Water Resources Committee Report

I. Federal Developments

A. Alaska

1. Judicial

In 2021 and 2022, the Federal Subsistence Board (FSB) and agency field commissioner exercised their authority under the Alaska National Interest Lands Conservation Act (ANILCA) and issued emergency special actions to close the 180-mile-long section of the Kuskokwim River within the Yukon Delta National Wildlife Refuge to non-subsistence uses. They also allowed “limited subsistence uses by local rural residents under narrowly prescribed terms and means of harvest.” Also in 2021 and 2022, the state of Alaska issued their own emergency orders that permitted fishing on the same stretch of the river that had been closed by FSB for non-federally recognized subsistence harvest. Alaska explained that it did “not believe this opportunity under state subsistence fishing regulations will negatively impact the ability of federally qualified subsistence users from meeting their needs during these fishing periods.”

The United States sued the state of Alaska in United States of America and Kuskokwim River Inter-Tribal Fish Commission, et al., v. State of Alaska, et al., claiming that under ANILCA the federal government “provides that rural subsistence users are given priority to hunt and fish on federal land and waters within Alaska” which preempts any state action that conflicts with a federal law or emergency order.

The United States requested a temporary restraining order to stop Alaska from issuing emergency orders that open harvest on the Kuskokwim River or from taking similar action in contravention of federal orders under ANILCA as these actions effectuate the federal rural subsistence priority. The District Court denied the temporary restraining order. However, the District Court did grant the United States a later request for a preliminary injunction on June 23, 2022, stating that the issuance will allow the United States to “pursue federal priorities, which are inherently in the public interest, until a final decision on the merits is reached in this case.”

Alaska has filed a Motion for Summary Judgment (Motion) with the District Court, claiming that the federal government has no regulatory authority over the Kuskokwim, as the Kuskokwim does not fit within the definition of what ANILCA covers. Alaska believes that the United States does not have “title” over the Kuskokwim “lands,” as “Alaska gained ownership of these lands when it joined the Union in 1959.” Alaska then contends that water cannot be owned; the “only possible ‘interests’ the United States could have would be reserved water rights.” Alaska states that the Supreme Court’s decision in Sturgeon v. Frost, does not allow the United States title “over reserved water rights, and even if it could, that would give it the power only to take a specific ‘amount of water,’ which has no application here.” As of this writing, the Motion has not been ruled on.

B. Arizona

1. Judicial

On June 22, 2023, in a five-to-four split decision, the U.S. Supreme Court held that neither the 1849 or 1868 treaties between the United States and the Navajo Tribe of Indians, nor fraught history, required the United States to take affirmative acts to secure water for the Navajo Nation.

The 1935 Federal Globe Equity Decree No. 59 decreed rights to use the mainstream surface water of the Gila River in Arizona and the decree has been administered by the United States District Court for the District of Arizona ever since. Two cases with significant implications for Gila River mainstream water users were issued by the court in 2023. In Gila River Indian Community v. Schoebroek, the Gila River Indian Community challenged the Defendant’s use of four irrigation wells as withdrawing Gila River mainstream subflow without a decreed water right. Defendant asserted that the right to use water from wells should be determined in Arizona’s long-running comprehensive state water right adjudication case for the Gila River system, a process in which the subflow zone in the relevant area had still not been determined. The court rejected the jurisdiction challenge and refused to delay a determination of the claims. The court determined it has “exclusive” jurisdiction over all Gila River mainstream water uses and ruled that no withdrawal of water from a well containing subflow of the river can occur, even if the quantity is de minimus.

In another case concerning Globe Equity Decree No. 59 rights, Gila River Indian Community v. Bowman, the court invalidated certain decreed irrigation rights to Gila River mainstream water, finding the rights were lost because of nonuse. The affected parties’ parcels had been flooded many years ago, rendering them unsuitable for irrigation, but for various reasons the parcels had not been irrigated since. The court reasoned that the explanations given by the parties did not fall within the “catchall” exception for nonuse in Arizona Revised Statutes section 45-189.E.8 (that “Any other reason that a court of competent jurisdiction deems would warrant nonuse.”)

2. Administrative

On August 15, 2023, the Bureau of Reclamation announced the ongoing shortage condition for the Lower Colorado River Basin would be at Tier 1 in 2024 per the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead and a series of interstate and intrastate drought agreements addressing shortages through 2026. On April 11, 2023, the Secretary of Interior released a Draft Supplemental Environmental Impact Statement that identified proposed alternatives to revise the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead to address changing conditions through 2026. After the draft was released, the Lower Basin States proposed voluntary cuts by consensus. As a result of this agreement and improved hydrology in 2022, the Secretary of Interior released a Revised Draft Supplemental Environmental Impact Statement on October 19, 2023 that included the consensus proposal, which was accepted as a solution on October 26, 2023. Work on a longer term agreement among the affected states continues.

C. Kansas

1. Judicial

In Audubon of Kansas, Inc. v. United States Dep’t of Interior, the 10th Circuit Court of Appeals affirmed the dismissal of claims against the United States Fish and Wildlife Service (Service) on grounds that all claims asserted against the Service were either moot or nonjusticiable. Audubon of Kansas (Audubon) had originally filed claims against the Service, the Kansas Department of Agriculture, the Kansas Department of Agriculture, Division of Water Resources (KDA-DWR), and various state government officials. The District Court for the District of Kansas dismissed claims against the state government defendants on Eleventh Amendment immunity grounds. Audubon did not appeal the dismissal of the state government defendants, but, on appeal, sought reversal of the dismissal of claims against the Service. Audubon sued to compel the Service, under the National Wildlife Refuge System Improvement Act (NWRSIA), to protect the Service’s senior water right in the Quivira National Wildlife Refuge (Refuge). The Service had known for decades that junior rights holders were impairing the Service’s senior rights, which threatened harm to endangered species in the Refuge, and Audubon asserted the Service was required to act to protect its senior rights. Audubon sought to compel the Service’s action and to set aside an agreement between the Service and a water district. The Court of Appeals found that all material terms of the agreement had expired and, therefore, Audubon’s request to set the agreement aside was moot. The Court of Appeals also concluded that the NWRSIA did not contain any discrete, legally required action that Audubon could assert the Service had failed to perform, and, therefore, Audubon’s claims, under the Administrative Procedure Act, were nonjusticiable.

D. Nevada

1. Judicial

On March 31, 2023, in ongoing litigation in Great Basin Resource Watch v. United States Department of the Interior, parties opposed to the Bureau of Land Management’s (BLM) approval of the Mt. Hope Project moved for summary judgment on their claims that the BLM failed to protect lands withdrawn under Public Water Reserve 107 (PWR 107), violated the National Environmental Policy Act (NEPA), and violated the Federal Land Policy Management Act (FLPMA). The United States District Court for the District of Nevada ruled further analysis from the BLM was necessary before reaching a decision on whether the Pickett Act exception to the withdrawal of land under PWR applied. Since the BLM had not yet determined whether metalliferous minerals existed on the land proposed for the Mt. Hope Project, the Court could not determine whether this exception applied or whether the BLM had violated the FLPMA as it relates to the PWR 107 land. The Court then ruled the BLM had not violated NEPA as it had adequately reviewed baseline values for pollutants, satisfied the requirements for analysis regarding cumulative impacts of oil and gas, and prepared a satisfactory mitigation plan. While the Court did not decide whether the BLM violated FLPMA as it relates to PWR 107 lands, the Court ruled the FLPMA claim depended on the NEPA claim and, therefore, also failed.

E. New Mexico

1. Judicial

The special master in the Texas v. New Mexico case, an original action in the Supreme Court, recommended that the High Court approve a proposed settlement, which would settle litigation begun in 2013. In late 2022, New Mexico, Texas and Colorado proposed a settlement establishing how Rio Grande water would be split below Elephant Butte Reservoir. New Mexico would receive fifty-seven percent of the Rio Grande water while Texas would receive forty-three percent (these percentages exclude Mexico’s share). Among other terms, the settlement would establish a new index that factors groundwater pumping into those formulas, which are based on the drought from 1951-1978. The United States, which opposed the settlement because it did not approve it, has filed exceptions to the special master’s report. Other parties also are expected to file exceptions.

