water politics, the bills take a local planning and management approach.  Other states direct their water agencies to establish basin plans to manage their groundwater resources.  In that sense, California has shown leadership in adopting a more decentralized approach to a water-scarce 21st Century.  Under the new legislation, local entities are to develop management plans for their groundwater basin for state review.  The state would intervene only if it deems the management plans inadequate or not enforced.  This local approach has not prevented certain water users from denouncing the bills as a state power grab.

My first job as a lawyer was as staff counsel to the California State Water Resources Control Board.  In response to what was then the worst drought on record, Jerry Brown, in his first iteration as Governor, convened a blue ribbon commission to review California water rights law.  The group was staffed by U. C. Davis law professor Hap Dunning and a team of young water lawyers, including myself.  We reviewed every aspect of California water law in a series of white papers, and made several sweeping and not so sweeping recommendations for reform. 

None of the recommendations passed out of legislative committees.  I suspect the current legislation would not have passed either but for the historic and severe drought conditions now facing the state.  California will need to do whatever it can to stretch its limited and declining water resources to support its powerful agricultural economy and growing cities.  Let’s hope that the new groundwater legislation will be a solution for this century.

Square Pegs in Round Holes

Posted on February 7, 2014 by Richard Glick

The Western states face two reciprocating and overarching problems in water resources policy.  First, water is an increasingly scarce resource facing sharply competitive needs. Climate change is projected to put even more strain on water supplies. Second, most streams listed as water-quality impaired in the West are designated as such for issues related to the biological integrity of the waterway. The combination of aggressive human use of waters, manipulation of stream channels, and failure to control agricultural runoff has resulted in widespread degradation of aquatic habitat.

The primary impediment to addressing these related issues arises from dated legal constructs designed to achieve different objectives in eras with markedly different economies. In other words, trying to apply these constructs to today’s problems is like attempting to fit square pegs into round holes.

The doctrine of prior appropriation governs water rights everywhere in the West.  It was developed in the 19th century to promote mining and agriculture—both water intensive enterprises—in arid climates. The doctrine provides that the first to physically take control of the water and put it to beneficial use has priority over later comers. Thus, the oldest water rights with the highest priorities are mostly agricultural, and many streams have become over-appropriated during the past century. So where does a growing community go for new water supplies? And what about maintaining sufficient high-quality flows instream for healthy fisheries?

The problem is made more acute by the formidable costs and regulatory uncertainty of developing major water storage projects. Many cities seek to acquire or share in old agricultural water rights through direct payments to water right holders or they finance irrigation system improvements for more efficient use of water. Such water marketing approaches free up water for municipal use, while reducing pressure to remove still more water from oversubscribed streams. But if a legislature could have anticipated then what we know now, might it a century ago have considered systems that allocate water based more on maximum public value and efficient use, rather than simply priority in time?

The Clean Water Act was enacted over 40 years ago to address toxic discharges of industrial and sewage wastewater to rivers and lakes.  Dramatic events like the spontaneous ignition of the Cuyahoga River drove public demand for government intervention, leading to the new law. The Act has done a remarkable job of cleaning up end-of-pipe discharges (point sources), but has largely failed at controlling more diffuse sources of pollution (nonpoint sources) from stream channelization, devegetation of riparian habitat and agricultural runoff. Thus, many streams today are impaired by turbidity, nutrient loading, and higher temperatures.

Since the Act does not provide enforcement tools for nonpoint sources, regulatory agencies use the authority available to them to ratchet up controls on point sources. One solution to this problem is water-quality trading, in which a point source permittee can take watershed-restorative action upstream to correct a nonpoint pollution problem in order to meet escalating permit requirements. This approach can yield better ecological outcomes at lower cost. But if Congress were drafting the Clean Water Act today, any rational approach would address the problem of diffuse sources of pollution.

