Indigenous communities, groundwater opportunities

American Association for the Advancement of Science (AAAS) | August 3rd, 2018

Instead of managing fresh water as one integrated resource, laws frequently treat groundwater separately from more visible, monitored, and managed surface waters. One und

Instead of managing fresh water as one integrated resource, laws frequently treat groundwater separately from more visible, monitored, and managed surface waters. One under-recognized consequence of such legal fragmentation has been uncertainty about whether water rights for indigenous communities, which have been addressed in many countries to varying degrees for surface waters, apply to groundwater. In late 2017, the U.S. Supreme Court left standing a lower court ruling endorsing priority groundwater rights for Native American tribes by denying an appeal in Agua Caliente Band v. Coachella Valley Water District. This ruling establishes a new standard throughout nine western states within the lower court's jurisdiction and establishes persuasive, although nonbinding, legal precedent for the rest of the United States. To evaluate the ruling's broader potential impacts, we present new data cataloging existing Native American water rights and mapping unresolved tribal groundwater claims across the western United States. No court considered such a regional or national quantitative catalog or map. Drawing lessons from past U.S. experience, we then discuss how tribal rights may offer new opportunities to achieve sustainable groundwater management for society at large, with implications beyond the United States. *The full text of this paper is behind a Science Magazine pay wall at a single-issue cost of $15. It should be available for free through research portals at universities, and may be accessible through public libraries with Science Magazine subscriptions. A free summary is contained by the August 3, 2018 Stanford News report "Stanford study reveals the changing scope of Native American groundwater rights – and opportunities for better freshwater management."    

Information Pertaining to Water Rights in California

California State Water Resources Control Board (SWRCB) | January 1st, 2000

A handbook on water rights produced by the State Water Resources Control Board, dated January 2000. TABLE OF CONTENTS Introduction General Information Pertaini

A handbook on water rights produced by the State Water Resources Control Board, dated January 2000. TABLE OF CONTENTS Introduction General Information Pertaining to Water Rights Appropriative Rights Initiated Prior to December 19, 1914 Appropriative Rights Initiated Subsequent to December 19, 1914 Loss of Appropriative Rights Riparian Rights Prescription Vested Appropriative and Riparian Rights Not Affected by Filing an Application Disputes Over the Use of Water Public Trust Determination of Existing Rights Appropriation of Underground Water Spring Water No Assistance Rendered in Securing Right of Access to Point of Diversion or Right-of-Way Patents and Homesteads Supervision Over Dams Provision of Fish and Game Code Statements of Water Diversions and Use Stockpond Rights General Information Pertaining To Applications For Permits To Appropriate Unappropriated Water Who Should File An Application Who Should Not File An Application Purpose of Filing When to File Unappropriated Water and Responsibilities of Permittees Outline of Essential Steps Preparation of Applications Changes In Ownership Appendix - Table of Equivalents

Introducing Time-Limited Permits to California’s Riparianism

University of California, Davis (UC Davis) | December 1st, 2023

Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can two wrongs make it right?

Harvard University | December 19th, 2015

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, whi

Professor Joseph Sax’s environmental law scholarship has inspired generations of lawyers and legal scholars, including my very first law review publication in 1987, which questioned the way that some public interest advocates were enlisting Sax’s seminal work on the public trust doctrine to champion environmentalist causes. In our last conversation not long before his passing, Joe asked me whether I still believed now what I wrote in 1987 with the benefit of almost three decades of hindsight. This essay expands on the answer I gave Joe that evening. The essay first acknowledges the significant ways in which I clearly fell short in anticipating trends in environmental law, and for that reason, I agree that my original thesis warrants revision—especially with regard to the role of the public trust doctrine as a viable basis for defeating regulatory takings challenges. Next, the Essay discusses how, by contrast, I would not change my thesis in other respects and why, for that reason, I question the efficacy of relying on atmospheric trust doctrine theories in litigation to address the pressing issue of global climate change. The Essay is especially critical of atmospheric trust doctrine advocacy that relies on unduly harsh and demeaning criticism of existing environmental law and the career public servants who strive for its effective implementation.

Klamath Basin Settlement Agreements

Congressional Research Service (CRS) | October 21st, 2015

The Klamath River Basin on the California-Oregon border is a focal point for local and national discussions on water allocation and species protection. Previously, water

