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The Year in Review

Environment, Energy, and Resources Law: The Year in Review 2022

Water Resources Committee Report


  • The Water Resources Committee Report for YIR 2022.
  • Summarizes significant judicial and administrative legal developments in 2022 in the area of water resources.
Water Resources Committee Report
Daniel Balakov via Getty Images

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Federal Developments

A. Alaska

1. Judicial

The federal government, through the North Pacific Council (Council), has jurisdiction over the federal waters of Cook Inlet. However, there has been long-standing ambiguity regarding who would manage the fisheries that require conservation and management in those waters. In 2010, the Council reviewed a Salmon Federal Management Plan (FMP), which was supposed to allow the State of Alaska to regulate Cook Inlet fisheries, and determined that the FMP language did not implicitly exempt Cook Inlet “as previously assumed.” The Council and National Marine Fisheries Service (NMFS) promulgated a new rule, this time attempting to explicitly exclude Cook Inlet fisheries from federal governmental management. However, the court, relying on the Ninth Circuit’s decision in United Cook Inlet Drift Association v. National Marine Fisheries Service, held the Magnuson-Stevens Fishery Conservation and Management Act prohibited the federal government from delegating its management authority over fisheries to the state. Accordingly, the Cook Inlet FMP exclusion, in this case, was improper and the court immediately vacated the changes to the FMP, bringing Cook Inlet fisheries back under the management of the federal government.

The United States of America and Kuskokwim River Inter-Tribal Fish Commission sought a preliminary injunction “to prohibit Defendants from continuing to authorize or implement actions that contravene the rural Alaskan subsistence priority and are preempted by federal law .” The Alaska National Interest Lands Conservation Act (ANILCA) provides priority to rural subsistence hunters and anglers on federal lands and waters within Alaska over other consumptive uses. The Alaska U.S. District Court granted the preliminary injunction because ANILCA preempted Alaska’s authorization of all Alaskans to subsistence fish and hunt.

In 2021, the Alaska U.S. District Court ruled that a statute passed by Congress in 1891 (1891 Act) did not grant the Metlakatlan Indian Community the right to fish in off-reservation waters, even in areas they had fished for time immemorial. That decision was appealed. On September 8, 2022, the Ninth Circuit held that because Congress knew that the Metlakatlan people were fishing in off-reservation waters when the 1891 Act was passed, it intended for the Metlakatlan people to maintain their ability to fish off-reservation. Accordingly, the Ninth Circuit reversed and remanded the decision of the district court.

B. Arizona

1. Judicial

In 2003 , the Navajo Nation sued the Department of Interior and other federal agencies for, among other claims that were dismissed, a breach of trust claim for the government’s failure to consider the Nation’s need for mainstream Colorado River water in Navajo Nation v. Dep't of Interior (Navajo I). The Ninth Circuit Court of Appeals in 2022, found the district court erred in dismissing the Navajo Nation’s breach of trust claim because the Nation’s claim for injunctive relief was not within the Supreme Court’s exclusive jurisdiction to determine water rights, was not futile, and was not barred by res judicata. The Ninth Circuit remanded the Nation’s claim to the district court with instructions to allow the Nation to amend its complaint. On November 4, 2022, the United States Supreme Court granted certiorari to consider the case. The questions presented include whether the case impedes on the Court’s exclusive jurisdiction over the allocation of water from the Lower Basin of the Colorado River mainstream and whether a breach of trust claim can be solely based on the implied rights to water under the Winters doctrine.

2. Legislative

The United States House of Representatives, on July 29, 2022, approved the Hualapai Tribe Water Rights Settlement Act that would allocate 4,000 acre-feet per year of mainstem Colorado River water to the Arizona community, among other provisions.

The United States Congress passed at least two laws in late 2021 and 2022 that authorized funds to support water supply infrastructure and drought resilience in western states, including Arizona.

3. Administrative

On October 28, 2022, the Secretary of the Interior announced the Secretary’s intent to publish a Notice of Intent to prepare a Supplemental Environmental Impact Statement to include proposed alternatives regarding the December 2007 Record of Decision associated with the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead that could include further impacts to water supply allocations of Colorado River users.

C. Kansas

1. Judicial

A lawsuit over water supply at a central Kansas wildlife refuge continued in 2022, with Audubon of Kansas (Audubon) appealing the 2021 dismissal by the U.S. District Court for the District of Kansas, in Audubon of Kansas, Inc. v. United States Department of Interior. On appeal, Audubon has argued that the federal government defendants acted illegally by not requesting administration of the junior groundwater rights that are impairing a senior surface water right held by the Service for the benefit of Quivira National Wildlife Refuge and specifically that their failure to do so constituted final agency action under the Administrative Procedure Act.

D. Nevada

1. Judicial

On September 1, 2022, the U.S. District Court for the District of Nevada, in Baker Ranches, Inc. v. Zinke, ruled prior appropriators did not have a right-of-way in Great Basin National Park to access a natural channel of a creek.

On August 5, 2022, the U.S. District Court for the District of Nevada, in Mono County v. Walker River Irrigation District, denied a motion to dismiss in a long-running proceeding regarding the adjudication of water of the Walker River.

E. North Dakota

In 2021, North Dakota, the Garrison Diversion Conservancy District (Garrison Diversion), and Federal defendants prevailed over Missouri in litigation filed in the Western District of Missouri in State of Missouri v. United States Dep’t of Interior. Missouri filed suit against the Bureau of Reclamation, Army Corps of Engineers, various federal officials, and Garrison Diversion challenging compliancewith the National Environmental Policy Act (NEPA) and the Water Supply Act of 1958 for the Central Dakota Project. The State of North Dakota intervened as a defendant.

Missouri claimed that the Bureau failed to adequately analyze adverse impacts and mitigation measures, and to adequately consider reasonable alternatives. The Court found that Missouri did not meet its burden of proving there was a failure to adequately consider or disclose any adverse impacts from the Central Dakota Project and thus that the Bureau’s Finding of No Significant Impact (FONSI determination was supported by a rational basis. Because the Court upheld the FONSI, the Court subsequently dismissed Missouri’s additional claims and granted summary judgment in favor of the Defendants.

Missouri appealed to the Eighth Circuit Court of Appeals, and an oral argument was held on November 16, 2022.

After more than a decade of litigation, two legislative changes, and three trips to the North Dakota Supreme Court, Wilkinson v. Board of University & School Lands has reached final disposition. The Wilkinson case began in 2012 as a title dispute between the Plaintiffs and the State over mineral ownership in Williams County, North Dakota, in the heart of the Bakken Shale formation. In addition, several oil operators were also named Defendants.

When the federal government constructed Garrison Dam on the Missouri River as part of the 1944 Flood Control Act, it purchased the Wilkinsons’ land with the intention of flooding it as part of the creation of Lake Sakakawea. However, the federal government allowed the Wilkinsons to retain their mineral rights. Because the Missouri River is a navigable waterbody, the State took title to the riverbed up to the ordinary high watermark at statehood under the equal footing doctrine. This ownership interest includes minerals.

In 2014, the Plaintiffs brought an Amended Complaint alleging unconstitutional takings under both the United States and North Dakota Constitutions; conversion; constructive trust and unjust enrichment; civil conspiracy; and 42 U.S.C. § 1983 violations.