F. North Dakota

1. Judicial

In July 2023, the Eighth Circuit Court of Appeals, in Missouri ex rel. Bailey v. United States Dep’t of Interior, Bureau of Reclamation, affirmed a 2021 decision, upholding the Bureau of Reclamation’s decisions and processes to allow a political subdivision of the State of North Dakota to divert a total of 165 cubic feet per second (cfs) from the Missouri River under what is known as the Central Dakota Project. The Court of Appeals held the Bureau’s completion of an Environmental Assessment (EA) and issuance of a Finding of No Significant Impact was supported by a rational basis, rejecting the State of Missouri’s claims that the Bureau had failed to analyze adverse impacts, adequately analyze mitigation measures, adequately consider reasonable alternatives, and that the Central Dakota Project was a “major federal action” requiring an Environmental Impact Statement rather than an EA. The Court of Appeals reiterated that NEPA “is not about preventing ‘unwise’ agency action – just ‘uninformed’ action.” The Court of Appeals also concluded the federal “connected-actions doctrine” did not require the Bureau to consider the Central Dakota Project in connection with North Dakota’s own Red River Valley Water Supply Project because the purpose of said doctrine is to prevent the federal government from segmenting its own federal actions into separate projects, but does not require the aggregation of federal and state actions.

In Mandan, Hidatsa & Arikara Nation v. United States Dep’t of the Interior, the District of Columbia Circuit Court of Appeals reversed and remanded a decision of the United States District Court for the District of Columbia to deny the State of North Dakota’s intervention in a case filed by a North Dakota tribe to set aside certain findings and decisions of the United States Department of the Interior regarding ownership of a portion of the bed of the Missouri River flowing through the tribe’s reservation. The Court of Appeals noted there is no doubt North Dakota has an interest relating to the property that is the subject of the tribe’s action and that the State’s intervention was warranted. The Court of Appeals also strongly suggested the Department of Interior needed to file a quiet title action regarding ownership of the subject property. Shortly after remand, the Department filed a motion in the District Court for leave to amend its answer and file a cross-claim against North Dakota to quiet title to the riverbed. As of this writing, the District Court was still considering whether to grant the Department’s motion as well as whether a quiet title claim properly belongs in the District Court for the District of North Dakota.

G. Eastern States

1. Michigan

In Michigan Department of the Environment v. Mueller, the Western District Court granted summary judgment in favor or the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the Michigan Department of Natural Resources the Michigan (collectively, Plaintiffs) against Boyce Hydro LLC and Boyce Hydro Power LLC (Defendants) for the Edenville dam collapse. The court found that Defendants violated several sections of Michigan’s Natural Resource and Environmental Protection Act (NREPA) through their ownership and control of Edenville dam.

Defendants owned and controlled Edenville dam from 2006 until its failure in 2020. The court found that the Dam Modification Upgrading Spillway Capacity Design Report, which was created but not implemented, showed Defendants knew of the “alarming circumstance” of the dam’s vulnerability, but failed to notify EGLE, violating NREPA’s Part 315. The court also found that Defendants failed to make dam renovations, despite their knowledge of the dam’s weakness, and Michigan’s natural resources suffered, violating Part 17 of NREPA that prohibits impairment of Michigan’s air, water, and other natural resources and the public trust.

Due to the Edenville dam’s failure, Wixom Lake’s water and large amounts of sediment flowed into floodplains, stream beds, and river channels connected to the Tittabawassee River. The court found this violated Part 301 of NREPA, which prohibits diminishment of a lake without a permit. The failure also violated Chapter 324, Act 451 of 1994, Part 31, which requires a permit for sediment to enter the floodplain, stream bed, and channels of a stream.

II. State Developments

A. Arizona

1. Legislative

To assist property owners who lack a reliable water supply within the unincorporated area of Rio Verde, Arizona, the Arizona Legislature passed Senate Bill 1432 to authorize a limited water standpipe district with authority to arrange billing and enter into agreements for standpipe service for up to 750 residences. The law also requires the director of Arizona Department of Water Resources’ (DWR) to study and report to the Governor and Legislature by December 31, 2023, regarding certain potential changes to the assured water supply program as to residences not currently required to comply.

House Bill 2590 was passed in part to provide additional enforcement and increased penalties for “wildcat subdivisions” (land splits that are intended to avoid Arizona’s 100-year assured and adequate water supply requirements applicable to subdivisions).

2. Judicial

Arizona’s long-running stream adjudications continue in the Superior Courts with a special master presiding over contested cases. In Defenders of Wildlife v. Arizona Navigable Stream Adjudication Commission, the Arizona Court of Appeals considered the final navigability determinations of the Arizona Navigable Stream Adjudication Commission (ANSAC) for riverbed land title purposes as to the Verde, Salt, and Gila Rivers within Arizona. With the exception of the Colorado River, ANSAC concluded all Arizona rivers were non-navigable at statehood (in their natural condition), but the court reversed as to one segment, segment 8 of the Gila River near the confluence of the Gila River and Colorado River, finding it was navigable at statehood.

3. Administrative

In January 2023, the DWR released an updated Hassayampa Sub-Basin groundwater model, and on June 1, 2023, it released an updated regional groundwater model that included the Hassayampa Sub-Basin and certain other sub-basins within the Phoenix Active Management Area that include much of the Phoenix metropolitan area. The groundwater hydrology models are not regulatory documents, but applicants for determinations of assured water supply availability to support future growth are required to use the DWR’s base groundwater models as a starting point for hydrologic studies. The updated model results indicate local groundwater in the affected areas is largely reserved for the use of existing assured water supply determinations. New assured water supply determinations will likely need to be proven with non-groundwater sources that may be more expensive or unavailable in some locations.

B. Alaska

1. Judicial

Williams Alaska Petroleum, Inc. and The Williams Companies, Inc. (collectively Williams) owned and operated a refinery in North Pole on leased State-owned land in 1977. In 1985, Williams started to use sulfolane in their refining process and allowed the sulfolane to migrate into the groundwater which was not discovered until 1996. In 2019, the sulfolane had traveled laterally in the groundwater creating a plume approximately two miles wide, three and a half miles long, and over three hundred feet deep extending into the city of North Pole’s groundwater. In 2019, the State’s case against Williams proceeded to bench trial in the Superior Court. The Superior Court concluded that sulfolane is a hazardous substance and that Williams is strictly, jointly, and severally liable for the sulfolane release. Williams appealed to the Alaska Supreme Court in Williams Alaska Petroleum, Inc. and The Williams Companies, Inc. v. State of Alaska; Flint Hills Resources Alaska LLC.

One of Williams’ arguments on appeal was that there is no right to uncontaminated groundwater under state law and even if the right exists it is held by the public; thus, the State is not harmed and cannot recover damages. The court stated that “groundwater is a public trust resource over which the State serves as trustee.” “Even if there were no independent right of access to clean groundwater, the State could pursue damages for harm to this natural resource based on Williams's violations of the Act.” The public could no longer safely use the ground water because of the contamination, thus the State could sue for damages.

Since 2012, Donlin Gold LLC has sought administrative approval from the Alaska Department of Natural Resources (DNR) for an open pit gold mine in the Yukon-Kuskokwim region in southwestern Alaska in Orutsararmiut Native Council and Native Village of Eek v. John Boyle, Alaska Department of Natural Resources and Donlin Gold LLC. In 2021, DNR approved 12 water use permits for water appropriation for the proposed mine. Orutsararmiut Native Council and the Native Village of Eek (“The Tribes”) filed an agency appeal. DNR rejected the appeal on April 25, 2022. The Tribes filed an appeal with the Superior Court and argued two main issues:

1. “DNR's decision granting the 12 challenged water permits violated Article VIII of the Alaska Constitution because the agency failed to consider the cumulative impacts of the whole Donlin Gold Mine project;” and
2. “DNR acted arbitrarily or violated AS 46.15.080 [Alaska Water Act] because the agency failed to analysis.”

The Superior Court held that the “DNR was not required to conduct a cumulative impacts analysis that took into account the entirety of the mine project.” The Supreme Court’s decision in Sullivan v. Resisting Environmental Destruction on Indigenous Lands (REDOIL), held that agencies must consider the cumulative effects of a project before disposing of an interest in state resources under Article VIII of the Alaska Constitution. This Court concluded that the ruling in REDOIL “does not mandate that DNR consider the cumulative impacts of the mine project in this case.” The Court reasoned that “the cumulative impacts analysis in REDOIL was a creature of the particular statutory scheme that regulated oil and gas leases” and does not apply in this case. The Court held that they were “unpersuaded that the language of Article VIII indicates that a cumulative impacts analysis is appropriate in cases that do not involve phased projects or projects governed by a comparable statutory framework.”