It seems unrealistic to expect substantive changes to either the law of prior appropriation or the Clean Water Act any time soon. Aside from the politics, changes to prior appropriation raise significant constitutional questions to the extent property rights are affected. In the meantime, we’ll have to continue looking for creative workarounds. This circumstance makes interesting work for lawyers, but is hardly the optimal approach to effective water resource use and protection.

Sooners Beat Longhorns in Red River Bowl

Posted on June 18, 2013 by Rick Glick

In a unanimous decision issued June 13, the Supreme Court put an end to a parched Texas municipal utility’s bid to secure an Oklahoma water right.  In Tarrant Regional Water District v. Herrmann, the Court rejected every argument Tarrant advanced to access Red River basin water on the Oklahoma side.

The fabled college football rivalry between the Texas Longhorns and Oklahoma Sooners is not the only long simmering regional contest.  Dividing the waters of the Red River between Texas, Oklahoma, Arkansas and Louisiana has been a source of tension through much of the twentieth century, until the states entered into a Compact in 1978, approved by Congress in 1980.  The Compact took 20 years to negotiate. 

At issue is a provision under the Compact that guarantees a minimum flow from a certain reach of the river to Louisiana, which lacks adequate storage facilities.  The provision gives each state an equal share in the water from that reach.  Tarrant, which serves the fast-growing Fort Worth area, had hoped to access water in an Oklahoma tributary before the water reached the Red River, as the river’s water quality is not suitable for domestic use when it enters Texas.  

Failing in its attempt to purchase water from Oklahoma, Tarrant Regional Water District filed a water right application with the Oklahoma Water Resources Board.  Knowing that Oklahoma law prohibits out of state use of water rights, Tarrant simultaneously filed an action in U. S. District Court.  The district argued that the Compact preempts state water law, but the Court found nothing in the Compact to compromise the sovereign right of states to manage their waters.  Absent an express provision in the Compact that allows signatories to access water across state lines, the states are free to regulate their waters as they see fit. 

The states of Oregon and Washington entered into a compact in 1915, ratified by Congress in 1918, to regulate commercial fishing rights.  In light of the Tarrant decision, would expansion of the compact to deal with other regional water issues make sense?  For example, Washington and Idaho allow diversions of Lower Columbia River water for agriculture, whereas Oregon has not, citing fishery concerns.  While the effect of the Federal Columbia River Power System on salmon has been hotly contested, and regional solutions attempted, perhaps a coordinated approach among the Northwest states with regard to Lower Columbia water use could bring about equities and protect fish.  The Tarrant decision can be read to provide assurance that state prerogatives and rights are preserved even under a compact, unless the states decide it is in their mutual best interest to provide otherwise.

THROWING WESTERN WATER LAW ON ITS EAR?

Posted on December 5, 2012 by Martha Pagel

How far can affected stakeholders go in fashioning local, “place-based” solutions to water management problems?  In other words, is it OK to throw western water law out on its ear – a little bit -- if no one complains?

The policy question arises in Oregon in connection with recent efforts to balance the need for increased water supply to support the potential for substantial agricultural-based economic growth in the Umatilla Basin – a major Oregon tributary to the Columbia River system – with competing water demands to comply with the Endangered Species Act by restoring and protecting instream flow for listed salmon.  The balancing act also seeks to support treaty-based instream water rights for the Confederated Tribes of the Umatilla Reservation (CTUIR) and restore severely depleted ground water supplies (See CRUSTaskforce). The desire of stakeholders to explore new ideas that go beyond the boundaries established by existing water law is a foreseeable consequence of Oregon’s long-standing commitment to locally-based collaborative efforts to resolve complex natural resource issues  (See Oregon Solutions and http://www.oregon.gov/owrd/LAW/docs/i_Chapter_4_Final.pdf). Just how far should state bureaucrats be willing to go in bending or changing traditional programs and policies to make way for customized, place-based solutions?

