Federal Reserved Federal Reserved Water Rights in UtahWater Rights in Utah

And, some thoughts on And, some thoughts on Management of the Colorado Management of the Colorado River and Protection of Flow River and Protection of Flow

for Endangered Fishesfor Endangered Fishes

Norman K. Johnson 2011 Utah Water Users

WorkshopMarch 15-16, 2001

The Dixie Center, St. George, Utah

J. Golden KimballJ. Golden Kimball

Let’s not get “Out of Order!”Let’s not get “Out of Order!”

Western Water Law—Western Water Law—Origin and HistoryOrigin and History

In the arid West areas of water use were In the arid West areas of water use were often located far from sources of supplyoften located far from sources of supply

Miners built diversions and moved Miners built diversions and moved

waterwater Their “first in time/first in right” Their “first in time/first in right”

mining principles carried over tomining principles carried over to

water rightswater rights The doctrine of “prior appropriation” of water The doctrine of “prior appropriation” of water

waswas

was born (mid to late 1800s)was born (mid to late 1800s)

Western Water Law—Western Water Law—Origin and HistoryOrigin and History

The federal government supported The federal government supported growth and development of this “new” growth and development of this “new” water lawwater law

1866 Mining Act; 1877 Desert Land Act1866 Mining Act; 1877 Desert Land Act The U.S. Supreme Court said these acts The U.S. Supreme Court said these acts

severed the land and water estates and severed the land and water estates and directed that water rights be obtained directed that water rights be obtained under the laws of the territories and under the laws of the territories and statesstates

Western Water Law—Western Water Law—Origin and HistoryOrigin and History

Appropriative water rights became Appropriative water rights became constitutionally protected property rightsconstitutionally protected property rights

Their basis is the beneficial use of waterTheir basis is the beneficial use of water They are defined by quantity, time, and They are defined by quantity, time, and

nature of use and can be lost by non-usenature of use and can be lost by non-use Priority date is when beneficial use beganPriority date is when beneficial use began They are transferableThey are transferable

Reserved Rights DoctrineReserved Rights Doctrine—Origin and History—Origin and History

At the same time the appropriation doctrine At the same time the appropriation doctrine was developing, federal reservations of was developing, federal reservations of land were being madeland were being made

Congress and the President set aside public Congress and the President set aside public landland

for special purposes, suchfor special purposes, such

as Indian reservations,as Indian reservations,

but did not createbut did not create

accompanying water rightsaccompanying water rights

Reserved Rights DoctrineReserved Rights Doctrine—Origin and History—Origin and History

In 1906 the U. S. brought suit on behalf In 1906 the U. S. brought suit on behalf of the Fort Belknap Reservation Indians of the Fort Belknap Reservation Indians to secure water rights for themto secure water rights for them

Defendant farmers/ranchers protested, Defendant farmers/ranchers protested, saying they had valid water rights saying they had valid water rights created under Montana lawcreated under Montana law

The suit created a genuine dilemmaThe suit created a genuine dilemma

Reserved Rights DoctrineReserved Rights Doctrine—Origin and History—Origin and History

In 1908 the Supreme Court issued its In 1908 the Supreme Court issued its Winters Winters decision decision

It said Congress, when it created the It said Congress, when it created the reservation, must have impliedly reservation, must have impliedly intended to reserve water for the intended to reserve water for the Indians Indians

The “reserved rights” doctrine was bornThe “reserved rights” doctrine was born It was judicially created and definedIt was judicially created and defined

Reserved Rights DoctrineReserved Rights Doctrine—Origin and History—Origin and History

In In Arizona v. CaliforniaArizona v. California (1963) the U. S. (1963) the U. S. Supreme Court said the reserved rights Supreme Court said the reserved rights doctrine applies to federal reservations doctrine applies to federal reservations other than Indian reservationsother than Indian reservations

For Indian Reservations it said the For Indian Reservations it said the number of practicably irrigable acres number of practicably irrigable acres on the reservation (PIA) is used to on the reservation (PIA) is used to quantify the right quantify the right

Reserved Rights DoctrineReserved Rights Doctrine—Origin and History—Origin and History

Subsequent case law further Subsequent case law further defined the reserved water right defined the reserved water right doctrinedoctrine

Cappaert v. U.S. Cappaert v. U.S. (1976) – the(1976) – the

amount of water reserved is theamount of water reserved is the

minimum amount necessary tominimum amount necessary to

fulfill reservation purposesfulfill reservation purposes U.S. v. New Mexico U.S. v. New Mexico (1978) – (1978) –

primary purposes only get primary purposes only get

reserved water rightsreserved water rights

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights Reserved water rights are important Reserved water rights are important

property interestsproperty interests Their basis is the creation of reservationsTheir basis is the creation of reservations The purpose of the reservation defines The purpose of the reservation defines

them (PIA for Indian reservations)them (PIA for Indian reservations) Priority date is creation of the reservationPriority date is creation of the reservation They are not lost by non-useThey are not lost by non-use