They also held that DNR did not violate the Alaska Water Act by failing to consider the pit lake and its effects before granting the permits, as the “effects of the pit lake are too attenuated for DNR to be required to consider them as part of their public interest analysis under the Alaska Water Act.” The Court concludes that the DNR’s issuance of the permits was not arbitrary as well. The Court states that the pit lake and its effects are not “direct effects” of the issued permits, but rather they are anticipated effects. Also the pit lake and its effects are “too remote from the appropriations here to broadly considered ‘important factors’ which the agency must consider before their approval.” The Court holds that the pit lake and its effects are future water appropriations that may be necessary, and “DNR lacks the requisite information to truly assess whether or not it will issue permits” in the future.

The Tribes appealed the Superior Court decision to the Alaska Supreme Court on October 2, 2023.

2. Administrative

The Alaska Department of Environmental Conservation (ADEC) amended 18 AAC 72 Wastewater Treatment and Disposal Regulations effective October 2, 2023, “which updated permit-by-rule or authorization-by-rule processes which allows more wastewater systems to be installed without prior approval from the department.”

C. California

1. Judicial

In Yurok Tribe v. U.S. Bureau of Reclamation, the U.S. District Court for the Northern District of California held the federal Endangered Species Act (ESA) preempts an Oregon Water Resources Department’s (OWRD) order that prohibited the U.S. Bureau of Reclamation (Bureau) from releasing water from Upper Klamath Lake except for irrigation purposes. The Court explained that the OWRD order presented an obstacle to the Bureau’s compliance with the ESA and therefore was preempted under the supremacy clause and unenforceable. Following the District Court’s decision, the Klamath Water Users Association, which in part represents Northern California interests, and Klamath Irrigation District filed notices of appeal, which are now consolidated in the Ninth Circuit. The appeals raise several issues, including whether the ESA applies to the Bureau’s order, whether there is obstacle preemption, and who owns the water rights in the Upper Ukiah Lake and has the right to use, exclude, and enforce such water rights.

2. Legislative

On September 1, 2023, Governor Newsom signed Senate Bill No. 756 into law. The legislation provides the State Board more flexibility in serving notices and legal documents required under current law and offers Regional Water Quality Control Boards the authority to participate in inspections of unlicensed cannabis cultivation sites. The newly authorized inspections allow the State Board to inspect “property or facilities of any person or entity” for the purpose of determining the person or facility’s lawful compliance with state laws, regulations, orders, permits, and other determinations governing the lawful diversion of water and to protect water quality. The State Board is also now authorized to participate in inspections performed pursuant to a warrant issued under the California Penal Code for the purposes of investigating potential violations of the Water Code by unlicensed cannabis cultivation producers.

On October 8, 2023, Governor Newsom signed Senate Bill 389 (SB 389) into law. SB 389 amends California Water Code section 1051 to authorize the State Board to investigate and ascertain the validity of senior water rights, referred to as pre-1914 and riparian rights. Appropriative surface water rights initiated prior to California’s Water Commission Act of 1913, which created the state’s permitting and licensing scheme for surface water rights, are referred to as “pre-1914” water rights. Those rights initiated after 1914, “post-1914” water rights, are subject to the permitting and licensing jurisdiction of the State Board. Although the State Board may regulate the reasonable use of surface water, it does not maintain permitting and licensing jurisdiction over pre-1914 or riparian rights because such rights pre-date the Water Commission Act.

As adopted, SB 389 allows the State Board to “investigate and ascertain whether or not water heretofore filed upon or any claimed riparian or appropriative right is valid under the laws of this state.” Proponents of the legislation claim that by authorizing the State Board to investigate and collect diversion and water use information, it will be better equipped to scrutinize water usage pursuant to its reasonable use jurisdiction for senior pre-1914 and riparian right holders.

On October 13, 2023, Governor Newsom signed into law Assembly Bill 1572 (AB 1572), which declares that use of potable water to irrigate nonfunctional turf to be “wasteful” and “incompatible with state policy relating to climate change, water conservation, and reduced reliance on the Sacramento-San Joaquin Delta ecosystem.” AB 1572 prohibits the use of potable water for the irrigation of nonfunctional turf (any turf that is not functional turf, such as turf located within street rights-of-way and parking lots) located on commercial, industrial, and institutional properties, other than a cemetery, and on properties of homeowners’ associations, common interest developments, and community service organizations or similar entities. Public water systems, cities, or counties are authorized pursuant to AB 1572 to enforce these provisions. Likewise, AB 1572 authorizes the State Water Board to ensure compliance through certification and require owners of properties subject to the prohibitions to certify their compliance.

3. Administrative

On January 20, 2023, the U.S. Department of the Interior Bureau of Reclamation released its “Initial 2023 Restoration Allocation & Default Flow Schedule” (Report), which sets the default flow schedule for releases from the Friant Dam into the San Joaquin River. The Report, which set the 2023 default flow schedule releases at a total of 556,542 acre-feet (unless hydrological or operating changes warrant modifying the releases), is part of the Bureau’s ongoing obligations under a Settlement Agreement with the Natural Resources Defense Council. Per the Settlement Agreement, flows must be released into the San Joaquin River to reestablish salmon runs. Increased rains in California during 2023 resulted in additional water flowing into the Friant Dam and the San Joaquin River, which added flexibility in meeting 2023 flow releases. However, it is still uncertain whether future flow releases will support salmon spawning in dryer years.

On February 13, 2023, California Governor Gavin Newsom issued Executive Order N-3-23 (Order), which permits the State Water Resources Control Board (State Board) to waive minimum outflow requirements for the Sacramento-San Joaquin Delta (the Delta) to facilitate greater water storage. The Order is meant to assist with the state’s long-term drought resilience preparations by capitalizing on the significant precipitation experienced throughout the state in January 2023. Specifically, the Order is designed to expand the state’s ability during wet periods to capture storm runoff and to recharge aquifers by allowing the State Board to modify requirements for reservoir releases or diversion limitations in the federal Central Valley Project or State Water Project (collectively Projects) facilities. Practically, the Order functions by suspending California Water Code section 13247 and applicable sections of the California Environmental Quality Act, which in turn permits the State Board to suspend environmental requirements that mandate minimum outflow requirements from the Delta into the San Francisco Bay.

On February 21, 2023, in response to the Order, the State Board’s Executive Director issued an order approving a Temporary Urgency Change Petition (Petition) filed by the Bureau and the California Department of Water Resources (DWR) to temporarily modify water right conditions for the Projects. The water right conditions were imposed pursuant to the State Board’s water right Decision 1641 (D-1641). Essentially, D-1641 makes the Projects responsible for meeting flow and water quality objectives pursuant to the Water Quality Control Plan for the San Francisco Bay-Sacramento/San Joaquin Delta watershed. In their Petition, the Bureau and DWR requested a waiver of the Delta outflow requirements during February and March 2023 for Port Chicago located in the Delta. The order was revoked by a modification order issued by the State Board on March 9, 2023, due to improved hydrological conditions and public pushback received as a result of allowing the waiver.

In August 2023, the State Board released its proposed Making Conservation a California Way of Life regulation. The proposed regulation would add sections 965 through 978 to Title 23 of the California Code of Regulations, relating to Urban Water Use Efficiency Standards, Objectives, and Performance Measures and would require urban retail water suppliers to calculate and comply with urban water use objectives by January 1, 2025. The State Board has received public comment and held a public hearing on the proposed regulation. The State Board expects to consider adoption of the regulation in Summer 2024. If adopted, the regulation is anticipated to become effective October 1, 2024.

D. Colorado

1. Judicial

In Front Range Feedlots, LLC v. Rein, Front Range Feedlots, LLC (Front Range), a cattle feedlot operator, challenged the Colorado State Engineer’s authority to issue and enforce an Order to Comply with Front Range’s substitute water supply plan (SWSP). The controversy arose when Front Range withdrew both the pending application to use the water rights at issue for its cattle feeding operations and the augmentation plan, which would allow Front Range to use the water rights out-of-priority by replacing the well depletions. Front Range withdrew the water court application because it had located new local water sources and no longer needed the wells for feedlot uses. The Colorado State Engineer and Division Engineer for Water Division 1 Engineers (collectively Engineers) opposed withdrawal of the application and sought an injunction to force compliance with the terms of the SWSP, which had authorized Front Range to use the wells for the feedlot operations while the water court application was pending. The SWSP included the requirement that Front Range replace 100% of depletions caused in Boxelder Creek, including lagged depletions. The water court for Water Division 1 (Water Court) granted the Engineers’ request and issued an Order Granting Mandatory Injunction requiring Front Range to comply with the SWSP and affirmed the State Engineer’s authority to issue the Order to Comply. Front Range alleged that the Water Court abused its discretion and appealed.