The Plaintiffs were focused primarily on their takings claims and associated damages, as well as a request for attorney’s fees, for a total claim of approximately $2.9 million. The State prevailed, and the Plaintiffs appealed for the final time to the Supreme Court. The Supreme Court concluded “the district court did not err in dismissing these [takings, conversion, unjust enrichment, civil conspiracy, and 42 U.S.C. §1983] claims and denying damages, costs, and attorney’s fees.”

F. Eastern States

1. Florida

In Town of Indian River Shores v. City of Vero Beach, the Town of Indian River Shores (Town) sued the City of Vero Beach (City) for anticompetitive harm arising from a water access dispute. This dispute resulted from a 1989 Service Territory Agreement between the City and Indian River County (County). The 1989 agreement states, “the County shall not provide water or sewer service within the Service Area without the written approval of the City .” The Town alleged that the agreement precludes it from obtaining water, wastewater, and reuse water services from the County in the future and “constitutes an unreasonable and unlawful restraint on trade, which deprives the Town and its residents from obtaining the benefits of competitive service offerings ” relating to water services. The U.S. District Court denied the City’s motion to dismiss the claim.

The court was tasked with deciding whether the alleged anticompetitive water access was an “inherent, logical, or ordinary result—and thus a foreseeable result—of state law authorizing municipalities to establish public utilities for water services” under Florida law (Florida Statutes sections 180.02, 180.03, 180.06). These Florida statutes authorize the establishment of public utilities for water services within Florida municipalities. The court held that the City’s conduct was not an inherent, logical, or ordinary result of state law since Florida law limits a municipality from encroaching upon the boundaries of another municipality when developing water services and water access. The court further stated that the Florida legislature, by authorizing municipalities to develop public utilities for water services, contemplated the anticompetitive conduct alleged here (a horizontal market allocation between two local government entities). But this contemplation does not lead to the authorization of granting one municipality exclusive market control over the water services of another incorporated municipality since the statute “limits the exercise of municipal corporate powers within the corporate limits of another municipality .”


2. Maryland

The Fourth Circuit Court of Appeals took on the task of deciding whether Montgomery County (County) complied with the Religious Land Use and Institutionalized Person’s Act (RLUIPA) and the Free Exercise Clause of the First Amendment to the United States Constitution when the court denied water change requests submitted by Canaan Christian Church (Canaan) in Canaan Christian Church v. Montgomery County. The water change requests occurred when Canaan sought to buy and develop land that had been bound by decades of land use regulations that tended to restrict water access development for non-religious and religious purposes.

In this case, the court looked to the controlling regulation, the Burtonsville Crossroads Neighborhood Plan (BCNP). This master plan expresses that water and sewer access shall not be extended to the property in question “for any use.” The court also looked to the history of denied or deferred water change requests for both religious and secular developments. The County’s history demonstrated the consistency of the County’s decision-making in applying the master plan when reviewing and denying applications for water and sewer extensions. The court articulated that Canaan was “well aware of the regulations restricting the property.” Thus, due to Canaan’s awareness regarding the clear regulations restricting water access on the property and the County’s consistency of denying water change requests for secular and non-secular purposes, the County’s protection of the watershed through restricting water access on this property was not considered discrimination against religious land use development. Thus, the RLUIPA claim failed. Moreover, relating to the First Amendment Free Exercise Claim, Canaan has not shown that the BCNP “is not rationally related to a legitimate governmental interest.” The district court concluded, and the Fourth Circuit confirmed, the County's plan to protect the “‘sensitive’ ‘tributary headwaters, which originate [on] the property’" is a legitimate governmental interest. The court further explains that the BCNP furthers that interest by restricting development to prevent damage to the watershed by restricting water wells, water withdrawals, and sewage systems. Thus, the County's actions withstand rational basis review and do not violate the First Amendment.

  1. State Developments

A. Arizona

1. Legislative

Arizona passed Senate Bill 1740, primarily to authorize a newly constituted board for Arizona’s water infrastructure finance authority to administer a planned $1 Billion investment for long-term water supply augmentation projects, including potential public-private partnerships.

House Bill 2037 added county board of supervisors’ powers to enter agreements with federal, state, and local governments for the acceptance, management, and distribution of federal funds to increase water supply availability for water providers.

To correct a constitutional problem with the prior year’s bill title on the same subject, the Arizona Legislature passed House Bill 2231, authorizing university students to assist small landowner claimants in Arizona’s general stream adjudication cases pro bono, but not in evidentiary hearings.

2. Judicial

Arizona’s long-running stream adjudications continue in the Superior Courts with a special master presiding over contested cases.

3. Administrative

On May 6, 2022, the Arizona Department of Water Resources (ADWR) published a Notice of Final Expedited Rulemaking to update the Department’s 100-year assured water supply rules for subdivisions and designated water providers to conform to current statutes with other minor changes. Updates included addition of the definitions of “gray water” and “gray water reuse system,” along with authority to reduce the estimated water demand for a subdivision with installed gray water reuse systems. A provision was added to clarify that the Director shall not review the physical availability of groundwater for a water provider designation modification in all Active Management Areas when the provider is not requesting a change in a prior groundwater availability determination. Further, the existing material plat change rule was made consistent with the material plat change statute authorized in 2021.

ADWR promulgated minor rule updates effective January 28, 2022. The minor changes included updates to licensing timeframes for some permits, updated references to well construction standards, and updated agency contact information.

B. California

1. Judicial

In Dow v. Lassen Irrigation Co., California’s Third District Court of Appeal held that the Watermaster appointed to administer and implement the 1940 Susan River Water Right Decree (Decree) did not have standing to appeal the trial court’s interpretation of the water users’ rights under the Decree. The Court of Appeal determined that the Watermaster’s “sole interest in the [D]ecree is to serve as an arm of the court in administering and implementing the terms of the [D]ecree in return for compensation,” and that the Watermaster identified no injury to its rights or interests. Further, if the Watermaster cannot implement the Decree as interpreted, the Watermaster’s remedy is to seek relief from the appointment order. Accordingly, the Court of Appeal dismissed the Watermaster’s appeal.

In California Water Curtailment Cases, California’s Sixth District Court of Appeal held that the California State Water Resources Control Board (State Water Board) lacks curtailment authority to regulate pre-1914 water rights pursuant to California Water Code § 1052(a). In California Water Curtailment Cases, senior water right holders challenged by writ of mandate certain water right curtailment notices, issued during the 2014-15 drought, based upon due process and jurisdictional grounds. Although the court held that Water Code § 1052(a) provides the State Water Board with authority to enjoin certain diversions and uses of water, such authority excludes the ability to curtail diversions based on alleged violations of water right priorities among valid pre-1914 water right holders if the water supply is insufficient to satisfy all users. However, the decision addresses only the scope of the State Water Board’s authority under Water Code section 1052(a), and thus the State Water Board is not precluded from properly exercising its authority over pre-1914 appropriative water right holders under the public trust doctrine, applicable emergency regulations, or other appropriate authority.

2. Legislative

In January 2022, the Legislative Analyst’s Office (LAO), the California Legislature’s Nonpartisan Fiscal and Policy Advisor, released its report on Governor Gavin Newsom’s 2022-23 Budget Proposal. The budget proposal earmarked $880 million for water related efforts, and an additional $750 million for drought response activities, which include the following: $200 million for water conservation efforts, $150 million for water storage and reliability efforts, $85 million for improving lands management and fish and wildlife habitat, $65 million for activities addressing immediate drought conditions, and $250 million unspecified.