The specific example in the Umatilla Basin relates to proposals for establishing a water bank and brokerage system.  (See http://orsolutions.org/beta/wp-content/uploads/2012/06/Oregon-Solutions-Presenation-6_18_2012-CRUST.pdf). A broad-based coalition of local interests including individual farmers, irrigation districts, the CTUIR, conservation interests, local governments and agri-businesses have jointly proposed an option for collaborative water management.  Under their concept, each year a water management plan would be filed with the state to describe how water would be used, and possibly redistributed under existing water rights.  The concept includes a bottom line requirement that the water management changes not result in injury to any water user not participating in the plan, and not diminish instream flows.  No harm, no foul.  However, in preliminary discussions, the Oregon Water Resources Department – the state agency in charge of allocating and administering water rights -- has balked at the plan because it could allow water users to ignore priority dates and “spread” water – concepts traditionally abhorred in Western water law.

So, the question is:  Should government get out of the way to let water users figure out their own strategies for managing water – even if it would throw certain principles of Western water law out on its ear? Why not, if it reflects a local consensus and no one complains?

Connecticut Adopts Revised Stream Flow Regulations and Standards

Posted on May 2, 2012 by Gregory Sharp

The fish versus faucet debate that has been percolating in Connecticut for the past decade has produced a comprehensive stream flow regulation with release rules applicable to all dam owners.  The new regulations will bring each segment of every river and stream in the state under the regulatory umbrella when fully implemented.

Previous regulations adopted in 1979 applied only to streams stocked with fish by the State and imposed a flat minimum release requirement on owners of dams on those streams.

The new regulations require the Department of Energy and Environmental Protection to first assign each stream segment one of four classifications.  Once the classifications are adopted, the regulations will require owners of dams to release water to maintain flows downstream of the dam according to the classification of the segment.

Class 1 will apply to segments which are free flowing and will require that any dam owner on these segments not manipulate storage or withdraw water from the impoundment.  Class 2 will apply to segments with minimally altered flow and will require dam owners to provide for a continuous release of 75% of the natural inflow to the impoundment.

Class 3 will apply to segments with moderately altered flow and will require dam owners to comply with a variable minimum release regime calculated for the segment based upon one of six bioperiods.  Class 4 applies to segments with substantially altered flows due to human needs for water supply, flood control, industry, agriculture and other lawful uses.

Connecticut’s five major river basins will be classified one basin at a time.  The Department estimates that classification of all five basins will take five years.  The regulations require that the release requirements applicable to regulated dam owners become effective not later than 10 years after a segment is classified.  The lead time was deemed necessary to enable dam owners to make modifications to their structures to be able to comply with the release requirements.

The new regulations represent a compromise package between what the Department originally wanted and the regulated community would accept.  Before the current package was approved, three previous proposed regulations had been rejected by the General Assembly’s Legislative Regulation Review Committee.  To win legislative approval, the Department eliminated groundwater withdrawals from the scope of the regulations and provided exemptions for agricultural and golf course irrigators.

In addition, to provide certainty to water utilities, the regulations specify that segments downstream of a public water supply reservoir shall not be classified as Class 1 or Class 2.  Finally, the regulations do not apply to government flood control dams or hydropower dams regulated by the Federal Energy Regulatory Commission.

The regulations became effective on December 12, 2011.

Ecosystem Services – A New Tool for Mitigating Water Development?

Posted on April 9, 2012 by Martha Pagel

The use of ecosystem services as a tool for compensatory mitigation is off to a slow start in Oregon.  It remains to be seen whether state agencies will effectively embrace and implement this relatively new approach to setting priorities and standards for mitigation programs. A specific question from the standpoint of water use and development is whether a wide range of ecosystem services can be used as an alternative to “bucket-for-bucket” in-stream flow replacement as mitigation to offset new water development.