The Colorado Supreme Court upheld the State Engineer’s authority under Colo. Rev. Stat. §§ 37-92-501 and 502, and Colo. Rev. Stat. § 97-92-308(4) to issue an Order to Comply with a substitute water supply plan. The Supreme Court held that: (1) under the plain language of Colo. Rev. Stat. §§ 37-92-501 and 502, and Colo. Rev. Stat. § 97-92-308(4), the State Engineer has the authority to issue an Order to Comply; (2) the State Engineer has the authority to enforce terms and conditions of a SWSP after the expiration of an SWSP and withdrawal of the associated water court application for an augmentation plan; (3) it is proper for the State Engineer to attach terms and conditions of an SWSP to Front Range, rather than to the water rights at issue; (4) the State Engineer has jurisdiction to require replacement of depletions from pre-application pumping; and (5) the Water Court properly exercised its discretion in ordering Front Range to acquire additional replacement water sources. The Supreme Court also affirmed the Water Court’s decision that the Engineers were entitled to recover their reasonable attorney fees and costs, and found that the Engineers were also entitled to recover the fees and costs they incurred in this appeal.

In State v. Hill, the Colorado Supreme Court held that an individual lacked standing to pursue a declaratory judgment that a river segment was navigable at statehood and belongs to the State. Hill asserted an injury to his alleged right to access the riverbed of the Arkansas River where his favorite fishing hole was located. Hill claimed that he had legal access to the riverbed as a member of the public based on his assertion that the State of Colorado holds ownership. Despite extensive discussion of the public trust doctrine, the equal footing doctrine, and arguments around who is best positioned to determine policy regarding public access to rivers that cross through private property, the Court granted certiorari in this case only on the procedural issue of standing. The Court determined that the question of whether Hill had a legally protected interest to which Hill could claim injury relied entirely on the substantive and unresolved “antecedent question of whether the State owns the property at issue.” Therefore, Hill did not have standing to pursue a declaratory judgment that the river was navigable at the time of statehood and thus, property of the State.

2. Legislative

House Bill 23-1005 adds water efficiency improvements and resiliency improvements, which include stormwater control measures, to the definition of “new energy improvements” for which the Colorado new energy improvement district may provide financing to eligible real property owners through the Commercial Property Assessed Clean Energy Program (C-PACE). Additionally, this bill modifies new energy improvement district notice requirements and removes the district’s hearing requirement.

House Bill 23-1220 directs the Colorado Water Center at Colorado State University to study economic consequences associated with compliance with certain 2016 resolutions resolving disputes among the three states who are parties to the 1942 Republican River Compact, Colorado, Nebraska, and Kansas. Specifically, the Colorado Water Center will study the economic consequences that will result if Colorado does not comply with the resolution under which Colorado agreed to reduce the number of acres irrigated in the South Fork Focus Zone by 25,000 acres by December 31, 2029. Additionally, the State Engineer is then required to curtail all large-capacity groundwater withdrawals within the Republican River Basin.

House Bill 23-1125 modernizes the process for changing groundwater well owner contact information by clarifying who must file information and the format in which the information may be filed.

House Bill 23-1274 allocates annual funding for species conservation projects within the Colorado Water Conservation Board by appropriating $5 million from Species Conservation Trust Fund.

Senate Bill 23-177 appropriates funding to several CWCB water projects from the CWCB construction fund to the CWCB or the Division of Water Resources. Notably, this bill appropriates $8,000,000 to purchase up to 924 acre-feet of orphan shares from the CWCB as part of the Chatfield Reservoir reallocation project. Additional appropriations include funding to continue and support the Platte River Recovery Implementation Program, the Upper Colorado River Endangered Fish Recovery Program, the San Juan River Basin Recovery Implementation Program, and the Frying-Pan Arkansas project. Finally, the bill allocates up to $2,000,000 to the CWCB litigation fund to address legal issues associated with compact compliance and other related litigation activities.

Senate Bill 23-237 transfers $12.6 million from severance tax operational fund to the Water Plan Implementation Cash Fund created in Colo. Rev. Stat. § 37-60-123.3. This fund also includes sports-betting revenues collected pursuant to Colo. Rev. Stat. § 44-30-1509.

Senate Bill 23-270 promotes the creation of stream restoration projects (such as for wildfire mitigation, bank stabilization, water quality protection, ecosystem restoration, infrastructure protection, or erosion management) and determines that certain such projects do not cause material injury to vested water rights. The owners of these stream restoration projects may not adversely affect the function of water infrastructure that owners of vested water rights use without permission from the vested water right owner.

To address unprecedented drought in the Colorado River Basin since 2000, Senate Bill 23-295 establishes the Colorado River Drought Task Force to make recommendations for legislative action to assist Colorado in addressing drought and the state’s interstate commitments. The Task Force includes the Executive Director of the Department of Natural Resources, the Commissioner of Agriculture, representatives from the Colorado River Water Conservation District, Ute Mountain Tribe and Southern Ute Indian Tribe, Southwestern Water Conservation District, Southeastern Colorado Water Conservancy District, and Northern Colorado Water Conservancy District, among others. Twelve meetings are authorized to start no later than July 31, 2023 and a final report is due to the Water Resources Agricultural Review Committee by December 15, 2023.

E. Eastern States

1. Florida

In an appeal from the Southern District of Florida District Court, the Fourth District Court of Appeal affirmed the trial court’s findings in Town of Indian River Shores v. City of Vero Beach. The Town of Indian River (the Town) claimed that its contract with the City of Vero Beach (the City) required the City to match its pressurized reclaimed water rates with the Indian River County’s (the County) non-pressurized reclaimed water rates. The trial court found that because non-pressurized reclaimed water is a different classification than pressurized reclaimed water, the City did not need to match the County’s rate. The Fourth District Court of Appeal affirmed this decision, finding no ambiguity or genuine issue of material fact within the contract. Further, even if there was a genuine issue of material fact, municipal bodies are delegated the authority to set water rates, as long as the city does not “supply water at less than cost.”

The Town failed to show that the “City’s enterprise would not lose money” if the City used the County’s reduced rate for non-pressured water. If the City did lose money, it would be forced to charge in-jurisdiction residents (residents) a higher rate than residents outside of its jurisdiction (non-residents). Charging residents a higher rate than non-residents is contrary to Florida Law section 180.191, which provides that a municipality cannot charge its residents a higher rate than non-residents. Thus, the court affirmed the trial court’s finding that pressurized reclaimed water rates do not need to match non-pressurized reclaimed water rates.

2. Indiana

In 2023, Indiana established a watershed development commission (WDC), to increase the “commerce, health, enjoyment, and prosperity” of Indiana’s people. The watershed development commission is a coalition of counties across Indiana and is supervised by Indiana’s natural resources commission (NRC). Executives of a county may join the WDC by ordinance, if at least 10% of the designated watershed is within the county’s boundaries. The WDC may plan, take, and promote action for purposes of reducing flood damage, drainage, stormwater management, recreation, water infrastructure purposes, and managing water quality, subject to control of the NRC. A WDC also is empowered to “prevent or mitigate flooding through generally accepted structural and nonstructural means,” including bank stabilization, increasing water storage capacity, erosion control, sediment reduction, logjam management, selective construction, maintenance and removal of berms, construction of levees, and bridge and structure removal and replacement.

3. New Jersey

In In re New Jersey Department of Environmental Protection Direct Oversight Determination, the New Jersey Superior Court Appellate Division upheld the constitutionality of a decision by the New Jersey Department of Environmental Protection (DEP). Solvay operated and owned a manufacturing plant (Plant) to create polyvinylidene fluoride (PVDF). The process aids used to create PVDF presented PFAS in the Delaware River and the nearby Paulsboro water system. In 2013, at DEP’s request, Solvay began a remediation program to address the Plant’s PFAS contamination. In March 2019, DEP released a Statewide PFAS Directive, faulting Solvay for its PFAS contamination. Further, in September 2020, DEP issued a Direct Oversight Determination stating that Solvay must “immediately comply with” DEP’s “compulsory and discretionary direct oversight” of the Plant’s remediation.