In May 2022, the Governor released a revised budget proposal that included an additional $1.3 billion for drought resilience and response due to the intensification of the drought conditions since the January budget proposal was released. This included $530 million to support water recycling and groundwater cleanup and other projects. Ultimately, the 2022-23 California State Budget included $3.6 billion over four years for immediate drought support and long-term water resilience. Including the funds allocated in the 2021-22 Budget, California has allocation $8.7 billion for drought resilience and response.

On September 28, 2022, Senate Bill 1157 (SB 1157) was approved and signed into law. As adopted, SB 1157 establishes new per capita use standards and future targets for indoor residential water use at levels much lower and stringent than current standards based upon a new report by the DWR in coordination with the State Water Board. In addition, SB 1157 directs DWR, in coordination with the State Water Board, to conduct necessary studies and investigations to assess and quantify the economic benefit and impacts of meeting the 2030 indoor residential use standard on water, wastewater, and recycled water systems.

The Infrastructure Investment and Jobs Act, signed into law in November 2021, provides funding for fiscal years 2022-2026, including $1.5 billion towards California water storage improvements. The Sites Reservoir was awarded an additional $30 million in funding under the bill and in June, the Bureau of Reclamation broke ground with the B.F. Sisk Dam Safety Modification Project. The project will retrofit the 3.5-mile-long B.F. Sisk Dam to protect it from future seismic events and for public safety.

3. Administrative

In March 2022, a Memorandum of Understanding (MOU) was signed by state and federal agencies, municipal and agricultural water suppliers, and others to advance a term sheet for Phase 2 of the Voluntary Agreements (VAs) for California’s Bay-Delta Water Quality Control Plan (Bay-Delta Plan). The March 2022 MOU describes new terms and conditions related to flow and other measures, including habitat restoration, that could satisfy water quality objectives related to protection of native fish species for Phase 2. The Contra Costa Water District, and in November, three water agencies of the Tuolumne River watershed (San Francisco Public Utilities Commission, Turlock Irrigation District, and Modesto Irrigation District) signed onto the MOU in September and November 2022, respectively. The MOU seeks to meet the objectives of the Bay-Delta Plan through a program that restores habitat, secures new flows for the environment above existing regulatory requirements, expands funding for environmental improvements and water purchases, and establishes a new, collaborative science program to monitor environmental conditions and adapt management over time.

In October, the California Coastal Commission voted to approve the coastal development permit for the Doheny Ocean Desalination Project in Orange County (Doheny Project). The proposed project would have a capacity of five million gallons per day and proposed to discharged around 16% of intake. Notably, it will use slant wells that draw water in from beneath the ocean floor, a more environmentally friendly alternative to open ocean intake.

In November 2022, the California Coastal Commission voted 8-2 to approve a desalination plant in Monterey County. The approval comes amidst significant concerns over high costs, environmental risks, and environmental justice issues. The environmental justice issues stem from concerns that the project will not serve the disadvantaged community where it will be located. Opponents argue the water will flow to wealthier areas in the county. California American Water must still obtain an array of local, state, and federal permits, and resolve a court battle over groundwater rights before construction can begin.

In March 2022, Governor Newsom signed Executive Order (EO) N-7-22, giving the State Water Board much authority to adopt emergency regulations targeted towards urban water suppliers. In May, the State Water Board adopted its first set of regulations pursuant to its authority from EO N-7-22. These regulations required urban water suppliers to conduct a preliminary and annual water shortage assessment. Urban water suppliers must also identify demand reduction actions in their water shortage contingency plans (WSCPs) and implement their Level 2 demand reduction actions by June 2022.

In August 2022, the Shasta Water Association (SWA) received a Notice of Violation and later a Cease and Desist Order from the State Water Board for continued diversions from the Shasta River. The SWA submitted a letter to the State Water Board informing it of SWA’s diversions and explaining the diversions were necessary for the purposes of irrigation, livestock watering, watering trees, and fire suppression. Subsequently, the State Water Board’s enforcement team issued a Notice of Violation informing the SWA that its water diversions were illegal.

In January 2022, the California Department of Water Resources (DWR) released its assessment of Groundwater Sustainability Plans (GSPs) submitted by Groundwater Sustainability Agencies (GSAs) pursuant to the Sustainable Groundwater Management Act (SGMA) for twenty groundwater basins identified as critically overdrafted. Of those twenty, DWR assessed fourteen of those GSPs as “incomplete.” This triggered a 180-day period for those GSAs to correct the identified deficiencies in the GSPs and resubmit the GSPs to DWR. These corrected GSPs were due in July 2022. DWR’s comment period on the resubmitted GSPs closed in September 2022.

C. Colorado


1. Judicial

In Farmers Reservoir & Irrigation Co. v. Arapahoe Cnty. Water & Wastewater Auth., the Colorado Supreme Court analyzed whether the Division 1 Water Court had properly imposed three terms and conditions on Farmers Reservoir and Irrigation Company’s (FRICO) in its decree authorizing FRICO to use seepage water accruing to the Beebe Seep Canal, a use which has been the subject of nearly twenty years of prior litigation.

First, the Supreme Court found that the Water Court had properly imposed a term to limit storage in the reservoir, Milton Lake, to one annual fill from either its senior storage right or the junior storage right that the Reservoir Company sought in the case.

Second, the Supreme Court analyzed a condition to prevent FRICO from diverting water or placing a call under certain water rights when there is water in FRICO’s owe-the-river account (an accounting method which tracks out-of-priority inflows stored in a reservoir). Under those circumstances all inflows of seepage water into Milton Lake must be accounted for as out of priority seepage inflows (OOPSI).

Finally, the Supreme Court found that the Water Court properly exercised ancillary jurisdiction and when it added accounting requirements to the decree regarding releases in and below Milton Lake even though FRICO’s claims concerned water rights accruing above Milton Lake.

The Supreme Court upheld all three terms because they did not infringe on FRICO’s statutory or constitutional rights, and the water court had jurisdiction to impose the terms.

The Colorado Supreme Court issued changes to its procedures regarding decennial abandonment lists under Rule 12. The Court added a subsection permitting the Division Engineer to file motions to correct the final decennial abandonment list to remove water rights if the water rights are mistakenly or inadvertently included on the final decennial abandonment list. The Court also issued changes to the way the water court judge must enter a final judgment and decree confirming the decennial abandonment list. Finally, the Court made procedural changes and clarifications throughout regarding filing requirements, deadlines, and the parties that may request the water court certify an order in a bifurcated case as a final judgment.


2. Legislative


House Bill 22-1316 appropriates about $17 million from the Colorado Water Conservation Board Construction Fund to the Division of Water Resources for specified water-related projects. In 2019, voters approved Proposition DD to permit the taxation of sports betting operations and the use of the revenue to fund state water projects.

Senate Bill 22-028 created the Groundwater Compact Compliance and Sustainability Fund and appropriated the $60 million in federal American Rescue Plan Act (ARPA) revenue to help finance groundwater use reduction efforts in the Rio Grande and Republican River basins.