The concept of ecosystem services – defined as “the benefits human communities enjoy as a result of natural processes and biodiversity” – has been recognized in Oregon law since 2009. (ORS 468.581(3)). The law establishes a general policy to support the maintenance, enhancement and restoration of ecosystem services in Oregon (ORS 468.583). Agencies are “encouraged” to use ecosystem services markets as a means to meet mitigation needs for various programs, and are directed to consider mitigation strategies that recognize the need for biological connectivity and ecological restoration efforts at a landscape scale rather than exercise an “automatic preference for on-site, in-kind mitigation” in making mitigation decisions (ORS 468.587(2)). See “Adventures in Water Quality Mitigation” for additional background.

Despite this policy and directive, the Oregon Water Resources Department (OWRD) has not yet taken any actions to modify its mitigation policies relating to issuance of new water right permits.  Under long-standing procedures, OWRD requires mitigation for new uses that are determined to have the potential to interfere with in-stream flows needed for fish that are listed as sensitive, threatened or endangered under state or federal programs.  (OAR Chapter 690, Division 33).

The need for mitigation arises most often in the context of reviewing applications for new ground water use. When the ground water source is determined to be in hydraulic connection to surface waters providing habitat for the listed fish species, mitigation may be required to offset the expected surface water depletion. Based on guidance from a biological opinion issued in a specific water right permit matter some years back, OWRD typically requires “bucket-for-bucket” mitigation in the form of in-stream flow restoration at or above the stream reach that will be affected by the ground water use. 

Applicants generally obtain mitigation water by acquiring and cancelling other existing water rights for surface water use.  In practice, the system results in a de facto cap and trade program, conditioning approval of new water rights on the cancellation of existing rights. 

In a few regions of the state – most notably the Deschutes Basin in Central Oregon – the bucket-for-bucket replacement approach works because mitigation water is generally available through voluntary markets.  This somewhat unique set of circumstances arises because of population growth and land use changes in an area of relatively marginal farming productivity.  As farm lands are converted to housing and urban uses in and near the cities Bend, Redmond and Prineville, the existing water rights become available for mitigation purposes.

In other parts of the state – most notably the highly productive and water-efficient farming region in the mid-Columbia Basin – the fact situation is quite different.  There is very little mitigation water available because existing water rights are needed to maintain existing agricultural production levels.  The frustration for economic development interests is exacerbated by the enormous volume of flow in the Columbia River and huge reservoir pools created by the federal hydropower system, both of which are untouchable because of the regulatory limitations on new withdrawals.   

The issue of ecosystem services as a potential alternative for mitigation took center stage briefly in the 2012 legislative session – but the discussion resulted in no action. HB 4126 would have spurred availability of ecosystem services markets by focusing on improved methodologies for quantifying and applying ecosystem services “credits.” Another bill that was hotly debated but eventually died in committee was focused directly on the Columbia Basin problems.  HB 4101 would have required OWRD to “consider new mitigation options for new surface water diversions” in the Columbia River Basin. The mitigation wording was specifically intended to open the door for alternatives to the “bucket-for-bucket” approach.  By putting the ecosystem services concept to work, mitigation alternatives could reasonably include investment in high value habitat restoration, including temperature reduction or other water quality improvements in priority tributaries to offset direct withdrawals from the Columbia River. 

For many of us directly involved in the Columbia River debates in Oregon, this new approach could be a key to unlocking access to the river for new economic use.  Without this policy change, Oregon water uses will continue to see little or no new irrigation development in the area because of the lack of traditional mitigation sources.  The Governor and legislative leadership are already working on a revival of the HB 4101 discussion in 2013.

NATIVE AMERICAN WATER RIGHTS vs. OKLAHOMA WATER RIGHTS

Posted on March 20, 2012 by Linda Martin

Chapter 4: High Stakes Litigation

My fall 2011 blog  discussed Chickasaw Nation and Choctaw Nation of Oklahoma v. Mary Fallin, in her official capacity as Governor of the State of Oklahoma, et al., Case No. CIV-11-927-C, filed in Federal Court in Oklahoma City (“Federal Court case”) on August 18, 2011.  In the Federal Court case, the Chickasaw and Choctaw Nations seek declaratory and injunctive relief to protect their federal rights, their present and future water rights, regulatory authority over water resources and immunity from state law and jurisdiction over certain waters located in Southeastern Oklahoma.  Certain aspects of this suit were also covered in Mark Walker’s December 2011 blog  on the 1830 Treaty of Dancing Rabbit Creek.  As a result of recent developments, claims in the Federal Court case and outside that litigation have evolved and escalated, and the stakes are now much higher. 