The court found that pursuant to the Spill Compensation and Control Act, whose purpose is to preserve water as a balanced resource, the DEP was within its authority to remove PFAS from the Delaware River.

F. Idaho

1. Judicial

As reported in the Year-In-Review 2021, the enacted legislation established an administrative process for declaring state-based de minimis stockwater rights forfeited. In United States v. Idaho, the United States argues the legislation establishing the administrative forfeiture process is unconstitutional. The matter is currently pending on cross motions for summary judgment with a hearing date set for January 23, 2024.

2. Legislative

Senate Bill S1033 added Idaho Code 42-204A, giving IDWR authority to condition new ground water irrigation permits to require the use of surface water rights first. The intent of the legislation is to conserve ground water resources and encourage the continued use of surface water for irrigation. The Surface Water First Act became effective July 1, 2023.

3. Administrative

On April 21, 2023, IDWR’s Director issued the Fifth Amended Final Order Regarding Methodology for Determining Material Injury to Reasonable In-Season Demand and Reasonable Carryover (Fifth Methodology Order), which updated the nine-step methodology for determining material injury to members of the Surface Water Coalition (SWC). Following a four-day hearing, on July 19, 2023, the Director issued the Sixth Methodology Order correcting data in the Fifth Methodology Order found to be in error. The most significant change in the new methodology order is the change from steady-state to transient modeling.

G. Kansas

1. Judicial

In Audubon of Kansas Inc. v. Lewis, the Kansas Supreme Court declined to exercise its original jurisdiction and dismissed a petition for writ of mandamus in which Audubon of Kansas requesting an order requiring the Chief Engineer of the Kansas Department of Agriculture, Division of Water Resources (KDA-DWR) to immediately administer all junior water rights that KDA-DWR has determined are impairing the senior water right held by the United States Fish and Wildlife Service (Service) for the benefit of the Quivira National Wildlife Refuge. Audubon subsequently filed a substantially similar petition in the Shawnee County District Court, but that lawsuit was dismissed by agreement of the parties without any ruling after the Service effectively withdrew its request to secure water for 2024 in favor of continuing to work toward a cooperative solution to the impairment.

2. Legislative

On April 24, 2023, Governor Laura Kelly approved House Bill No. 2279, which requires "groundwater management districts to submit annual reports to the [L]egislature” and “to submit conservation and stabilization plans to the [C]hief [E]ngineer,” identifying areas of priority concern within each district.

3. Administrative

On May 10, 2023, the Chief Engineer entered an Order designating the Four-County Local Enhanced Management Area (LEMA) in the Western Kansas Groundwater Management District No. 1 (GMD1) in Scott, Lane, Greeley, and Wallace Counties. The LEMA management plan will limit irrigation pumping of perfected, non-vested rights within the LEMA boundary to 472,000 acre-feet for the initial five-year term of the LEMA, which would accomplish a reduction from the 2011-2020 average use of those water rights in excess of 10 percent.

H. Montana

1. Judicial

The Montana Supreme Court did not report any citable decisions in 2023 arising out of Montana’s ongoing statewide water rights adjudication. However, a significant ruling in the long-running Montana v. Talen Montana, LLC, the Montana federal district court ruled on the extent to which the state of Montana may collect rent from hydroelectric power projects that utilize certain riverbeds. The riverbed litigation is based on the equal footing doctrine.

To reach its decision, the court first divided the disputed rivers into numerous “reaches” to comply with the Supreme Court’s segment by segment directive. The court then made navigability determinations for each of these reaches. Ultimately the court concluded all but one of the reaches failed the navigability for title test, meaning Montana does not own the riverbeds in these reaches, thereby precluding its ability to charge rent for their use. The federal district court’s ruling illustrates the fact-intensive and complex proof problems Montana faced in establishing navigability for title for some of Montana’s largest and most iconic rivers.

Also decided was Flathead Lakers v. Mont. Dep’t of Natural Res. & Conservation. Montana Artesian proposed to source the water to the bottling plant from a deep aquifer. A number of local residents and groups oppose the plant, and it has been mired in litigation for many years, including two prior cases before the Montana Supreme Court. The permit was reviewed under Montana’s Water Use Act which requires that water be both physically and legally available.

Department of Natural Resources and Conservation (DNRC) determined the permit application met both the physical availability and legal availability criteria. The Montana Supreme Court upheld the district court’s decision to vacate the DNRC’s decision to approve the permits because water was not legally available.

The Court concluded DNRC failed to consider the proper range of potentially affected water sources under the legal availability prong. Without a complete range, the full legal availability analysis could not be performed.

2. Legislative

Montana’s biennial legislature met in 2023 passed House Bill 114 (HB 114). The bill was passed to address the time-consuming process of evaluating and approving permits for beneficial water uses.

HB 114 streamlines the review and approval process for both. For example, assuming no requested extensions or application deficiencies, HB 114 shortens DNRC’s application review timeframes from 360 days to 105 days. The new legislation also creates expanded opportunity for public comment on applications and enhances public accessibility to pending applications.

As of the date of this update, DNRC is in the process of adopting rules to implement HB 114.

I. Nebraska

1. Judicial

The Nebraska Supreme Court’s decision in In re Application A-19594 significantly curtailed the ability of objectors to participate in Nebraska water-rights applications. An interlocal entity known as Platte to Republican Basin High Flow Diversion Project (PRD) applied to the Nebraska Department of Natural Resources (DNR) for a permit to appropriate up to 150 cubic feet per second of “excess flows” from the Platte River Basin and divert it into the Republican River Basin. PRD proposed that the appropriation would be “perpetually junior” to all other surface-water appropriations and “w[ould] never be able to exercise a call over any future junior appropriations granted for water uses of the Platte River within the Platte River Basin.” The diversion, according to PRD, would aid the state in complying with the Republican River Compact.

After publishing notice of the application, DNR received ninety-five comment letters and seven formal objections. All seven objectors used or managed Platte River flows downstream of the proposed diversion. They claimed a right to object and initiate a contested case under both DNR regulations and Nebraska’s judge-made injury-in-fact requirement.

On PRD’s motion, without discovery or a contested case, however, DNR dismissed all seven objectors on standing. Four objectors appealed, one cross-appealed, and the Nebraska Supreme Court accepted direct review.

The court affirmed DNR’s dismissal for lack of standing. First, the court rejected the objectors’ argument that DNR regulations conferred standing. The Nebraska Constitution imposes no case-or-controversy requirement, and DNR regulations confer objector standing on any “interested person,” meaning “a person who or an entity which has a specific legally protectable interest” and “is or could be adversely affected in a legally cognizable way by the outcome of a proceeding.” The objectors contended that the phrase “could be adversely affected” conferred standing more broadly than common law. But the court disagreed. It held that the next phrase, “in a legally cognizable way,” tethered objector standing to the judge-made injury-in-fact requirement.

Second, the court held that the objectors lacked common-law standing. The objectors had disputed that PRD’s proposed “excess flows” and “perpetually junior” conditions could be considered in a facial motion to dismiss. The court, however, relied on those conditions to affirm dismissal. While the objectors claimed that statutes would permit DNR to approve the application without the requested condition, the court expressly relied on PRD and DNR’s assertions during oral argument “that the condition was a ‘critical part’ of the application” and that if “the condition was not warranted, PRD would need to amend and refile the application.”

The court then dispensed with each objector individually. Because the application only concerned “excess flows” that would be “perpetually junior,” the court held that no objector could show that their water rights or statutory authority would diminish. And, because the objectors already owed statutory duties to manage Platte River water, the court held that any reduction in that water by PRD would not necessarily trigger new duties and use of public funds. Without discussion, the court also rejected public-interest standing as a basis for objections. At least one scholar has speculated that the decision leaves unclear whether any objector could have standing to participate in an interbasin transfer application.

2. Legislative

The Nebraska Legislature, in 2022, adopted the Perkins County Canal Project Act. It directed DNR to develop, construct, and operate a canal in Perkins County, Nebraska consistent with the South Platte River Compact to protect Nebraska’s full entitlement to flows of the South Platte River. Two new statutes will allow DNR to construct the canal along Nebraska’s border with Colorado.