Senate Bill 22-114 allows a board of county commissioners to apply to the state engineer for designation of a pond as a fire suppression pond. Any request to the state engineer by a board of county commissioners must be preceded by a consultation with the applicable county’s fire protection district or fire authority. While being considered for, or designated as, a fire suppression pond, the act prohibits, with exceptions, the state engineer from ordering any pond to be drained or backfilled.

3. Administrative

2 C.C.R. 408-1 explains that the Department of Natural Resources adopted changes to its rules and regulations for Regulatory Floodplains to provide standards for activities that may impact Regulatory Floodplains in Colorado in order to mitigate the negative impacts of flooding. The primary purpose of the revisions is to make the rules consistent with FEMA’s Risk Mapping, Assessment and Planning Technical References, Guidelines and Standards for Flood Risk Analysis and Mapping Activities, December 1, 2020 and established Colorado Water Conservation Board practices and procedures.

D. Eastern States

1. Illinois

a. Judicial

In Holm v. Kodat, the Supreme Court of Illinois held that riparian owners do not have the right, on non-navigable rivers, to use the entire length of a waterway to cross onto the property of other riparian owners without their permission. The court distinguished its previous ruling in Beacham v. Lake Zurich Property Owners Ass'n where the court held that riparian owners of the bed of a non-navigable natural lake have the right to “reasonable use and enjoyment of the surface waters of the entire lake .” The court explained that a non-navigable lake is sufficiently distinct from a non-navigable river or stream. This distinction is a result of the court’s reasoning that non-navigable rivers do not involve “the difficulties or impracticalities related to establishing and obeying definite property lines.”

2. Maine

a. Legislative

In April 2022 Maine’s Governor signed an amended version of the Act L.D. 906. This Act provides Passamaquoddy Tribal members larger access to clean drinking water by allowing members of the tribe to seek alternative sources of groundwater on Passamaquoddy Native territory. The accessing of water can be conducted without approval from the State of Maine. The act would allow Passamaquoddy Tribal members to drill wells on tribe-owned land to access water and allow for a greater ability to regulate their drinking water and water access. Thus, this ability to drill wells will further the Tribe’s sovereignty as an Indigenous community within the State of Maine.

3. Minnesota

a. Judicial

The Supreme Court of Minnesota ruled that the statutory definition of “public waters” in Minnesota Statutes section 103G.005, subd. 15 controlled, when looking to classify waters as “public water.” The court was asked whether “public water” is based on the statutory definition of “public waters” in section 103G.005, subd. 15 (which states that public waters are “natural and altered watercourses with a total drainage area greater than two square mil es), or the “public waters inventory” that the Department of Natural Resources maintains under Minnesota Statutes section 103G.201. This distinction was important for categorizing the upper portion of Limbo Creek where a ditch project is to be constructed. The project would change or diminish the course of a potential public water. If the statutory definition were to control, and Limbo Creek was considered a public water, the ditch project would have to undergo an environmental assessment worksheet and other potential stringent environmental review.

The court reasoned that the statutory language controlled due to the discrepancy of Limbo Creek’s status as a public water on the Department of Natural Resources’ inventory list and inventory map. The court explained that the complicated history of Limbo Creek and the lack of clarity in the official classifications made it “impossible to rely on the inventory alone for the proper classification of the upper reach of Limbo Creek .” Thus, the court relied on the statutory definition of "public waters" and not on the absence of the water from the inventory list to determine whether the upper reach of Limbo Creek is a public water. But the court further stated that it did not address whether, in general, the inventory or the statutory definition applies when determining the classification of a water as a “public water” and that it is the duty of the state legislature to clarify the definition.

4. New Jersey

a. Judicial

The Superior Court of New Jersey, Appellate Division, decided that the Atlantic City Municipal Utilities Authority’s (Authority) land used for public water supply (located in four municipalities outside of Atlantic City) were subject to the exception to the tax exemption. This decision allowed for the taxation of the water supply lands residing in the four municipalities. The court explained that although the statute states “for the purpose and for the protection of a public water supply ,” the plain language of the statute does not suggest that the Legislature intended to distinguish between the purpose and protection of the water supply. Rather, the court interpreted the language in a general way in which any land used for a public water supply will be subject to local taxation. Additionally, the court further explained that the statute “does not distinguish between lands used for watershed purposes and lands used for other purposes ,” and therefore, all lands used in connection with a public water supply are lands used for the purpose and for the protection of the water supply and are subject to taxation.

5. Vermont

a. Legislative

In July 2022 the Vermont governor approved House Bill 466. This bill establishes a program within the Agency of Natural Resources (ANR) for registration, reporting, and future permitting of surface water withdrawals in the state. Beginning on January 1, 2023, “a person withdrawing 10,000 gallons or more of surface water in a 24-hour period or 150,000 gallons of surface water or more in a 30-day period shall register with ANR .” Information that must be provided at registration include the frequency of withdrawal, the location of the withdrawal, and the rate of withdrawal. Additionally, beginning on January 1, 2023, any person registering a surface water withdrawal must file an annual report with the agency. This annual report must provide the location of each of the withdrawals, the daily maximum withdrawal for each month, the date of the daily maximum withdrawal, and the total amount of the permitted withdrawal for each month. This bill would ensure assessment of reasonable and feasible alternatives to proposed withdrawals, mandate conservation of surface water and efficient use of water when withdrawn, and establish withdrawal limits based on low-flow or drought conditions.

E. Idaho

1. Judicial

In 3G AG LLC v Idaho Department of Water Resources, the Idaho Supreme Court examined whether a groundwater right and a surface water right developed together on the same place of use could be “unstacked.” A water user applied to the Idaho Department of Water Resources (IDWR) for a transfer to move the point of diversion and place of use for a groundwater right. The water user planned to continue to irrigate the existing place of use with the surface water right. IDWR commonly refers to this as “unstacking” water rights. IDWR denied the transfer because approving it would cause an enlargement of the use of the water contrary to Idaho law. IDWR concluded that the proposed transfer would result in an increase in the total number of acres irrigated, because the ground and surface water rights would provide irrigation for 107.8 acres, doubling the 53.9 acres currently irrigated with the “stacked” rights. On appeal, the district court and the Idaho Supreme Court affirmed IDWR’s decision.

2. Legislative

House Bill 748 codifies common law related to the conveyance of water rights. The bill affirms that all appurtenant water rights and approved applications for permit are conveyed with real property unless expressly retained by the seller. The bill also states that the rights and obligations associated with water entitlements are also conveyed with the transfer of real property within irrigation districts, city irrigation systems, ground water districts, and other water delivery entities, including canal companies, ditch companies, and associations.

3. Administrative

On October 21, 2022, IDWR issued an Amended Snake River Basin Moratorium Order, establishing a moratorium on the processing of most new water right applications in the Snake River Basin upstream of Swan Falls Dam. The order covers nearly 50% of the state and places a moratorium on new water rights for the consumptive use of all surface and groundwater, except in limited circumstances. The order exempts small domestic and stockwater uses from the moratorium. The moratorium was put in place to protect existing vested water rights, including minimum stream flow water rights.

F. Kansas

1. Judicial

In Equus Beds Groundwater Management District Number 2 v. Lewis, the Ninth Judicial District Court of Harvey County Kansas is reviewing final action taken in administrative proceedings to consider the City of Wichita’s proposal to modify certain permit conditions related to its Aquifer Storage and Recovery (ASR) Project in the Equus Beds Aquifer (Aquifer).