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights In addition to having very different In addition to having very different

characteristics than appropriative characteristics than appropriative water rights, the more pressing water rights, the more pressing problem is that reserved water rights problem is that reserved water rights are un-quantified when createdare un-quantified when created

Given their early priority dates, they Given their early priority dates, they may compete with State-created may compete with State-created water rights water rights

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights Utah, an arid state, has Utah, an arid state, has many federal many federal reservations — federal reservations — federal lands set aside for lands set aside for specific purposes, like specific purposes, like Indian reservations, Indian reservations, national parks and national parks and monuments, military monuments, military bases, etc.bases, etc.

How should these rights How should these rights be quantified?be quantified?

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights States have taken different approaches:States have taken different approaches:

In times past, pretend reserved rights don’t In times past, pretend reserved rights don’t existexist

Litigate about reserved rightsLitigate about reserved rights Negotiate such rights on a case-by-case basisNegotiate such rights on a case-by-case basis

Utah has chosen to negotiate because Utah has chosen to negotiate because the other approaches have been the other approaches have been unsuccessful unsuccessful

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights Utah has negotiated reserved Utah has negotiated reserved

water rights for Zion National water rights for Zion National Park, a watershed in the Dixie Park, a watershed in the Dixie National Forest, Cedar Breaks, National Forest, Cedar Breaks, Hovenweep, Promontory, Hovenweep, Promontory, Rainbow Bridge, Timpanogos, Rainbow Bridge, Timpanogos, and Natural Bridges National and Natural Bridges National Monuments and the Shivwits Monuments and the Shivwits Indian ReservationIndian Reservation

Reserved Rights vs. Reserved Rights vs. Appropriative Water Appropriative Water

RightsRights We are working on an agreement for We are working on an agreement for

Arches National Park Arches National Park We are close to agreement with the Ute We are close to agreement with the Ute

Indian TribeIndian Tribe We are working with the Navajo NationWe are working with the Navajo Nation Both the Ute and Navajo settlements Both the Ute and Navajo settlements

involve water from the Colorado Riverinvolve water from the Colorado River

COLORADEO RIVER COLORADEO RIVER CHALLENGESCHALLENGES

Optimizing Use of Remaining Allocation (and Optimizing Use of Remaining Allocation (and integrating federal reserved water rights)integrating federal reserved water rights)

Assuring Continued River Use (ESA/Fish Assuring Continued River Use (ESA/Fish Flows) Flows)

Protecting Project Investments (Priority Protecting Project Investments (Priority Issues)Issues)

Keeping Peace with SisterKeeping Peace with Sister

States and MexicoStates and Mexico Studying CurtailmentStudying Curtailment

issuesissues

                               

COLOARDO RIVER COLOARDO RIVER OPPORTUNITIESOPPORTUNITIES

Negotiate Indian Water RightsNegotiate Indian Water Rights Negotiate Other Federal Reserved Negotiate Other Federal Reserved

Water RightsWater Rights Solve ESA Issues throughSolve ESA Issues through

RIPRAP ComplianceRIPRAP Compliance ImplementImplement

Multipurpose ProjectsMultipurpose Projects

Utah/Navajo Reserved Water Right Negotiations

Navajo has substantial Winters rights

Compacts require Navajo’s rights come from Utah’s share

Utah and Navajo have worked to resolve

Utah must make a financial commitment

NAVAJO NATION

SETTLEMENT PROPOSAL

81,500 AF Water Depletion $156 Million in Projects Subordination to Existing Rights Consideration for Local Communities Emphasis on Drinking Water 5% of cost ($8M) = State Share

LIABILITY POTENTIAL PIA = 166,500+ AF Expensive, Unpredictable Litigation Non-Indian Priority Conflict

BENEFITS OF A BENEFITS OF A SETTLEMENT SETTLEMENT AGREEMENTAGREEMENT

Quantify a Significant Reserved Water RightQuantify a Significant Reserved Water Right Avoid Costly Litigation and Uncertain OutcomeAvoid Costly Litigation and Uncertain Outcome Improve Quality of Life for Utah Navajo PeopleImprove Quality of Life for Utah Navajo People Provide Certainty for Utah’s Water UsersProvide Certainty for Utah’s Water Users

CUP/Wasatch FrontCUP/Wasatch Front Uintah Basin and San Juan County Uintah Basin and San Juan County Lake Powell PipelineLake Powell Pipeline

Protect Current Water RightsProtect Current Water Rights Solve Colorado River IssueSolve Colorado River Issue

