The Future of Water Law

Christal Keegan, Esq.
An Interview with Justice Ronald B. Robie of the California Court of Appeal, Third Appellate District, and Colorado Supreme Court Justice Gregory J. Hobbs, Jr.

Before we began the interview, Justices Robie and Hobbs made the following caveats:

Hobbs: It’s important to begin with these general caveats. These water law systems are a prerogative of the state. Congress didn’t create a national water law for the purposes of the settlements in the dry areas of the western states and territories since that’s the dry area Congress deferred to the states and territories to determine their water law. I would note the interruptions to state water law: interstate stream apportionment through compacts and the equitable apportionment jurisdiction of the U.S. Supreme Court; the Federal Reserved Water Rights Doctrine (including a specialty of that doctrine — the Native American Water Rights); and then the panoply of federal environmental laws, specifically the Endangered Species Act of 1973 and the Federal Water Pollution Control Act Amendments of 1972 (as amended in 1977, Clean Water Act).

Robie: I would add that in California v. U.S., 438 US 645 (1978), the Supreme Court finally ruled that under the Reclamation Act (Natural Reclamation Act of 1902) federal water projects have to comply with state law. The opinion said state law controls unless there is a federal law to the contrary.

Hobbs: Another general caveat that is important because instream flows continues to be a very contemporary issue is: U.S. v. New Mexico, 438 US 696 (1978), the federal government’s claim for instream flow rights based on the Department of Agriculture Organic Act of 1944 and the Multiple Use Act of 1960. Generally speaking, in that case, the establishment of instream flow rights for the national forests was overruled, holding that there is deference to state law and the general purposes of the national forest reservations were preservation of timber and water for the settlers of the west.

Q: What do you think is the most important change in water law or water management that you have seen since the 1990s?

Hobbs: I think the most important change in water law has been the over-appropriated surface water and ground water that has to do with the resource itself. So water law is driven by water availability for the various uses that state and federal law allow to be formulated in the water rights regime. For instance, in Colorado and in most western states, water is held in general and public ownership subject to the ability of the states to settle, allocate, assign, and use rights to the use of the public’s water resources. We are talking about a limited resource based on what Mother Nature provides and within that the interstate water compacts which divide water between and among states that, share an interstate stream system. A state gets so much water to deal with particularly with regard to the consumptive use it can make. That can be its interstate compact share or that the U.S. Supreme Court has issued a decision that assigns equitable rights between upstream/downstream states. That would limit a state’s water budget along with the availability of water in the natural cycle. Mother Nature and legal arrangements determine how much water is available for all these uses, including recreational, instream, agriculture, municipal, industrial and hydropower.

Robie: In California’s case, we’ve been over-appropriated for quite a while in part because we have a water rights system that has both riparian and appropriative rights. We think it’s over-appropriated because we don’t know the scope of all the water rights. The other thing is that many of our estimates were based on climate information that has proved to be unreliable, such as the flow estimates, which were used for the Colorado River Compact. It was always thought there was much more water in the Colorado River than the long term has shown.

I think the most important change in water management has been the concern for instream uses, fisheries and environmental factors. The instream uses, including fisheries uses, have not been recognized until relatively recently. Most of California’s water rights were established without regard to fisheries. The best example is in the late ’50s when Friant Dam was built. It cut off the San Joaquin River and completely cut off all downstream uses including fisheries. That is a very startling way to look at things compared to how we look at things today.

Hobbs: I would add to that the integration or non-integration of tributary ground water in conjunction with surface water. Many of our Dividing the Waters sessions in the past 20 years have been involved in environmental and fishery uses, increasingly with the interaction of the surface water resource and ground water resource where there is a hydraulic connection.

Robie: California is the exception to everything. In California we do not yet have real regulation of ground water, although the Legislature in 2014 enacted a law, which will provide regulation in the future. Right now during the drought this lack of regulation is very dramatic. There is a raging debate over whether agriculture should be coming up to the table for all the cuts being proposed. In the San Joaquin valley when one’s surface water rights are not available, one just digs a well. It’s very much like the Wild West in California.