The Klamath River Basin on the California-Oregon border is a focal point for local and national discussions on water allocation and species protection. Previously, water and species management issues have exacerbated competition and generated conflict among several interests—farmers; Indian tribes; commercial and sport fishermen; federal water project and wildlife refuge managers; environmental groups; hydropower facility operators; and state, local, and tribal governments. Drought conditions and a call for water by senior water rights holders in 2013 have again brought these issues to the forefront. In 2010, the Secretary of the Interior and the governors of Oregon and California, along with multiple interest groups, announced the results of a multiyear negotiation process to resolve long-standing issues in the basin: two interrelated agreements, supported by the federal government and signed by the two states and numerous other parties. These agreements, known as the Klamath Basin Restoration Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement (KHSA), together aim to provide for water deliveries to irrigators and wildlife refuges, fish habitat restoration, and numerous other related actions. Generally, the KBRA provides for actions intended to restore Klamath fisheries and for assurances for water deliveries to wildlife refuges and federal project irrigators under certain circumstances, among other things. The KHSA lays out a process that could lead to the removal of four privately owned dams on the Klamath River. This dam removal would be one of the largest and most complex projects of its kind ever undertaken. Some parts of the Klamath agreements are being carried out under existing authorities. Studies to inform a determination on dam removal under the KHSA by the Secretary of the Interior are complete, and some restoration actions have been initiated. However, congressional authorization is required for the most significant components of the agreements to be implemented. The KBRA and KHSA did not address all outstanding issues in the basin. A water rights adjudication by the state of Oregon (in progress since the 1970s) is ongoing. In 2013, the adjudication reaffirmed “time immemorial” tribal water rights in the upper part of the Klamath Basin, confirming that tribal water rights are senior to those of other water rights holders. This resulted in a “call” on water rights (i.e., notice by senior water rights holders that their demands exceed available flows), and led to reductions to water supplies for some junior users during the low water year of 2013. To resolve these issues and prevent such a scenario from occurring again, a separate settlement agreement (the Upper Klamath Basin Settlement Agreement) was negotiated by stakeholders and finalized in April 2014. To be implemented, the agreement would need to be authorized along with the KBRA and KHSA. The KBRA and KHSA were originally set to expire in 2012 if no authorizing legislation was enacted, but they have since been extended (most recently through 2015). Parties may also withdraw individually from the agreements, and several parties initiated this process of withdrawal. In the 114th Congress, S. 133 would authorize the Klamath agreements, including a suite of new federal actions that have received support from disparate parties and are required for the agreements to be implemented. Previous legislation in the 113th Congress (S. 2379) was ordered to be reported out of the Senate Committee on Energy and Natural Resources on November 13, 2014.

Legal Aspects of Instream Water Uses in California: Background and Issues

California State Water Resources Control Board (SWRCB) | January 1st, 1978

This paper is part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. TABLE OF CONTEN

This paper is part of a series of background and issue papers prepared by the staff of the Governor's Commission to Review California Water Rights Law. TABLE OF CONTENTS I. Introduction II. The Nature of Property Rights III. State Water Resources Control Board Authority Related to Instream Uses IV.  Other Authority for the Protection and Enhancement of Instream Uses V. Methods of Protecting Instream Uses in Western States other than California VI.  Issues

Light v. State Water Resources Control Board

Court of Appeals of California, First Appellate District | July 11th, 2014

Local Groundwater Withdrawal Permitting Laws in the South?Western U.S.: California in Comparative Context

National Groundwater Association (NGWA) | December 13th, 2016

The Sustainable Groundwater Management Act (SGMA) aims to control, for the first time in California's history, the state's significant use and depletion of groundwa

The Sustainable Groundwater Management Act (SGMA) aims to control, for the first time in California's history, the state's significant use and depletion of groundwater. SGMA gives local agencies a high degree of discretion in relation to a new permitting power, but the discretion is a double-edged sword: agencies gain maximum flexibility to tailor their regime to local conditions, yet the statute provides no direction on appropriate components of a groundwater permitting regime. We introduce SGMA and the broader legislative context to its permitting power, and we explain the continuing common law context in which the legislation operates. This information is used as the foundation for a comparative legal analysis of fundamental elements of permitting regimes. We compare a selection of six other south-western permitting regimes established in legislation for areas recognized as requiring intensive management through permitting: “special permitting areas” (SPAs). We find that permitting regimes in south-western SPAs share a structure containing several almost universal elements, although the policy settings that apply to those elements vary widely. The established permitting regimes in the other south-western states' SPAs may inform Californian agencies seeking to use their new permitting power for the first time, as well as water agencies further afield, as to important components of a permitting regime, and the different policy settings that could apply to those components. Californian local agencies, and its Department of Water Resources, which is charged with providing local agencies technical advice, should have regard to these permitting possibilities.

Local Water Governance in the Delta

California State Water Resources Control Board (SWRCB) | April 8th, 2014

As the Sacramento San Joaquin Delta (Delta) evolved from an historic tidally-influenced marshland to a diverse agricultural region, local water governance structures also

As the Sacramento San Joaquin Delta (Delta) evolved from an historic tidally-influenced marshland to a diverse agricultural region, local water governance structures also evolved to meet the water needs of the area. The purpose of this report is to outline the development of these local water governance structures.

Los Angeles Waterkeeper v. State Water Resources Control Board

Second Appellate District, Court of Appeal of the State of California | February 27th, 2023