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Slowing the draw

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Do you drink the bottled Arrowhead Spring Water, sold by Nestle?

There may be a little less of it available, depending on how several water rights-related legal tests pan out.

On December 20, the California State Water Resources Control Board told Nestle that it doesn’t have the rights to drew water – or at least, the amount it’s drawing now – from the San Bernardino National Forest.

This situation dates to at least April 2015, when the state began to receive complaints about the company: “The complaint allegations included diversion of water without a valid basis of right, unreasonable use of water, injury to public trust resources, and incorrect or missing reporting, all regarding Nestlé’s diversion of water from springs at the headwaters of Strawberry Creek in the San Bernardino National Forest for bottling under the Arrowhead label. Many of the complainants emphasized their concerns about the impacts of Nestlé’s diversions during California’s recent historic drought.”

To be clear, Nestle did not just walk onto the forest lands and start pumping; it does have a legal argument. It has reported its groundwater diversions to the state, saying they comport with state requirements. It claims a right, for example, that dates back to 1865, and makes use of a 1912 basis for a right that specifically refers to water bottling.

But the amounts have been large: “Over the period from 1947 to 2015, Nestlé’s reported extractions from the springs in the SBNF have averaged 192 acre-feet, or 62.6 million gallons, per year [emphasis added]. Nestlé claims several bases of right for the diversion and use of water from the Strawberry Creek Watershed.”

The legal problem seems to relate to the idea that water bottling on a really large scale is relatively new thing.

For example, the state found that the 1865 water right Nestle says it is using does exist, but it “is limited to riparian uses and is not valid for Nestle’s current appropriative diversion and use of water.”

And although some rights have been reasonably (or at least realistically) used for some diversions, “a significant portion of the water currently diverted by Nestle appears to be diverted without valid basis of right.”

And, there isn’t enough solid information to be able to tell whether the public trust is being harmed by the large-scale diversions.

This is the latest turndown of a major diversion by Nestle (another large rejection, at the Columbia River basin in Oregon, came only weeks earlier) in recent months.

Might this be an indicator that a tide is turning, as it were, on the question of how much water we’re willing to pull out of the ground to fill containers of bottled water?

Could be.
 

Water Digest – December

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The Bureau of Reclamation has released two funding opportunities for fiscal year 2018 through its Drought Response Program, which is part of the Department of the Interior’s WaterSMART program. These funding opportunities are available for entities to develop drought contingency plans and build long-term solutions to drought.

The U.S. Senate has confirmed Brenda Burman as the U.S. Department of the Interior Bureau of Reclamation Commissioner. She is the first woman to ever lead the Bureau.

Seniority in water rights is in many places a precious asset, but not a guarantee that the right won’t be taken away. That may happen in the case of Martha Carr, who lives in Burbank, California but owns property in South Dakota. He was the eventual inheritor of Robert Wittke, a settler who had filed for the right at French Creek near Custer in 1878.

The Texas Commission on Environmental Quality has held off until at least mid-December intervention in a water use battle over the San Saba River, where are landowners say that upstream farmers have been over-pumping water.
They maintain the upstream users have been pumping in excess of their permitted water rights, and have asked for a watermaster to control that use.

The Bureau of Reclamation and State of Utah are initiating negotiations for a water exchange contract, which proposes exchanging the state’s assigned Green River water right for use of Colorado River Storage Project water released from Flaming Gorge Dam. The negotiation meeting is scheduled for Monday, December 4, 2017, at 1:00 p.m. at the Dixie Convention Center, 1835 South Convention Center Drive, St. George, Utah.

Will the Governor’s Drought Interagency Coordinating Group recommend to Governor Ducey that he add the approaching “water year” to the State’s lengthy string of official drought years? Or will the panel recommend that the official dry spell designation end in Arizona, thus following in the footsteps of California, where that state’s drought designation was lifted in the wake of its extraordinarily wet winter? Considering that much of Arizona remains in the same long-term state of drought it has experienced since the mid-1990s, the ICG’s recommendation for maintaining the declaration was not the toughest of calls, as it turned out.
 