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

The Colorado River The Colorado River Basin is home to four Basin is home to four fishes listed under the fishes listed under the federal Endangered federal Endangered Species Act (ESA)Species Act (ESA) Humpback ChubHumpback Chub Colorado PikeminnowColorado Pikeminnow Razorback SuckerRazorback Sucker Bonytail Chub Bonytail Chub

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

Congress enacted ESA in 1973Congress enacted ESA in 1973 It requires federal agencies to conserve It requires federal agencies to conserve

species listed under the Actspecies listed under the Act It prohibits anyone from “taking” a species It prohibits anyone from “taking” a species

listed as endangeredlisted as endangered ““Taking” is broadly defined and might include Taking” is broadly defined and might include

diverting water from listed species habitatdiverting water from listed species habitat ““Reasonable and prudent alternative” neededReasonable and prudent alternative” needed

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

The ESA has caused dramatic results in The ESA has caused dramatic results in the Columbia and Klamath River Basins the Columbia and Klamath River Basins (managing for the salmon) and in the (managing for the salmon) and in the tributaries of California’s Bay Delta tributaries of California’s Bay Delta (managing to protect the Delta Smelt)(managing to protect the Delta Smelt)

In effect, federal judges have become In effect, federal judges have become the equivalent of the State Engineer in the equivalent of the State Engineer in some placessome places

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

Some 40 years after ESA’s enactment, Some 40 years after ESA’s enactment, states have three choices:states have three choices: LegislateLegislate Litigate orLitigate or CooperateCooperate

Efforts to legislate or litigate regarding Efforts to legislate or litigate regarding ESA have been unsuccessfulESA have been unsuccessful

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

The Upper Basin States chose to be The Upper Basin States chose to be proactive and implement a recovery plan proactive and implement a recovery plan for the Colorado River endangered fishesfor the Colorado River endangered fishes

This gives Utah and the other three This gives Utah and the other three states an opportunity to be full partners states an opportunity to be full partners in recovery implementation and to use in recovery implementation and to use water resources while recovery efforts water resources while recovery efforts proceed proceed

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

The program consists of two parts: The program consists of two parts: The Recovery Implementation Plan (RIP)The Recovery Implementation Plan (RIP) The Recovery Action Plan (RAP)The Recovery Action Plan (RAP)

The RIP is what we want to do to The RIP is what we want to do to recover endangered fishesrecover endangered fishes

The RAP is how we’re going to do itThe RAP is how we’re going to do it RIPRAP emphasizes science not RIPRAP emphasizes science not

politicspolitics

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

Ultimately, recovery would mean ESA Ultimately, recovery would mean ESA issues would be resolved issues would be resolved

Meantime, the RIPRAP means Utah can Meantime, the RIPRAP means Utah can continue to develop its water resourcescontinue to develop its water resources

No RIPRAP compliance means both No RIPRAP compliance means both existing and future diversions may be in existing and future diversions may be in question and could be prohibitedquestion and could be prohibited

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

The two most important elements of The two most important elements of the RIPRAP are: non-native species the RIPRAP are: non-native species control (bass and pike) and habitat control (bass and pike) and habitat protectionprotection

Habitat protection means facilitation of Habitat protection means facilitation of reintroduction of fry, predator control, reintroduction of fry, predator control, creating backwaters, and fish flow creating backwaters, and fish flow sufficiency, which is critical to recoverysufficiency, which is critical to recovery

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

Flow recommendations, or flow Flow recommendations, or flow targets, are set based on 20 years of targets, are set based on 20 years of studiesstudies

The fish are resilient and can survive The fish are resilient and can survive drought, but also need years of drought, but also need years of significant flow to reproducesignificant flow to reproduce

The RIPRAP seeks a balance between The RIPRAP seeks a balance between the needs of fish and water usersthe needs of fish and water users

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

Given use projections, the Given use projections, the “pinch point” for flows is “pinch point” for flows is Reach 3 on the Green Reach 3 on the Green RiverRiver

Generally, flow is sufficientGenerally, flow is sufficient How to assure future flows How to assure future flows

are not jeopardized?are not jeopardized? Exercising the Lake Powell Exercising the Lake Powell

Pipeline water right may Pipeline water right may provide a win/win/win provide a win/win/win opportunity re fish flows opportunity re fish flows

Reach 1

Reach 2

Reach 3

Another Colorado River Another Colorado River Challenge—Fish FlowsChallenge—Fish Flows

If the LPP water right If the LPP water right is exercised as a is exercised as a Flaming Gorge storage Flaming Gorge storage right with a point of right with a point of re-diversion at Lake re-diversion at Lake Powell, then flows Powell, then flows would be protectable would be protectable through Reach 3through Reach 3

This may require a This may require a limitedlimited modification to modification to existing in-stream lawexisting in-stream law

Reach 1

Reach 2

Reach 3

Questions ?

The End