In June, 2010, the Oklahoma Water Resources Board (“OWRB”) entered into an agreement with the Oklahoma City Water Utility Trust (“Trust”) to sell to the Trust certain of the OWRB’s rights to store waters of the Kiamichi Basin in the Sardis Reservoir and to control withdrawals of water from the reservoir.  The tribes claim that a fundamental element of that agreement is the OWRB’s issuance of a water use permit granting the Trust annual water withdrawal rights from the Sardis Reservoir and/or the Kiamichi Basin in an amount roughly equal to ninety percent (90%) of Sardis’ estimated sustainable yield.  The tribes take issue with the sale, transfer and appropriation of water which they assert was given to them under various treaties with the United States that granted them exclusive dominion and control over the water resources on their tribal lands in Oklahoma.

In a most important tactical move, the State of Oklahoma, through the OWRB, filed a Petition for a General Stream Adjudication in the Oklahoma Supreme Court on February 10, 2012, asking that court to assume original jurisdiction and determine the relative rights of all parties laying claim to waters which are the subject of the Federal Court case, pursuant to the federal McCarran Amendment, 43 U.S.C. § 666.  Under the McCarran Amendment, such proceedings may be brought in either federal or state court, with the United States waiving its sovereign immunity if all interested parties are joined so that all rights can be determined in one proceeding.  In a move surprising to many, the Oklahoma Supreme Court on February 23, 2012 unanimously agreed to accept original jurisdiction of the case and set a briefing schedule. 

Not to be outdone, the Chickasaw and Choctaw Nations filed a Motion for Partial Summary Judgment in the Federal Court case on February 14, 2012, essentially asking the federal court to enjoin the Oklahoma Supreme Court from making a determination of the relative rights of the parties to the water.  In this motion the tribes “clarified” that their case is not one that seeks adjudication of water rights, nor do they seek to determine the full extent of their regulatory authority over the water.  The Nations contend that federal law does not allow the defendants to “drain the Treaty Territory waters in whatever quantity and for whatever purposes….without regard to the Nations’ rights…”  Motion for Partial Summary Judgment Brief, p. 15.  As a result of this filing, the Nations’ position is much less clear than before when they were seeking exclusive dominion and control over the same water. 

The Defendants have filed motions to stay briefing on the Tribes’ Motion for Partial Summary Judgment.  Their arguments include assertions that the federal court lacks jurisdiction over the subject matter of the action; the case is barred because it violates the state’s Eleventh amendment immunity in the relief sought against the OWRB defendants; and there is a failure to join indispensable parties (the U.S. and the OWRB).  Interestingly, the Defendants also ask the federal court to abstain from addressing the merits of the Federal Court case in deference to the General Stream Adjudication suit where the Oklahoma Supreme Court has assumed original jurisdiction pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). 

And it gets worse.  On February 20, 2012 the Association for the Protection of Oklahoma Water (“APOW”) filed suit claiming irregularities in the OWRB’s authorization process for requesting a General Stream Adjudication.  The suit alleges that the OWRB went into executive session to discuss the Federal Court case filed by the Chickasaw and Choctaw Nations and came out of the meeting with a motion authorizing the stream adjudication, in violation of the Oklahoma Open Meeting and Open Records Acts.  If the General Stream Adjudication request was filed as the result of improper authorization, presumably that proceeding could be dismissed.  However, assuming the Oklahoma Supreme Court agreed with APOW’s contention, it might decide to stay the proceedings until the OWRB authorized another General Stream Adjudication request in accordance with state law.   The original General Stream Adjudication case could then proceed or, if necessary, a new original action could be filed. 