The first is Legislative Bill 818, which directly amends the Perkins County Canal Project Act. It appropriates $574.5 million for the Perkins County Canal Fund. DNR may use that money to identify and purchase the land then develop, construct, manage, and operate the Perkins County Canal. Combining this with 2022 funding, DNR now has received $628 million in appropriations to construct and operate the Perkins County Canal.

Second is Legislative Bill 565, which creates the Public Water and Natural Resources Project Contracting Act. While the bill does not itself amend the Perkins County Canal Project Act, testimony for this legislation made the connection clear. DNR may now utilize alternative methods of contracting for public water and natural resources projects, including the Perkins County Canal. DNR may, for instance, solicit and execute design-build contracts, progressive design-build contracts, or construction manager-general contractor contracts. DNR may also hire an engineering or architectural consultant to assist with various project performance criteria and requests for proposals.

J. Nevada

1. Legislative

On May 23, 2023, Governor Joe Lombardo approved Assembly Bill 19 which expands the entities eligible to apply for a grant for “the clearance, maintenance, restoration, surveying and monumenting of navigable rivers” in Nevada to include tribal governments. The bill also provides for an officer or employee of a tribal government, who is not a professional engineer or professional land surveyor, to apply for appointment as a state water right surveyor. Any certificate issued by such officer or employee is restricted to work for the tribal government.

On June 2, 2023, Governor Joe Lombardo approved Assembly Bill 34 which modifies the public notice requirements for certain water applications and revises requirements for maps relating to water rights. The bill eliminated the requirement that notice be published consecutively and further requires the notice to be published on the internet website of the Division of Water Resources of the State Department of Conservation and Natural Resources. Further, the bill removed the requirement that certain maps relating to water rights be on mylar and tracing linen.

On June 6, 2023, Governor Joe Lombardo approved Assembly Bill 220 which authorizes a district board of health to establish a voluntary financial assistance program to pay the costs for property owners with existing septic systems to connect to the community sewage disposal system; revises the conditions which must be met before the issuance of a permit to operate a water system; exempts public agencies or volunteer fire departments from statutory requirements relating to the appropriation of water when extinguishing fires in an emergency; restricts the issuance of applications and temporary permits to appropriate groundwater in areas containing water furnished by a public entity; restricts the use of waters of the Colorado River for irrigating nonfunctional turf; authorizes the Southern Nevada Water Authority (SNWA) to restrict the use of water by single-family residences to not more than .5 acre-feet of water during any year in which the Federal Government reduces Nevada’s allocation of the Colorado River to 270,000 acre-feet or less; prohibits the installation of new septic systems on parcels of property which use waters of the Colorado River; requires certain parcels of property using waters of the Colorado River to participate in an irrigation water efficiency monitoring program; authorizes SNWA to operate a program to convert property served by a septic system to a municipal sewer system and assess fees related thereto; and authorizes SNWA to authorize its General Manager to restrict water usage when the Federal Government has declared a water shortage in the Colorado River, if an emergency exists, or if the delivery system cannot provide adequate volumes of water. The bill further requires that, if a proposed subdivision will be served by a public water system, the planning commission or governing body must file the tentative map for review and comment with the supplier of water in a county whose population is 700,000 or in a general improvement district. In these cases, the governing body may not approve a tentative map unless the supplier of water determines that there is available water which meets applicable health standards and is sufficient in quantity for the reasonably foreseeable needs of the subdivision. The presented final map in such a county or general improvement district must include a certificate of approval from the supplier of water.

On June 1, 2023, Governor Joe Lombardo approved Senate Bill 113 which requires the State Engineer to affirm or modify the perennial yield of a basin when they designate it as a critical management area (CMA), authorizes the State Engineer modify the perennial yield for the CMA based on the best available science, and requires the State Engineer to review, and modify if necessary, the perennial yield before reviewing the results of a groundwater management plan (GMP). If the State Engineer decreases the perennial yield after a GMP is submitted, holders of permits and certificates with a date of priority after the date on which total permitted and certificated withdrawals were equal to the perennial yield must comply with the GMP. If the perennial yield is increased, those water right holders may opt out of complying with the GMP.

On May 31, 2023, Governor Joe Lombardo approved Assembly Bill 91 which expands an existing exception to the requirement to submit an application for a permit to change place of diversion where the applicant will sink or bore a replacement well less than 300 feet from the existing place of diversion and the original site and replacement site are on property owned by the same person for whom water has already been appropriated. This exception is expanded to allow a replacement well without a permit if both the original and replacement wells are on public land or if the original well is on public lands and the site of the replacement well is on the appropriator’s land, but less than 300 feet from the original well. A person seeking to sink or bore a replacement well on public land must notify relevant federal agencies and comply with all applicable federal laws.

On June 2, 2023, Governor Joe Lombardo approved Assembly Bill 191 which removed the requirement for suppliers of water with less than fifteen service connections to adopt and update a plan of water conservation, conduct a water loss audit or calculate water losses, or adopt a plan to provide certain incentives relating to water conservation.

On May 31, 2023, Governor Joe Lombardo approved Senate Bill 258 which allows the State Engineer to grant a permit for a temporary change of the place of diversion, manner of use or place of use of water already appropriated for a period not to exceed three years if the temporary change is for a renewable energy generation project. The bill further requires the State Engineer to give notice when such an application is filed.

2. Administrative

On April 20, 2023, the State Engineer issued Order 1333 establishing the perennial yield for the Cold Springs Valley Hydrographic Basin (100) as 1,500 acre-feet annually and finding that current groundwater commitments exceed the perennial yield but consumptive use of current pumping does not.

K. New Mexico

1. Judicial

Intrepid Potash-New Mexico, LLC lost its appeal of a district court decision that determined it had forfeited or abandoned all but 150 acre feet per year (AFY) of its almost 20,000-AFY claim to the surface water of the Pecos River. The New Mexico Court of Appeals affirmed the district court, which found in an expedited inter se proceeding that Intrepid and its predecessors (collectively, Intrepid) had forfeited all water rights in excess of about 5,800 AFY and abandoned all but 150 AFY of the remaining water rights. Beginning in 1931, Intrepid developed a potash mine and refining facility using Pecos River water, but in 1948, cooling towers were installed that obviated the need to use river water for cooling. In the 1950s, the mining operation switched to using groundwater, and by 1973, the facility near the Pecos River was dismantled. Deferring to the district court findings of automatic forfeiture under pre-1965 law, the appellate court rejected Intrepid’s arguments, which it made in twenty-five extensions of time, that it failed to use water because of shortages in the Pecos River, noting that Intrepid could not put the water to beneficial use because it had dismantled the facility. The court also found that Intrepid’s due process rights were not violated by the pre-1965 law that automatically forfeited water rights after four years of nonuse without notice because Intrepid participated in the expedited inter se proceeding decades later. The court also affirmed the district court in its finding that Intrepid abandoned all but 150 AFY of its remaining water rights through decades of non-use. The district court applied the seven-factor framework announced in 2021 to determine whether abandonment occurred. Using those factors, the district court concluded that Intrepid and its predecessors were speculators, who merely hoped to use the water rights when it was profitable, instead of intending to put the water to beneficial use.

The New Mexico Supreme Court let stand a decision that denied an application to appropriate 350 acre-feet per year (AFY) of groundwater for a subdivision on the unusual basis of conservation. The Court of Appeals affirmed the district court’s reversal of a State Engineer decision and determined that the appropriation was contrary to the conservation of water in the state and would impair as many as 100 wells. Aquifer Science, LLC first filed an application to appropriate 1,500 AFY in June 2009 to provide water to a multi-use development with two golf courses. After the State Engineer had initially denied its application because no water was available to appropriate, Aquifer Science reduced its application twice before trimming its request to 350 AFY. Following the final reduction, the State Engineer reversed its earlier position and approved the permit. Several parties opposed the application, including nearby residents and Bernalillo County. Following a two-week bench trial in the appeal, a district court denied the application. The court denied the application on the uncommon ground of conservation of water, finding in part that neither Aquifer Science nor the State Engineer considered climate change. The Court of Appeals declined to rely on this finding in affirming the decision because the State Engineer never considers climate change in its decisions. Instead, the appellate court relied on several other facts, including the lack of limits on water use, allowance of independent wells, and the long lead time before a planned golf course could use effluent for irrigation instead of fresh water.