Water Digest – November

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The state of Oklahoma on October 10 approved a major water diversion request by the city of Oklahoma City. Oklahoma City had asked the state for a regular permit to use 115,000 acre feet from the Kiamichi River and Sardis Lake for general municipal uses. The state noted “the application was protested by 85 persons including entities, 25 of whom were recognized as parties at the date of the hearing,” which was held on August 21 to 24.

The state of Oregon positioned itself in late October to reject a proposal from Nestle Water for its plan to bottle water from the Cascade Locks area in the Columbia River Gorge. The proposal for a Nestle water bottling plant would involve an exchange of .5 cfs of spring water, presently being used for a state Department of Fish & Wildlife salmon hatchery, for an equivalent amount of Cascade Locks city groundwater.

In a critical ruling for Wisconsin’s waters, Dane County Circuit Court ordered the DNR to vacate, or invalidate, seven high-capacity well permits and remand one for consideration. Clean Wisconsin sued the DNR in October of 2016, after the agency issued a series of high-capacity well permits that disregarded its own scientific analysis of the impacts the wells would have on neighboring water bodies. The proposed wells would be located primarily in the Central Sands region of Wisconsin, where groundwater depletion is already a serious problem.

After five years of drought, the 2017 water year brought unexpectedly heavy precipitation, ranking second only to 1983 as California’s wettest year for statewide runoff. The dramatic swing in water conditions highlights the need to develop better long-range weather forecasting to cope with the state’s highly variable annual precipitation.

The Bureau of Reclamation has released a Finding of No Significant Impact for Alternative 1 from the Bureau of Land Management’s 2014 Final Environmental Assessment for the Southern Nevada Intertie (Harry Allen to Eldorado 500 kV Transmission) Project.

A new Boise River system feasibility study has been launched to investigate the possibility of increasing surface water storage in the Boise River watershed by raising the height of up to three dams on the Boise River. The Bureau of Reclamation and the Idaho Water Resource Board (IWRB) are working together on options to increase water storage capacity at Arrowrock, Anderson Ranch, and/or Lucky Peak dams.

Water Digest – October 2

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The legal publication Courthouse News reported on August 31 about the challenge facing the 9th Circuit Court of Appeals in working through who has rights to what water in three complex water pumping cases based in western Nevada.

Comstock Mining Inc. said on August 29 that the Nevada Department of Transportation celebrated the completion of the new Infinity Highway (formerly USA Parkway) yesterday—three months ahead of schedule. The company also said it has escrowed the sale of 54 acre-feet of water rights in two transactions that generated over $550,000. The transaction is expected to close in the first week of September and the funds will immediately be used to pay down long-term debt, consistent with the Company’s original plan.

The California Water Storage Investment Program Project Review Portal is now active. This portal will allow the public to access WSIP applications, review, and decision related documents. The Water Commission’s next meeting is on September 20.

Water Digest – September 4

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

The legal publication Courthouse News reported on August 31 about the challenge facing the 9th Circuit Court of Appeals in working through who has rights to what water in three complex water pumping cases basedf in western Nevada.

Comstock Mining Inc. said on August 29 that the Nevada Department of Transportation celebrated the completion of the new Infinity Highway (formerly USA Parkway) yesterday—three months ahead of schedule. The company also said it has escrowed the sale of 54 acre-feet of water rights in two transactions that generated over $550,000. The transaction is expected to close in the first week of September and the funds will immediately be used to pay down long-term debt, consistent with the Company’s original plan.

The California Water Storage Investment Program Project Review Portal is now active. This portal will allow the public to access WSIP applications, review, and decision related documents. The Water Commission's next meeting is on September 20.

Water Digest – August 27

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

Nevada Attorney General Adam Paul Laxalt led a ten state coalition of attorneys general in filing a friend-of-the-court brief in the U.S. Supreme Court defending the ability of state governments to effectively regulate groundwater usage within their state. The brief urges the Court to review a recent Ninth Circuit decision that concluded, in conflict with multiple state-court decisions, that the federal government has broadly reserved rights to groundwater that preempt long-established state-law regulations.

The South Carolina Supreme Court on July 19 rejected a potentially sweeping challenge to the state’s water regulation system, which sought a declaration that it amounted to an unconstitutional taking.

Kinross Gold U.S.A., Inc., Trout Unlimited and the Rocky Mountain Elk Foundation announced on August 17 an agreement to protect and conserve important fish and wildlife habitat adjacent to Yellowstone National Park.