This is high stakes litigation between powerful sovereigns pitting the decision making role of the federal courts against that of a state supreme court.  The jurisdictional dispute involving the state’s desire to avoid piecemeal litigation and seek a comprehensive determination of the rights of all parties in one action in state court as envisioned by the McCarran Amendment, versus the Nations’ interest in having their treaty rights determined in federal court, will be fascinating to watch.  The substantive supremacy issues go to the heart of how dispute resolution occurs within a federal system, and the ultimate winner of this struggle will realize significant revenue for many years to come. 

There is always the possibility that a negotiated settlement could let the courts off the hook.  With the stakes being so high, both sides are already flinching, as evidenced by the lack of clarity in the filings made by both sides in the Federal Court case.  However, sooner or later each party will have to tell the court exactly what it is asking the court to do, unless the parties settle.  Those looking to see whether a settlement is possible may well be interested in the outcome of an upcoming hearing in the General Stream Adjudication case.  According to an Oklahoma City newspaper, such a hearing is planned in April before a Supreme Court referee. 

Again, the words “stay tuned” are particularly appropriate.  

PostScript:
After this blog was written but before posting, the U.S. Justice Department on March 12, 2012 removed the General Stream Adjudication case from the Oklahoma Supreme Court to the US District Court in Oklahoma City, but it landed in a different federal court than the one where the Chickasaw case is pending.  The Judge asked for briefs by March 27 on whether the cases should be consolidated, and the City of Oklahoma City filed a Motion to Remand the streamwide adjudication on March 19, 2012.  Hold on, these cases are moving at the speed of light.

Minimum Streamflow in Arkansas

Posted on November 30, 2007 by Brian Rosenthal

  With some exceptions and common law developed standards, Arkansas has traditionally followed the reasonable use theory of the riparian doctrine. A riparian user must use water in a manner that is reasonable compared to others’ rights  (including as to ground water). 

            As a mid-south state, Arkansas receives a moderate amount of rain per year (approximately 49.19 inches on average since 1895 compiled from the Arkansas Natural Resource Commission’s Arkansas Ground Water Protection and Management Report for 2006). Stress on the amount, use of and quality of its underground aquifers, primarily in east and southeast Arkansas, have  resulted in increased scrutiny and planning for alternate water sources, including from conservation, recovery and surface water.        

            Arkansas has no current active system in operation for regulating water usage.  The Arkansas Natural Resources Commission, however, is directed to monitor our state’s water resources and can set minimum streamflows by rulemaking (but this step requires consultation with other state agencies). Water needs to be considered are domestic and municipal water supplies; agricultural and industrial; navigation; recreational; fish and wildlife and other ecological needs. The regulations and laws describe preferences and priorities, but are untested in practice.

            Minimum streamflows are to be set on a case by case basis, defining such stream flows as the “quantity of water required to meet the largest of the following instream flow needs as determined on a case-by-case basis:” (1) interstate compacts, (2) navigation, (3) fish and wildlife, (4) water quality, and (5) aquifer recharge. 

            After minimum flows are established, non-riparian permits may be applied for from “excess surface water.” Excess surface water means twenty-five percent (25%) of the amount of water available on an average annual basis from any watershed basin above that amount required to satisfy all of the following:

                        1.         Existing riparian rights as of June 28, 1985

                        2.         The water needs of federal water projects existing on June 28, 1985

                        3.         The firm yield of all reservoirs in existence on June 28, 1985

                        4.         Maintenance of instream flows for wish and wildlife, water quality, aquifer recharge requirements, and navigation

                        5.         Future water needs of the basis of origin as projected in the State’s Water Plan

                        6.         Additionally, in the White River Basin, permitted transfers may not exceed on a monthly basis an amount that is 50% of the monthly average.