Q: What has led to this change — the law, facts on the ground (or in the stream), society’s expectations or litigation?

Hobbs: We had very good water years in the late 1990s. Then we started a cycle of prolonged drought around 1999 and up to 2015. This period of dramatic drought with the uncertain overlay of climate change that may alter the precipitation and all important snow storage patterns has challenged the water law systems to take into account what had not really been planned upon in the past.

Robie: The Colorado River is certainly an example of that.

Hobbs: It used to be thought that 16.5 million acre-feet was a good annual average for Colorado River virgin flow at Lee Ferry, the dividing line between the Upper and Lower Divisions under the 1922 Colorado River Compact. The Upper Division would have 7.5 million acre-feet per year as would the Lower Division, and 1.5 million acre-feet per year was for Mexico. Now, the tree ring studies and actual monitoring data based on this era of 15 years of drought is showing it could be anywhere from 13.3 million acre-feet to 14.7 total. That’s quite a range and quite a shortage because in prolonged drought the system’s ability to deliver the kind of water the states assumed were available. We’ve had this very important cycle involving the seven Colorado River Basin states (“Upper Basin” states: Colorado, New Mexico, Utah, Wyoming and “Lower Basin” states: Arizona, California, Nevada) first deciding toward the end of the 20th century and early 21st century how to divide up the surplus. By 2007, it became clear what we were really talking about was how to take shortages.

Robie: California is the best example because it has always had surplus available to it and now it doesn’t. One factor is the enormous growth of the U.S. in the last 30 years. For example, it was not thought in the 1960s that Nevada would need its Colorado River supply because it was just a “sleepy little place.”

Hobbs: Nevada has its 300,000 acre-feet it’s entitled to and California has cut back to 4 million acre-feet it is entitled to from a 5.3 million acre-feet actual usage figure.

Robie: And at the same time California has been growing. But the most dramatic growth is in Nevada.

Hobbs: In 1971, Colorado’s population was 2 million, it’s now 5.5 million and we are expected to double our population by the year 2050. We have a tremendous increase in population with the same basic water supply that the ancestral Puebloan and Hohokam had to cope with.

Robie: The public will respond that agriculture uses most of the water. True, but in California where we have the large concentrations of our population south of the Tehachapi Mountains, it’s not easy to transfer water from agricultural use to urban use even though we have extensive aqueduct systems in the state. It’s only through conservation that they have been able to survive in Southern California. Southern California doesn’t have any more water than it had 25 years ago.

Hobbs: All the studies have shown that the growth has been absorbed by conservation.

Robie: In the Los Angeles Basin it’s incredible. The largest water use in Southern California is still agriculture along the Colorado River in the desert area. There is a transfer of some of that excess water to the San Diego/Los Angeles area of 200,000 acre-feet but it’s not easy to put together those kinds of transfers. The system does not permit the water to move back and forth between agriculture and urban use. When you look at the theory it doesn’t always work. (Here is a specific example of transfer problems between the Metropolitan Water District of Southern California and a group of Sacramento valley rice farmers.)

Hobbs: In Colorado we have a very viable market system in water rights, because since 1881 Colorado has had courts adjudicate the water rights. There is a system of ranking and priority. We have a system of seven water courts divided among major river basins within Colorado. We have a well-defined system for changes of water rights. Generally the changes of water rights occur from agriculture to municipal or environment. Our water courts are assigned the task of making sure a water diversion is actually quantified in a number of acre-feet consumed based on a historical representative period of time the water right operated for agriculture. You then take that number of acre-feet (hypothetically, let’s say 100 acre-feet) that’s been consumed. That’s the burden that has been placed historically on the public’s water resources. That amount can be transferred to another use retaining the senior priority of the agriculture water right, with the further caveat that any change in point of diversion, place of use, type of use or diminution of return flow must be accounted for to protect other water rights. You may lose a portion of the consumptive use figure to protect against injury to other water rights.