An ongoing dispute related to proposed changes to the use of water rights whose owners wish to use the rights to supply two central Kansas cities, Water Protection Ass’n of Central Kansas v. David Barfield, P.E., in his Official Capacity as Chief Engineer, Division of Water Resources, Kansas Department of Agriculture v. The City of Hays, Kansas and the City of Russell, Kansas, is now pending before the Kansas Supreme Court. This dispute dates to 2015, when the cities of Hays and Russell (Cities) filed change applications with KDA-DWR requesting that irrigation rights previously owned by the R9 Ranch (Ranch) in Edwards County be converted to municipal use water rights for the Cities (the City of Hays purchased the Ranch in 1995

The Water Transfer Panel, chaired by the Chief Engineer, also convened during 2022 and requested the Kansas Office of Administrative Hearings appoint a presiding officer to conduct a hearing to evaluate the proposed water transfer pursuant to the KWTA.

2. Legislative

The work of the Kansas Legislature’s new House Committee on Water, which replaced the Committee on Rural Revitalization during the 2021 Legislative Session, resulted in the introduction of House Bill 2686 during the 2022 Session.

3. Administrative

A public hearing to consider the renewal of the Sheridan 6 Local Enhanced Management Area (LEMA) was held in July 2022, and a Consolidated Order Designation renewing the Sheridan 6 Local Enhanced Management Plan for 2023-2027 (Consolidated Order) was issued in October 2022. The Consolidated Order restricts groundwater diversions within the LEMA to 122,400 acre-feet total for the period between January 1, 2023, and December 31, 2027, plus any allowable carry-over amount from the January 1, 2018, through December 31, 2022 LEMA term.

A public hearing to consider the renewal of the Northwest Kansas Groundwater Management District No. 4 (GMD4) District-Wide LEMA was also held in July 2022, and a Consolidated Order Designating the Northwest Kansas Groundwater Management District No. 4 Local Enhanced Management Plan for 2023-2027 (Consolidated Order) was issued in November 2022.

The initial public hearing to consider the designation of the Western Kansas Groundwater Management District No. 1 (GMD1) Four-County LEMA in Scott, Lane, Greeley, and Wallace counties was held in October 2022. The proposed Four-County LEMA management plant would limit irrigation pumping of non-vested rights within the LEMA boundary.

G. Montana

1. Judicial

In Twin Creeks Farm & Ranch, LLC v. Petrolia Irrigation District, the Supreme Court affirmed the Water Court’s factual determination that an appropriator failed to rebut the presumption of abandonment following evidence of a long period of nonuse. The Court also concluded that resumption of irrigation after abandonment is a new appropriation with a new priority date, rather than a permissible change to a small portion of the original right that was not abandoned. This meant the resumption of irrigation could not rely on the original priority date, but instead is treated as a new appropriation with a junior priority date.

Montana describes the location of water rights by the legal description of the place of use and point of diversion. In the 1985 Montana Department of State Lands v. Pettibone decision, the Montana Supreme Court held the State owns water rights developed and put to beneficial use on state school trust land, even if the place of use is leased to a private party. The 1985 decision did not address ownership of groundwater rights where a well’s point of diversion is on private land, but the place of use is on land a private party leases from the State. In 2015, the State Department of Natural Resources and Conservation (DNRC) added the State as owner of water rights associated with each of these types of wells. The Montana legislature responded by rescinding the ownership updates and establishing a process by which the State only could become a co-owner by following a process on a case-by-case basis. In Advocates for School Trust Lands v. Montana the Supreme Court upheld the law. The Court concluded that by establishing a process before ownership was updated, the new statute protected the due process rights of water right owners, while at the same time not resulting in a violation of the State’s obligations to the school trust.

In Egan Slough Community v. Flathead County Board of County Commissioners the Montana Supreme Court held a water permit does not create a property right in water the permittee does not have the ability to put to a beneficial use. In 2015, DNRC issued a permit to Montana Artesian Water Company to use groundwater to operate a commercial water bottling plant. In 2018, local citizens passed a zoning initiative that prevented the bottling plant from expanding. The zoning allowed agricultural, but not commercial uses. Montana Artesian sued, claiming that this was a regulatory taking and illegal reverse spot zoning. The court held that that the rezoning was not illegal reverse spot zoning because it was in conformance with the comprehensive plan. It was not a taking because the company’s right to use the permit was only a right to the extent that it was beneficial, which is “irrespective of greater quantity attempted to be appropriated. Because Montana Artesian could not establish the beneficial use amount under the terms of its permit, the Court could not conduct the balancing necessary to determine whether the zoning restrictions resulted in a taking.

In Fortner v. Broadwater Conservation District the Montana Supreme Court addressed the scope of streams regulated under Montana’s Natural Streambed and Land Preservation Act of 1975. The Act protects and preserves “natural rivers and streams and the lands and property immediately adjacent to them . . . . in their natural or existing state .” The Act requires a permit (commonly referred to as a “310 permit”) for projects such as irrigation diversions that occur within the beds or banks of streams under its jurisdiction. The term “stream” defines the jurisdictional scope of the act and includes “any natural, perennial-flowing stream or river .” In Fortner, the Montana Supreme Court held jurisdiction extends to streams that do not currently have perennial flow, but would absent human alterations, even if the alteration occurred prior to the 1975 date the Act took effect. The Court then upheld the hearing examiner’s determination that factual evidence supported historical perennial flow even when some stretches of the stream lose water during certain times of the year.

H. Nebraska

1. Legislative

The Nebraska Legislature approved Legislative Bill 1015. It directs the Department of Natural Resources (DNR) to develop, construct, and operate a canal in Perkins County “consistent with the [South Platte River Compact to] protect[] Nebraska’s full entitlement to flows of the South Platte River.” Neb. Rev. Stat. § 61-303 specifically authorizes DNR to acquire land using “eminent domain,” potentially even in Colorado. Colorado Governor Jared Polis has responded by criticizing Nebraska’s potential encroachment.

The Nebraska Legislature approved Legislative Bill 1023. It directs state agencies to construct a new lake and two marinas. DNR is to develop a 3,600-acre lake at a location of its choice. To that end, DNR may acquire land, hire contractors, and cooperate with natural resources districts. DNR may not dam the Platte River or flood any existing municipalities.

Legislative Bill 809 makes two changes related to Nebraska water law. First, it amends Neb. Rev. Stat. §§ 71-5318 and 71-5322 to give the Department of Environment and Energy (DEE) more discretion in administering funds under the Safe Drinking Water Act. Second, as part of Nebraska’s ongoing effort to give DEE primary dredge-and-fill permitting authority under the Clean Water Act, it amends Neb. Rev. Stat. §§ 81-1508.01, 81-1511, and 81-1511 to create a fund that would administer Nebraska’s dredge-and-fill program.

2. Administrative

A proposal to divert water from the Platte River Basin to the Republican River Basin remains under consideration . According to the applicants, this diversion would only utilize “excess” unappropriated water during wet years, and it would aid the state in complying with the Republican River Compact. Seven objectors and hundreds of commenters complained raising environmental concerns and arguing the transfer would deplete the Platte River.