           

Minimum streamflow is important because of its relevance to the Commission’s planning in the case of a possible shortage. Separate and apart from its use in this way, minimum streamflows are also used to determine when excess surface water is available for transfers to nonriparians.

            These standards may be reviewed in the near future to begin establishing minimum streamflows and potentially, associated protected levels, which the Commission may attempt to implement by rule under shortage conditions. The White River is scheduled as the first river to be reviewed in conjunction with the Memphis District Corps of Engineers’ Grand Prairie Area Demonstration Project.  While such irrigation projects were unusual in eastern states, another such project is on the horizon with the Corps’ November 2007 Record of Decision issued for the Bayou Meto Basin of Arkansas.    

            Thus, Arkansas’s riparian rights doctrines are yielding to state systems of oversight based on depleted aquifers and increased demands. For more information on Arkansas’s water resources and rules, click here.

Minimum Streamflow in Arkansas

Posted on November 30, 2007 by Brian Rosenthal

 With some exceptions and common law developed standards, Arkansas has traditionally followed the reasonable use theory of the riparian doctrine. A riparian user must use water in a manner that is reasonable compared to others’ rights  (including as to ground water). 

            As a mid-south state, Arkansas receives a moderate amount of rain per year (approximately 49.19 inches on average since 1895 compiled from the Arkansas Natural Resource Commission’s Arkansas Ground Water Protection and Management Report for 2006). Stress on the amount, use of and quality of its underground aquifers, primarily in east and southeast Arkansas, have  resulted in increased scrutiny and planning for alternate water sources, including from conservation, recovery and surface water.        

            Arkansas has no current active system in operation for regulating water usage.  The Arkansas Natural Resources Commission, however, is directed to monitor our state’s water resources and can set minimum streamflows by rulemaking (but this step requires consultation with other state agencies). Water needs to be considered are domestic and municipal water supplies; agricultural and industrial; navigation; recreational; fish and wildlife and other ecological needs. The regulations and laws describe preferences and priorities, but are untested in practice.

            Minimum streamflows are to be set on a case by case basis, defining such stream flows as the “quantity of water required to meet the largest of the following instream flow needs as determined on a case-by-case basis:” (1) interstate compacts, (2) navigation, (3) fish and wildlife, (4) water quality, and (5) aquifer recharge. 

            After minimum flows are established, non-riparian permits may be applied for from “excess surface water.” Excess surface water means twenty-five percent (25%) of the amount of water available on an average annual basis from any watershed basin above that amount required to satisfy all of the following:

                        1.         Existing riparian rights as of June 28, 1985

                        2.         The water needs of federal water projects existing on June 28, 1985

                        3.         The firm yield of all reservoirs in existence on June 28, 1985

                        4.         Maintenance of instream flows for wish and wildlife, water quality, aquifer recharge requirements, and navigation

                        5.         Future water needs of the basis of origin as projected in the State’s Water Plan

                        6.         Additionally, in the White River Basin, permitted transfers may not exceed on a monthly basis an amount that is 50% of the monthly average.

           

Minimum streamflow is important because of its relevance to the Commission’s planning in the case of a possible shortage. Separate and apart from its use in this way, minimum streamflows are also used to determine when excess surface water is available for transfers to nonriparians.

            These standards may be reviewed in the near future to begin establishing minimum streamflows and potentially, associated protected levels, which the Commission may attempt to implement by rule under shortage conditions. The White River is scheduled as the first river to be reviewed in conjunction with the Memphis District Corps of Engineers’ Grand Prairie Area Demonstration Project.  While such irrigation projects were unusual in eastern states, another such project is on the horizon with the Corps’ November 2007 Record of Decision issued for the Bayou Meto Basin of Arkansas.    

            Thus, Arkansas’s riparian rights doctrines are yielding to state systems of oversight based on depleted aquifers and increased demands. For more information on Arkansas’s water resources and rules, click here.