DTW Publications

Adjudicating Groundwater:
A Judge’s Guide to Understanding Groundwater and Modeling

Unique Resource for Groundwater “Judges”
Dividing the Waters offers this groundwater science bench book that cannot be matched by any other scientific or judicial publication.  Adjudicating Groundwater combines the expertise and experience of academic scientists (UC Davis/Stanford), federal scientists (U.S. Geological Survey), and judicial officers to create a resource that can fulfill the needs of judges tackling the most difficult groundwater conflicts.  This bench book explains both the fundamentals of groundwater science (hydrogeology) and groundwater modeling.  The bench book received peer review from scientists and judges, with oversight by the U.S. Geological Survey, making this book among the most reliable resources for judges with water cases.

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The bench book describes the kinds of water cases in which hydrologic models often appear, explains why the use of these models is often essential and how the models are constructed (including their data requirements), and reviews various means, both technical and legal, of assessing the models’ quality. The benchbook also reviews some of the literature on model building and testing, describes proposed guidelines on a number of the features of model construction and testing, and presents techniques for case management in the context of handling complex models. Finally, by way of illustration it recaps four cases in which models played a central role: the Arkansas River Compact altercation (Kansas v. Colorado); the Republican River Compact dispute (Kansas v. Nebraska and Colorado); a case from South Platte (In the Matter of the Ap­plication for Water rights of Park County Sportsmen’s Ranch, et al. v. Colorado State Engineer); and a case from the Rio Grande (Rules Governing New Withdrawals of Ground Water in Water Division 3).

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Water Science in the Courtroom: Board of Advisors

This publication reflects the new Dividing the Waters Board of Advisors’ first project to advise the Program. The Board of Advisors includes leading water law attorneys from across the country who advocate for Dividing the Waters within the water law community and advise the Program on issues identified by the Conveners. After a spirited discussion at its first meeting, the Board developed this set of recommendations on judicial management of water case science, use of scientific tools, and application of scientific uncertainty in judgments. It also recommended that Dividing the Waters continue its programs on science, focused on the fundamentals, judicial practice, and the questions judges need to ask scientists.

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Mitigating the Exercise of Water Rights and Water Use: A White Paper on Questions Judges May Consider

In recent years, the issue of water mitigation has arisen in many contexts — priority administration, interstate compact enforcement, fishery impacts, and the groundwater-surface water nexus. The Conveners of the <em>Dividing the Waters</em> Program requested that the Program’s Board of Advisors advise the judges in the Program regarding how to assess proposals to provide mitigation for the effects from the exercise of water rights. The Conveners thought that the Board of Advisors, coming from different states, would be able to advise the Program’s judicial officers as to common issues and standards for review of mitigation plans. The Board convened at The National Judicial College in February 2015 to discuss mitigation and arrived with papers reflecting the mitigation practices or developments in several western states. The Board ultimately decided to offer this overview paper of mitigation issues as a vehicle for identifying the questions that judges or other adjudicators may wish to consider in assessing the sufficiency of a proposed mitigation plan.

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Water and Growing Cities: A Survey of Western State Water Requirements for Urban Development

To explore how western states are addressing the allocation of tightening fresh water supplies amidst growth, the Board of Advisors and additional authors of this article consider how each of eleven states has addressed the relationship between land development and water resources, whether local jurisdictions are required to consider water resources when planning for growth and reviewing project approvals, or whether the state water agencies must address land use planning. The authors’ goal is to provide the 2017 Dividing the Waters General Conference a summary of each state’s approach sufficient for the judges to discuss commonalities and differences.

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