In 2020, DNR dismissed one of the applicants because it and its customers would not make beneficial use of the water subject to the proposed interbasin transfer. The three remaining applicants then refiled their application to address issues of storage, contract, volume, rate, and timing. The parties refiled motions to dismiss and await a decision from DNR. Appellate review will likely follow.

I. Nevada

1. Judicial

On June 16, 2022, the Supreme Court of Nevada, in Diamond Natural Resources Protection and Conservation Association v. Diamond Valley Ranch, LLC, upheld an order by the Nevada State Engineer approving a Groundwater Management Plan which deviated from prior appropriation and beneficial use. The State Engineer approved a plan requiring all water rights holders to reduce their withdrawals. On appeal, the Supreme Court held the statutes gave the State Engineer the authority to approve a plan deviating from prior appropriation and beneficial use, so long as they consider statutory requirements and vested rights.

2. Administrative

On January 13, 2022, the State Engineer issued Interim Order 1330 amending procedures for review of applications to appropriate or change existing groundwater rights within the Amargosa Desert Hydrographic Basin, Ny County, Nevada.

On January 13, 2022 the State Engineer issued Order 1189A adopting rules to allow multiple points of diversion for water use for mining, milling and dewatering operations within a portion of the Crescent Valley Hydrographic Basin, Lander County, Nevada.

On August 9, 2022, the State Engineer issued Order 1331 establishing the perennial yield for the Dry Valley Hydrographic Basin within Washoe County, Nevada.

On October 12, 2022, the State Engineer issued Order 1332 restoring Order 1302 adopting a Groundwater Management Plan for the Diamond Valley Hydrographic Basin. This order came after the Nevada Supreme Court decision in Diamond Valley Ranch, which reinstated Order 1302.

J. New Mexico

1. Judicial

The New Mexico Supreme Court found that the groundwater forfeiture statute allows partial forfeiture of water rights, even though the statute does not explicitly state that “part” of a water right can be forfeited. The claimant argued that his continued use of a three-acre-feet water right for livestock preserved the total claimed right developed by the predecessor railroad and last used in 1960. The court examined the differences between the language in the surface water statute, which specifies that “all or any part” of the water left unused will be forfeited, and the groundwater statute, which does not have that language. The court found that New Mexico’s Constitution, history and previous statutory interpretations must allow for a partial forfeiture. If partial forfeiture were disallowed, the court said, it would “subvert enforcement of the critical policies of preventing waste and using water to do the greatest good to the greatest number.”

The New Mexico Court of Appeals found that an applicant was not entitled to a post-decision, full evidentiary hearing before the State Engineer when the applicant participated in a hearing on summary judgment, but also found that the district court erred in dismissing the application on the basis of collateral estoppel. Applicant Augustin Plains Ranch, LLC, filed an amended application in 2014 to appropriate underground water in the San Augustin Basin. Several protestants filed motions for summary judgment against the amended application, and the Ranch argued that it was entitled to an evidentiary hearing before the hearing officer made a decision on the merits of the application. The appellate court found that the Ranch was not entitled to a post-decision hearing because the relevant statute requires a hearing only if no hearing previously has been provided. In rejecting the Ranch’s contention that an evidentiary hearing was required, the court found that the statute does not specify what type of pre-decisional hearing would preclude entitlement to a post-decisional hearing. Thus, the summary judgment hearing was enough, and the Ranch was not entitled to an additional hearing after the decision was issued. The appellate court remanded the case to district court, however, because it found that the application of collateral estoppel to dismiss the application was unfair. The court based its conclusion on orders from the State Engineer and the district court regarding the 2007 application that dismissed the application but specifically allowed the Ranch to file an amended application.

The New Mexico Supreme Court determined that regulations allowing a landowner to close public access to segments of public water flowing over private property unconstitutionally infringed on the public’s right to use public water. The New Mexico State Game Commission (Commission) promulgated a series of regulations allowing landowners to close public access to public waters crossing their private property. However, in 1945, the Supreme Court had determined that New Mexico’s Constitution “established a public right to recreate in the waters of New Mexico and that this right is equal to the right of the [land]owners.” Using this precedent, the court found that the regulations were unconstitutional and an impermissible “limitation on the public’s right to recreate and fish in public water.”

K. Oklahoma

1. Judicial

In Purcell v. Parker the Oklahoma Supreme Court held that certain landowners were not given constitutionally adequate notice of stream water permit proceedings held by the Oklahoma Water Resources Board. The Court held that despite the applicant's and agency’s compliance with the explicit notice requirements of Oklahoma stream water statutes, personal notice was required under the circumstances.

One landowner, out of a group of landowners surrounding a small lake, applied to the OWRB for a permit to divert water from the lake for use in oil and gas production. Even though the names and addresses of the other landowners were, in the court’s view “easily discoverable,” the only notice provided of the proposed permit was by newspaper publication. The notice provisions found in Section 105.11 of Title 82 of the Oklahoma Statutes required only that the applicant publish notice of the proposed permit in a newspaper of general circulation of the county where the diversion will occur and in the downstream county. The court held that the provisions of Section 105.11 were constitutionally inadequate when applied to the group of landowners whose names and addresses are known or easily discoverable.

2. Legislative

Senate Bill 1022, effective November 1, 2021, amended a statute delineating the powers and duties of the Executive Director of the Oklahoma Water Resources Board (Board) to authorize the Director to administratively issue water permits without approval by the Board. Ordinarily, applications to make non-domestic use of stream water or ground water must be approved by the Board. State law requires any such action by a public body to be performed in a public meeting by an affirmative vote of a majority of the that body’s members present. Because the Board can meet as few as nine times each calendar year, this process can delay the issuance of some permits by weeks or months.

The new amendment allows certain stream water and ground water permit applications to be issued administratively by the Director instead of by the Board. The new amendments expressly do not authorize the Director to issue permits that are the subject of protests from an interested party. The amendment also excludes permits from a sensitive sole source groundwater basin from the types of permits which may be issued by the Director.

House Bill 3382, effective November 1, 2022, authorized the Oklahoma Water Resources Board to take new punitive measures where water rights violations are discovered. The new bill amends the state’s stream water use law and groundwater use law in similar fashion to discourage water rights violations. The new language authorizes fines of up to five thousand dollars per day of violation, following notice and the opportunity for an administrative hearing.

In addition, the new language explicitly identifies particular types of stream water rights violations that can trigger punitive action, including: unauthorized use of stream water, unauthorized transfer of a water right, the injury, obstruction, or use of waterworks which are unsafe after being notified to repair, the unauthorized severance of a water right from the land to which it was appurtenant, or the violation of an express permit condition associated with a water right. The new statutory language related to groundwater use violations expressly authorizes fines for violations of state groundwater law, agency rules dealing with groundwater use, or for committing “waste” as defined in state groundwater law.

L. Oregon

1. Judicial

The Ninth Circuit Court in Klamath Irrigation Dist. v. United States Bureau of Reclamation found that because “Tribes were required parties who could not be joined due to their sovereign immunity,” the district court properly dismissed this action because the case should not proceed in the Tribes’ absence. At issue were the Tribal reserved water and fishing rights, along with maintaining specific lake levels and instream flows to comply with the Endangered Species Act by the Bureau of Reclamation’s current operating procedures against a challenge by Shasta View Irrigation District, Klamath Irrigation District, and other irrigators, farmers, and water users.