2. Legislative

The New Mexico Legislature passed a bill that significantly reduces the governor’s power to appoint members of the nine-member Interstate Stream Commission (ISC), which oversees water policy and interstate issues. In the future, the New Mexico Senate must approve new ISC members. The bill also adds new qualifications, such as ten years of experience in New Mexico water issues. Only four members may be from irrigation districts or other sections of the state, and members must include a representative of an acequia or community ditch, a drinking water utility that provides at least 500 AFY of water for domestic use, such as Albuquerque, a member of a Native American nation or tribe, and a member of a New Mexico Indian pueblo.

The Water Security Planning Act requires the ISC to promulgate rules and guidelines for regional water planning, and the plans must consider access to water for domestic use.

The Regional Water System Resiliency Act allows two or more public water providers, such as small mutual domestic associations, to voluntarily merge and form a regional water system. Such a merger previously required a specific act of the legislature.

L. North Dakota

1. Legislative

During the 68th regular and special sessions, the Legislative Assembly of North Dakota enacted Senate Bill 2372 and Senate Bill 2397 requiring certain water resource districts within certain drainage basins to form and remain a member of a joint water resource board relative to the district’s respective drainage basin. Previously, water resource districts in North Dakota were generally organized based on county lines and overseen by county commissions. The purpose of this change appears to be to force local water management decisions to be managed on a watershed basis rather than by political boundaries.

M. Oregon

1. Judicial

The Oregon Court of Appeals in Waterwatch of Oregon, Inc. v. Water Resources Department found that calculations for an extension of time request on a municipal water right permit, made by the Oregon Water Resources Department (OWRD), complied with statutory and administrative rule requirements. Compliance was met because neither the statute nor the rule explicitly tells OWRD how to calculate the required consideration. Thus, the agency’s determination of what information to use and consider in its own application process was sufficient to comply with the Court’s orders. The Court found for OWRD and Oregon Fish and Wildlife Department.

The Oregon Court of Appeals in East Valley Water District v. Oregon Water Resources Commission approved the denial of an application for water storage because evidence supported that the reservoir would conflict with the habitat of cutthroat trout, frustrating the purpose of the senior instream water right. Within its opinion, the Court of Appeals went through seven assignments of error presented by East Valley Water District. Notably, the Court found that an instream right does not only guarantee a flow that is left instream, meaning so long as the flow designated in the certificate is met at the measurement point, but the senior instream water right must not be frustrated by a junior water right. Also, the Court found that when the Commission interprets the public interest factors in ORS 537.170(8), it need only identify the specific public interest which will be impaired or detrimentally affected, and how it will be affected—i.e., only one factor needs to be impaired, not all factors considered.

2. Legislative

The Oregon State Legislature passed a bipartisan Drought Resilience and Water Security Package (BiDRAWS), outlined in House Bill 2010, to assist in battling the extreme drought conditions many western states experience. The areas receiving the largest amount of funds from the package include water project investments, instream priorities, and watershed health. Water project investments include an irrigation modernization grant program, aquifer recharge, storage, and recovery for areas with groundwater challenges, Deschutes River conservancy, piping, monitoring, and measurement, Rogue River and Medford Irrigation District dam project, South Cooper Mountain Purple Pipe project, and professional engineering services for dams. Instream priorities and watershed health include fish and wildlife passage priorities, streamflow restoration and planning, drought resilience projects, high desert restoration and infrastructure, and Western Juniper removal.

3. Administrative

Oregon Water Resources Department (OWRD) and Oregon Water Resources Commission (OWRC) adopted rules to implement requirements from House Bill 2145 (2021), House Bill 3030 (2019)/Senate Bill 688 (2019), and House Bill 4061 (2022), as well as “housekeeping” items. The changes modified Oregon Administrative Rules (OAR) Chapter 690, Divisions 190, 200, 205, 210, 2015, 225, 240 and 260.

OWRD and OWRC amended rules surrounding well construction including well constructor licensing, start cards, well reports, special standards, exempt use registration and well construction compliance to comply with House Bill 2145 (2021). Changes include modifications to OAR 690-205-0200 and OAR 690-240-0065 to contain a welding proficiency for water supply well constructors and for monitoring well constructors respectively. Also, OAR 690-205-0200, 0205, and OAR 690-240-0385 were modified for new requirements for “start cards”—the document submitted to OWRD when a well driller plans to start drilling a well. Changes include electronic submittal, and a requirement to submit a card not later than three days and not earlier than 60 days before beginning construction. OAR 690-205-0020 and OAR 690-240-0065 were amended to comply with House Bill 3030 (2019)/Senate Bill 688 (2019) permitting a temporary authorization for well drilling licenses for spouses of active-duty military members.

Also, OWRD and OWRC amended OAR 690-260-0030 to reflect the change from House Bill 4061 (2022) which modifies the timeline for a notice of violation. OWRD must notify a party of a violation within ten business days of confirmation from the OWRD Director of a violation.

N. Texas

1. Constitutional

The Legislature of the State of Texas passed Senate Joint Resolution 75, which proposed to amend the Texas Constitution to require the creation of the Texas Water Fund. On November 7, 2023, Texas voters approved Proposition 6 and adopted the proposed amendment. This new fund, which is to be administered by the Texas Water Development Board (TWDB), will serve as a new dedicated source of funding to be used to replace and upgrade water utility infrastructure and develop new water sources. The Legislature also authorized a one-time $1 billion deposit into the fund. TWDB is authorized to transfer funds between the Texas Water Fund and several other water-related funding accounts. Money appropriated by the state legislature to the fund is excluded from the state’s appropriation limit.

2. Judicial

Cactus Water Services, LLC v. COG Operating, LLC is the first appellate decision in Texas involving questions related to the ownership of produced water. A majority of the justices on the El Paso Court of Appeals sided with oil and gas lessee over the owners of the surface estate and held that lessee had exclusive right to “produced water” as part of oil and gas product stream. “Produced water” results from hydraulic fracturing or “fracking” which involves pumping fluid down a well at high pressure so that it is forced into the formation, which creates cracks in the rock. The fluid pumped into the well contains proppants that keep those cracks open and allow oil and gas to flow to the wellbore. The composition of the fluid that flows to the wellbore depends on the location, but once it reaches the surface, it is treated by equipment that separates out the oil and gas. What remains is referred to as produced water. The majority held that the mineral leases at issue in this case – which conveyed to the oil and gas lessee the exclusive right to explore for and produce oil and gas – also conveyed the exclusive right to “produced water” resulting from lessee’s fracking operations, and thus the surface owners’ subsequent transfer of rights to “water produced from oil and gas wells” was void. The majority also noted that: state law classifies “produced water” as a waste byproduct of oil and gas production, rather than groundwater, and that this is consistent with industry practice; surface owners did not claim ownership over “produced water” before entering subsequent leases; common industry practice was for well operators to dispose of oil and gas waste; and that leases did not suggest that the parties intended to assign rights at a molecular level. One justice filed a dissenting opinion disagreeing with the majority and asserting that, based on long-established legal principles regarding water, and oil and gas, the mineral leases at issue should be interpreted as conveying oil, gas and hydrocarbons, but not the water incidentally recovered from the subsurface, to the oil and gas operator.

3. Legislative

The Texas Legislature passed Senate Bill No. 1047, which concerns the Texas Produced Water Consortium (TPWC). TPWC was created with the goal of finding beneficial use for fluid oil and gas waste, known as “produced water.” In 2022, TPWC released a report detailing the economics of treating produced water and recommending next steps to deal with 250,000 acre-feet per year of such water. Senate Bill 1047 amends current law relating to the funding and activities of TPWC by, among other things, requiring TPWC to: (1) select a pilot project for consideration and implementation by October 1, 2023; and (2) submit to the Legislature, by October 1, 2024, a report regarding (a) the status of the pilot project that was selected; and (b) any suggested policy, regulatory, or legislative changes resulting from an analysis of the implementation of the pilot project selected.

O. Utah

1. Judicial

In Utah Stream Access Coalition v. VR Acquisitions, Utah Stream Access Coalition claimed a constitutional right to incidentally touch privately owned beds of state waters as reasonably necessary to exercise public recreation rights in those waters. The issue on appeal is whether the historical record supports the appellant’s constitutional claim. The district court concluded it did not, holding that the historical record did not demonstrate a public easement to touch private land while engaged in the recreational use of public waters, based on the law of easements as it existed at the time of the framing of the Utah Constitution. The Supreme Court affirmed.