A federal court judge today found that the Bureau of Land Management failed to show how it would compensate for significant losses to wetlands and wildlife habitat caused by the Southern Nevada Water Authority’s massive groundwater pipeline development project.

The City of Aspen, Colorado, is in contract to buy two adjoining parcels of land in Woody Creek for $2.65 million to potentially use for water storage in the future.

A blueberry farm on Cockreham Island along the Skagit River will restore habitat on a nearby stream under a settlement agreement with the Washington Department of Ecology.

Water Digest – August 7

Water rights weekly report for July 24. For much more news, links and detail, see the National Water Rights Digest.

As part of its effort to restore a self-sustaining Chinook salmon population within the San Joaquin River while minimizing impacts to water contractors, the San Joaquin River Restoration Program resumed its Restoration Flows to the river July 21. Since January 4 of this year, Friant Dam releases have been managed for flood control. This precluded the program’s Restoration Flows, which include releases from Friant Dam for downstream riparian interests. With the change, water users should be aware that diversions of Restoration Flows are not allowed unless authorized by the Bureau of Reclamation, as these flows are dedicated for preservation and enhancement of fish and wildlife resources pursuant to Water Code section 1707 and are protected under the California Water Code.

AQUAOSO™, an early-stage water management and trading platform that helps customers manage, identify, buy and sell water rights is launching a beta version of its water trading platform. This initial roll-out is intended to better connect buyers and sellers of water rights.

Mexus Gold US President Paul Thompson and Marco Martinez, CEO of MarMar Holdings, announced on July 31 that there is substantial amount of gold in the pregnant pond and on the heap leach pad which is currently being leached.

Water Digest – July 31

Water rights weekly report for July 24. For much more news, links and detail, see the National Water Rights Digest.

Following adjournment in mid-July of a third state legislative session, Washington legislators are being pressed to return for a fourth – to deal not only with a state capital spending budget (which was left undone) but also legislation to deal with the state Supreme Court water rights decision from last fall usually called the Hirst decision.

Two North Carolina cities – Wilkesboro and North Wilkesboro, located near each other in the western part of the state – approved an agreement on July 27 allowing the two to continue with plans for receiving water from the planned W. Kerr Scott Reservoir intake project.

Water Digest – July 24

Water rights weekly report for July 24. For much more news, links and detail, see the National Water Rights Digest.

A collection of cities in northwestern Arkansas are in conflict over water rights and the use of water in the area in and around their communities. The cities involved are Gravette and Centerton (the two main contestants), with impacts reaching to Hiwasse and Bella Vista.

A shift in water use and diversion by a private user has resulted in the small city of Dayton, Wyoming, deciding it too needed to change the point of diversion for its water rights.

From a statement by the group Global Witness: "It has never been deadlier to take a stand against companies that steal land and destroy the environment. Our new report Defenders of the Earth found that nearly four people were murdered every week in 2016 protecting their land and the natural world from industries like mining, logging and agribusiness."

How do you apportion water rights that are located underground? The point was considered in a podcast based on the marketplace.org website.

Water Digest – July 17

Water rights weekly report for July 17. For much more news, links and detail, see the National Water Rights Digest.

A water adjudication in the Pojoaque Basin north of Sante Fe that has been ongoing for 51 years was ended on June 14 with a final judgment and decree issued by federal Judge William P. Johnson. The adjudication, dubbed the Aamodt case after the Los Alamos researcher (R. Lee Aamodt ) whose name was first listed among the defendants, has been in the process of settlement for a long time.

South Dakota may by the only state to bar withdrawal of more groundwater than is replenished into the system – as a specific limit set by state law. The subject came up at a July 12 meeting of the state Watrer Management Board, when member said they were unaware of any other state with a similar law in place.

A plan to allow for diversion of excess water from the basins of the Platte River to the Republican River in Nebraska reached a rough agreement on July 13 with a favorable vote by the board of the Lower Republican Natural Resources District.

The seemingly unlikely legal hammer of eminent domain has become the weapon of choice for low-population Inyo County as it seeks to reclaim water from Los Angeles.

Rebecca Mitchell, who played an instrumental role in production of Colorado’s Water Plan, has been named the new director of the Colorado Water Conservation Board.