The Ninth Circuit Court in Audubon Soc’y of Portland v Haaland upheld the district court’s finding for the United States Fish and Wildlife Service (FWS) in its Record of Decision (ROD) that the Environmental Impact Statement (EIS) and Comprehensive Conservation Plan (CCP) for five of the six refuges in the Klamath Basin National Wildlife Refuge Complex (Complex) in southern Oregon and northern California did not violate the Kuchel Act of 1964, the National Wildlife Refuge System Improvement Act as amended by the Refuge Improvement Act (Refuge Act), the APA, the National Environmental Policy Act (NEPA), and the Clean Water Act with respect to the Tule Lake and Lower Klamath Refuges in the Complex as it ensured sufficient water quantity in the refuges.

Additionally, the Ninth Circuit upheld the district court’s finding for the FWS in its ROD that the EIS and CCP for the Complex did not violate NEPA, Refuge Act, or the Kuchel Act as to their plan for agricultural leasing and pesticide use which was also consistent with waterfowl management under the Kuchel Act as well as a compatible use under the Refuge Act. Continued livestock grazing was also found compatible with the Refuge Act under the FWS plan.

Finally, the Ninth Circuit Court in Tulelake Irrigation Dist. v. United States Fish & Wildlife Serv. upheld the district court’s finding the FWS adoption of a combined EIS and CCP in the Complex was in accordance with the Kuchel Act when it regulated agricultural uses of leased land in the refuges in accordance with proper waterfowl management. In addition, under the Refuge Act, agriculture on leased land in national wildlife refuges is a “use” and thus subject to a determination by the FWS that its use is compatible with waterfowl management.

2. Legislative

The 2022 Oregon Legislature passed House Bill 4061. The bill prohibits a person from hauling or arranging to haul water to an unregistered or unlicensed cannabis grow site. Requires a water supplier who sells water to the public at a distribution location to maintain records of sales for at least twelve months and provide records to law enforcement or Water Resources Department upon request. It was put into effect on June 3, 2022.

House Bill 4067 reorganizes the statutes related to the governing board for the urban (Multnomah County area) flood safety and water quality district to transition to a permanent board, clarify authority and fortify financial tools and funding available to the board.

The Department of Environmental Quality adopted rule amendments to Oregon Administrative Rule 340-045-0075. The proposed rule amendments are to increase water quality fees effective November 1, 2022, for fiscal year 2023 provided in ORS 468B.051.

The Environmental Quality Commission adopted rule amendments to Oregon Administrative Rule 340-042-0025 to allow Total Maximum Daily Loads to be adopted by rule “to ensure state water quality standards are met and beneficial uses protected.”

M. Texas

1. Judicial

In Pape Partners, Ltd. v. DRR Family Properties LP, the Papes purchased a tract of land that included irrigation rights. When the Papes attempted to record their purchase of water rights with the Texas Commission on Environmental Quality (TCEQ), TCEQ notified DRR Family Properties (DRR) and other landowners that they might own an interest in the water rights. DRR filed a change of ownership form, and TCEQ concluded that DRR owned a portion of the water rights. The Papes then filed a lawsuit against TCEQ seeking a declaratory judgment that the Papes owned all of the tract’s irrigation rights. The district court granted DRR’s motion to dismiss. The Court of Appeals affirmed. The Supreme Court of Texas reversed, holding that “TCEQ lacks jurisdiction to decide conflicting claims of ownership to surface-water rights.”

2. Legislative

At the close of the legislative session in 2021, Texas’ Speaker of the House issued Interim Charges for the House Committee on Natural Resources, asking the Committee to investigate several issues for possible legislative action in 2023, including:

Review the adequacy of current mechanisms used to compensate water right holders when the TCEQ temporarily transfers a water right under an emergency authorization and make recommendations for protecting private property rights of water right holders.

Examine the state’s groundwater management policy and regulatory framework. Include a review of large-scale water transfers and their impact on groundwater resources. Make appropriate recommendations for legislation or state agency action to:

  •  promote the achievement of planning goals under Chapter 36, Water Code;
  •  provide adequate transparency with regard to the permit application process;
  •  further the State’s groundwater quality protection and assess risks posed to groundwater by deteriorated water wells and orphan oil and gas wells; and
  • promote conservation and waste prevention.

N. Utah


House Bill 33 amending Utah’s existing instream flow statute, Utah Code § 73-3-30, by expanding the entities and persons capable of filing and obtaining an instream flow change application was passed. The amendments: (1) add the Utah Division of Forestry, Fire, and State Lands, to the list of state agencies authorized to submit instream flow change application; (2) authorize instream flow use on sovereign lands in addition to in stream use; (3) clarify the purposes for which instream flows may be used; (4) removes the priority subordination provision for instream flows; and (5) in addition to specified state agencies, allows a person with a right to the use of water right to file a fixed time change application for an instream flow.

House Bill 410 enacting the Great Salt Lake Watershed Enhancement Act was passed. The Act expands the duties of the Utah Division of Forestry, Fire, and State Lands and directs the agency to take applications for and oversee the establishment of a Water Trust to enhance, protect, and preserve the Great Salt Lake, including, among other things, retaining or enhancing flows to the Great Salt Lake. Additionally, the Act provides one-time funding of forty million dollars.

Senate Bill 160 amending the makeup of the Colorado River Authority of Utah to include a seventh member who represents tribal interests and is a member of a federally recognized Indian tribe located at least partially in Utah and the Colorado River system was passed. The bill directs the Authority to engage in government-to-government relationships for all federally recognized tribes at least partially located in Utah and the Colorado River System.

O. Washington

1. Judicial

In 1982, the U.S. District Court for the Eastern District of Washington held that the Spokane Indian Tribe’s water right was senior to most other basin water users but did not adjudicate the water rights of certain de minimis users, including certain groundwater withdrawals that are exempt from permit requirements under state law.

Years later, evidence showed that the Spokane Indian Tribe’s water right was no longer being met and the suspected cause was de minimis water uses, including permit-exempt groundwater withdrawals. The Court in Spokane Indian Tribe v. Sulgrove explained that the rights to use water from permit-exempt withdrawals were subject to senior water rights, and the permit exempt water users could have been sued at any time by senior water holders, such as the Spokane Indian Tribe.

In Fode v. Department of Ecology, Division III of the Washington Court of Appeals addressed the Department’s exercise of its enforcement authority to prevent water users from using water without adequate water rights. The Department had issued an order to cease-and-desist from irrigating property without adequate water rights, after finding that a farmer had continued to irrigate property despite being told that he lacked water rights to do so. The Department issued notices of penalties totaling $618,000 (later reduced to $260,000) based on the total number of acres irrigated and the number of days of the violation, and Fode appealed. In proceedings below, the parties litigated timeliness of the appeal, the cease-and-desist order and the penalty amount, and requirements of the water rights enforcement statute.

In his appeal of the penalties, Fode argued that “the penalties were invalid because [the Department] failed to provide statutorily required written technical assistance” before issuing the cease-and-desist order and imposing the penalties. The parties filed cross petitions for review by the trial court, which determined that the appeal was timely, stayed the penalty appeal, and remanded the appeal of the cease-and-desist order. On appeal, Division III determined that Mr. Fode’s cease and desist order appeal was timely, but concluded that remand of the cease-and-desist order appeal was not the proper remedy because Mr. Fode was not substantially prejudiced by the dismissal of Fode’s appeal of the cease-and-desist orders. The Court explained that the compliance statute requires the Department to provide written technical assistance prior to issuing a cease-and-desist order or penalties, but does not require the Department to issue a cease-and-desist order before imposing penalties.