2. Legislation

Utah Passed Senate Bill 144. Senate Bill 144 allows water right holders to file instream flow applications to deliver water to reservoirs in the Colorado River System in accordance with “in the state in accordance with: (i) Colorado River Drought Contingency Plan Authorization Act, Public Law 116-14; (ii) a water conservation program funded by the Bureau of Reclamation; or (iii) a water conservation program authorized by the state.” Before filing the application with the Utah State Engineer, the water right holder must obtain authorization from the executive director of the Utah Colorado River Authority who must attest that the use is consistent with the bill.

Utah passed Senate Bill 277 which creates the “Agricultural Water Optimization Committee.” The committee is to adopt rules for the allocation of grant money for agricultural water optimization projects. The bill also allows water users to file a water right change application on “saved water,” which is the diversion or depletion reduction resulting from the optimization project. “Depletion reduction" means a net decrease in water consumed accomplished by implementing water optimization practices during beneficial use of water under an approved water right.” “‘Diversion reduction’ means a decrease in net diversion amount from that allowed under a water right accomplished by implementation of water optimization practices.” Allowing water users to maintain an historical beneficial use and file a change application on conserved water for a new beneficial use is a sea change in Utah water law.

Utah passed House Bill 150 allowing the governor to declare a temporary water shortage emergency and establish water use preferences during the emergency. To declare a water shortage emergency, “an existing or imminent short-term interruption of water delivery . . . caused by manmade or natural causes other than drought” must threaten “the availability or quality of an essential water supply or water supply infrastructure” or “the operation of the economy” and “jeopardizes the peace, health, safety, or welfare of the people of this state.” Such declaration may only be issued “with the advice and recommendation of the State Engineer” and “in consultation with the emergency management administration committee.” The bill allows compensation if a preferential water use interrupts another water user.

Utah passed House Bill 349 prohibiting the State Engineer from approving water reuse applications after November 1, 2023, if the water in the reuse project would have been discharged into the Great Salt Lake. The restriction does not apply to federally owned water rights or projects that have a water replacement plan.

Utah passed House Bill 370 criminalizing interference of public utilities, including water facilities such as a dam, pipeline, culvert, fire hydrant, flume, conduit, ditch, head gate, canal, reservoir, storage tank, spring box, well, meter, weir, valve, casing, cap, or other facility used for the diversion, transportation, distribution, measurement, collection, containment, or storage of water, stormwater, wastewater, or sewage. Interference is a first-degree felony if done intentionally or knowingly, and a second-degree felony if done recklessly.

Utah passed House Bill 491 creating a new Office of the Great Salt Lake Commissioner. The Office is tasked with preparing “a strategic plan for the long-term health of the Great Salt Lake and update the strategic plan regularly” as well as executing the plan, monitoring lake levels, salinity, and the lake’s overall health. Also, “[t]o the extent not prohibited by federal law and notwithstanding any other provision of state law, the commissioner may require a state agency to comply with the strategic plan, or to take action or refrain from acting to benefit the health of the Great Salt Lake.”

P. Washington

1. Judicial

In Burbank Irrigation Dist. #4 v. Washington Dep’t of Ecology, Division III of the Washington Court of Appeals issued a decision on a water right transfer from one municipal water provider to another. The decision leaves many issues undecided, however the decision is pending a remand to the Pollution Control Hearings Board (PCHB).

The case involved a proposed transfer by an irrigation district (Burbank) that provided drinking water to an unincorporated area across the Snake River from the City of Pasco. Burbank applied to the local Conservancy Board to amend the water right and to transfer a portion of the water right to Pasco. The Conservancy Board recommended approval of the transfer based on findings that the water right was valid for transfer because it had been continuously used as a municipal water right, Burbank had exercised reasonable diligence in putting the water to beneficial use, and the proposed transfer would not be detrimental to the public interest. Rejecting the Conservancy Board’s findings, the Department of Ecology (Department) denied the application on grounds that the change would unlawfully: (1) enlarge the right; (2) contradict original intent; and (3) be contrary to the public interest as speculation. Burbank and Pasco appealed the decision to the PCHB. The PCHB concluded that the transfer would result in enlargement of the water right and upheld the denial. Burbank appealed the PCHB’s decision to the local trial court, which reversed the PCHB’s order and granted summary judgment to Burbank. The Department appealed.

The Court of Appeals reversed the trial court’s summary judgment, affirmed the trial court’s reversal of the PCHB’s summary judgment in favor of the Department, and remanded the decision to the PCHB for further fact finding and proceedings. The Court held that there were disputed material issues of fact as to whether the subject water right was independent of three related water rights and could be transferred without unlawful enlargement.

Several of the arguments and issues raised before the Court of Appeals will potentially impact future municipal water rights. First, the Court recognized that alternative water rights are independent water rights, regardless of whether they are additive or non-additive of annual quantity. Second, the Court of Appeals determined that the Department could consider the original intent of the water right in determining the scope of the water right. Third, although the Court of Appeals did not reach issues regarding the public interest and the transfer of inchoate municipal water, these issues remain alive on remand.

2. Legislative

In 2023, the Washington State Legislature modified timelines and other initial procedural actions in a water rights adjudication, amending The Revised Code of Washington (RCW) 90.03.120-140, 90.03.625, 90.03.635, and 90.03.645. These amendments included specific timelines for an adjudication filed in Water Resource Inventory Area (WRIA) 1. The Department is preparing to file a general stream adjudication in WRIA 1 that covers the Nooksack River system and the area of Whatcom County north to Canada in 2024.

Specifically, the statutory amendments specify that for a WRIA 1 adjudication, claims are to be filed within one year after the service of summons. Additionally, claimants are to file evidence to support their claims no less than three years after the claim filing deadline. For both deadlines, the court may establish special rules to allow for later filing dates.

In 2023, the Washington State Legislature also enacted legislation relating to drought preparedness. While the Department was previously authorized to issue grants to qualifying public entities to reduce hardship related to drought, pursuant to H.B. 1138, projects funded by such grants no longer need to be completed while a drought emergency order is in effect. The legislation also contains several funding mechanisms for drought preparedness and response.

Q. Wyoming

1. Legislative

House Bill 93 authorizes and appropriates funds for certain Level III construction projects. These projects include cloud seeding in the Medicine Bow, Sierra Madre, and Wind River Mountain Ranges, water transmission and storage projects, and certain rehabilitation projects. The Wyoming Legislature further amended prior Level III construction projects to include new development projects, rehabilitation projects, and dams and reservoirs projects. Its companion bill, Senate File 96, authorized certain reconnaissance (Level I) and feasibility (Level II) studies for water development projects. It appropriates money to certain reconnaissance and feasibility studies for both new development and rehabilitation projects. It also sets forth reporting requirements and details the use of unexpended or unobligated funds and sets forth amendments to prior studies.

In Senate File 68, the Wyoming Legislature created Wyoming Statute section 34-1-158, setting forth the requirements for a prescriptive easement for a water conveyance. Specifically, such an easement can be established if a water user has “maintained a water conveyance under a claim of right for a period of ten years.” During those ten years, the use must be continuous and uninterrupted, open and notorious, and adverse. The holder of such a prescriptive easement may file a notice describing the easement with the county clerk in the county in which the easement is located and may use, repair, and maintain the water conveyance if compliant with all notice and other requirements.

2. Administrative

On February 27, 2023, Wyoming, Colorado, Utah, and New Mexico, through the Upper Colorado River Commission (UCRC), submitted an amendment to the 2022 Drought Response Operations Plan. Pursuant to this Amendment, Drought Response Operations releases at Flaming Gorge were suspended beginning no later than March 7, 2023, through the remainder of the Plan Year.

On May 17, 2023, Wyoming, Colorado, New Mexico, and Utah, through the UCRC, approved the 2023 Drought Response Operations Plan, which impacts Flaming Gorge, Lake Powell, and Blue Mesa through April 2024. The plan seeks to recover water released from Flaming Gorge and Blue Mesa in 2021 and 2022.

On September 21, 2023, at a special meeting of the UCRC, Colorado, New Mexico, Utah, and Wyoming agreed to move forward with a System Conservation Pilot Program in 2024 to mitigate drought impacts in the Upper Colorado River Basin.