2. Legislative

In 2018, Washington adopted the “Streamflow Restoration Act” that addressed some implications of two state supreme court decisions and “created the Joint Legislative Task Force on Water Resource Mitigation (Task Force) . . . to review the treatment of surface water and groundwater appropriations as they relate to instream flows and fish habitat, and to recommend a mitigation sequencing process and scoring system to address such appropriations.”

The general topics in the recommendations included: conservation standards, source switches, standard for the overriding consideration of the public interest, modeling of water right impacts, the definition of impairment, mitigation sequencing, and the net ecological benefit requirement.

The report also makes recommendations, per the directive under the Act. The Task Force members adopted the general topics to be included in the recommendations section of the report but, did not take action on specific recommendations.

P. Wyoming

1. Legislative

In House Bill 2, the Wyoming Legislature revised Wyoming Statute sections 15-1-415, 18-5-306, and 18-5-316, amending requirements related to the subdivision of land and water rights. Specifically, subsection (e) was created within section 15-1-415 to require that, prior to the approval of a plat or map, the owner of water rights appurtenant to lands to be subdivided submit the intended disposition of the water rights to the appropriate governing body. The owner is required to do this by obtaining written documentation from the state engineer or the state board of control that the owner has voluntarily abandoned the water rights, submitted necessary documentation to change the use or place of use, sought and obtained approval for a plan to distribute the water to the lots within the subdivision, or obtained authorization to detach the water rights appurtenant to the land. Further, if the subdivision is located within lands served by a water conveyance system, such as a ditch or irrigation works, the subdivider must submit the plan to the private or public entity that controls the system. The requirements for subdivision permits and large acreage subdivision permits were also revised to largely mirror the requirements set forth above.

House Bill 4 created Wyoming Statue section 41-3-116 which specifies in whose name permits for watering livestock on federal land may be issued. It requires the permit be appurtenant to the allotment or land on which the livestock is being watered, and it sets forth limitations for changing or amending a permit. This section further sets forth requirements for transferring certain permits to another individual or a grazing association. Finally, this section provides that appropriation for the purpose of livestock watering is not subject to partial or full abandonment in certain circumstances.

The 2022 Wyoming Legislature authorized certain reconnaissance (Level I) and feasibility (Level II) studies for water development projects in House Bill 73. This act appropriates money for both new development and rehabilitation projects. It further sets forth reporting requirements and details the use of unexpended or unobligated funds and sets forth amendments to prior studies. Its companion bill, Senate Finance 80, authorized and provided funding for water development projects including both construction and rehabilitation projects. It identifies certain projects, appropriates funding, and specifies the conditions for funding. It also sets forth amendments to prior studies.

In Senate Finance 82, the Wyoming Legislature appropriated $76,810,000 from the legislative stabilization reserve to water development accounts I and II. This act appropriates these funds for the Goshen irrigation district tunnels 1 and 2 rehabilitation project, the LaPrele dam rehabilitation water development project, and to purchase water storage capacity in Fontenelle reservoir.

House Bill 136 amended Wyoming Statute section 41-3-932 to clarify that the applicant or petitioner bears the burden of proof in underground water contested case hearings.

2. Administrative

On April 22, 2022, the Wyoming State Engineer’s Office announced that Wyoming, Colorado, New Mexico, and Utah approved the 2022 Drought Response Operations Plan (2022 Plan). On April 29, 2022, the Department of the Interior (DOI) concurred with the Bureau of Reclamation’s recommendation that the Department of the Interior approve the 2022 Plan. The 2022 Plan includes releases of approximately 500,000 acre feet from Flaming Gorge Reservoir along with possible releases from Blue Mesa Reservoir in Colorado and Navajo Reservoir in New Mexico and possible operational adjustments at Lake Powell.

This chapter summarizes significant federal developments and significant state judicial legislative, and administrative developments in water resources in 2022, but is not comprehensive. Editors: Christen T. Maccone, Elisabeth Haub School of Law at Pace, White Plains, New York; Daniel Guarracino, Elisabeth Haub School of Law at Pace, White Plains, New York; and Sarah Angell, Texas A&M University School of Law, Fort Worth, Texas. Co-Editors: Elizabeth P. Ewens, Stoel Rives LLP, Sacramento California; Elizabeth Newlin Taylor, Taylor & McCaleb, P.A., Corrales, New Mexico; Justin Townsend,AllisonMackenzie,Ltd,CarsonCity,Nevada;andTheodoreWhite-Meridian, Federal Deposit Insurance Corporation, Washington, D.C. The editors were ably assisted by the correspondents listed below who authored the states’ reports. The correspondents are: for Alaska, George R. Lyle, Rikki Burns-Riley, and Traci N. Bunkers, Guess &Rudd P.C., Anchorage, Alaska; for Arizona; Michele L. Van Quathem, Law Offices ofMichele Van Quathem, P.L.L.C., Phoenix, Arizona; for California, Elizabeth P. Ewens, Stoel Rives LLP, Sacramento California; for Colorado, Dulcinea Z. Hanuschak, Brownstein Hyatt Farber Schreck LLP, Denver, Colorado; for Idaho, Garrick L. Baxter and Lacey B. Rammell-O’Brien, Deputy Attorneys General, Idaho Department of Water Resources, Boise, Idaho; for Kansas, Stephanie A. Kramer, Esq., Kansas Department of Agriculture in Manhattan, Kansas; for the Eastern States of Florida and Maryland, Logan O’Connell, J.D. Candidate 2024, Elisabeth Haub School of Law at PaceUniversity, White Plains, New York, assisted by Todd D. Ommen, Professor of Law, Managing Attorney, Pace Environmental Litigation Clinic, Inc., Elisabeth Haub School of Law, White Plains, New York; for Montana, Judge Stephen R. Brown, Montana Water Court, Bozeman, Montana; for Nebraska, Hannes D. Zetzsche, Baird Holm LLP, Omaha, Nebraska; for Nevada, Karen Peterson, Esq., Justin Townsend, Esq., and Alida Mooney, Esq. of Allison MacKenzie, Ltd. in Carson City, Nevada; for New Mexico, Elizabeth Newlin Taylor, Taylor & McCaleb, PA, Corrales, New Mexico; for North Dakota, Jennifer L. Verleger, Esq., Assistant Attorney General for the State of North Dakota in Bismarck, North Dakota; forOklahoma, Jonathan Allen, General Counsel for theOklahomaDept.ofMines,OklahomaCity,Oklahoma;forOregon,LauraSchroeder, Sarah Liljefelt, and Vitas Babusis, Schroeder Law Offices, P.C., Portland, Oregon; for Texas, Drew Miller, Esq., Kemp Smith, LLP, Austin, Texas;for Utah, Jonathan R. Schutz, Mabey Wright & James, Salt Lake City, Utah; for Washington, Tadas A. Kisielius, Adam W. Gravley, and Jenna R. Mandell-Rice, Van Ness Feldman LLP,Seattle, Washington; for Wyoming, Kasey Schleuter and Andi N. Grave, Holland &Hart, LLP, Cheyenne, Wyoming.