Because we have this system, we have had market transfers on a voluntary basis of water rights since 1890 in Colorado. They have increased dramatically as these cities along the Front Range of Colorado from Fort Collins to Pueblo have grown and annexed what was formally agricultural land. Generally the municipalities as a condition of annexation required that the agricultural water be brought along by the developer into the city’s water supply as the city grew. These municipalities generally have former senior rights for irrigation, which they have now incorporated into their system. Colorado used to have approximately 93 percent of its deliveries for agriculture and the number today would be about 86 percent. Even though we are over-appropriated we have been able to grow in population and commerce by agriculture water transfer through the market system.

Robie: In California we have the water market too. We also have an advantage in that we have a plumbing system. We have pipes and canals going from Northern California all the way to Southern California. We have an aqueduct coming from Colorado all the way to Los Angeles. We have the facilities to transfer water. With that said, in California, ground water rights are generally not adjudicated so you can’t transfer them because you don’t have on paper the knowledge of what your right really is. That’s really one of the failings of transferring water rights. You can transfer surface rights but they are subject to a lot of difficulties because of the North/South divide in California. During the drought, we were moving some water from Northern California down into the valley and other places. But, it gets very emotional and fraught with extraneous factors that limit the amount of transfers we have. It’s partly because our system is not as well structured as in Colorado.

Hobbs: We’ve talked about the water for the environment, surface water, ground water, and changes in water rights. Another important change in water law are augmentation plans – other state’s call them mitigation plans. If you were a junior water right and were unable to divert because sufficient water isn’t available to satisfy all rights, if you supply an amount of water that protects senior rights from injury, you can then divert out of priority by making available to the state water officials the sufficient water that will be available for the seniors that otherwise would not be able to have that water because of it being used by a surface water or ground water diversion. In California, the physical solution has always been a huge part of California water management which we have admired.

Robie: The physical solution is what’s made it work to the extent it has worked.

Hobbs: The physical solution is providing water that takes pressure off the conflict between senior and junior water users.

Robie: Physical solutions were recognized many years ago in California. It’s incorporated in our law. In California, when you look at the largest single use of water in the Imperial Valley and the Coachella Valley, those agricultural areas are not willingly transferring water to willing buyers in Los Angeles. In fact, we just completed 12 years of litigation over the 200,000 acre-foot transfer from an agreement made in 2003. The challengers to that transfer have just stipulated to dismissing their appeal after 12 years. The transfers are done in California with mechanisms such as wheeling laws that govern how much you have to pay to use someone’s aqueduct to get your water somewhere. Again, often it’s easier in theory than it is in practice.

Hobbs: I think we need to put one more concept on the table: The Public Trust Doctrine.

Robie: California has two things that distinguishes it somewhat from other states. One is our constitutional provision (Article X, section 2) concerning reasonable beneficial use of water which dates back to 1928. That provision says you can only use water in a reasonable manner for a reasonable purpose. The extreme example was in the San Joaquin Valley people were pumping water into gopher holes to kill gophers (Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 3 Cal.2d 489 [1935]). The Supreme Court determined that was not a reasonable use of water even though they may have had a water right to use it. California’s constitutional provision is very powerful because if someone is wasting water you can cut back the amount of water he or she is using. The courts ultimately decide what is waste and what isn’t. A similar doctrine is the Public Trust Doctrine which was established in 1983 by court decision (National Audubon Society v. Superior Court, 33 Cal.App.3d 419 [1983]).

The Public Trust Doctrine says water rights are defeasible, meaning even though you have a vested right dating way back to 1914, for example, the public trust will permit it to be modified to implement values which are recognized by the trust. This includes fish and wildlife. For that reason, most people today get water rights that are not as solid as they were before the Public Trust. The best example of changes in water rights were those of Los Angeles. The city obtained a water right in 1940. In 1974 it got a license for it under the traditional system because the city diverted water from the Mono Lake Basin and used it. Therefore it ripened into a license and as long as the city continued to use it, it was a vested water right. The court in California applied the Public Trust Doctrine and limited the amount they could take. As a result, more water flowed into Mono Lake. The Los Angeles water right was actually reduced by court order implementing the Public Trust Doctrine. That is foreign to the practice in many jurisdictions.

Hobbs: Colorado does not follow the Public Trust Doctrine because our Constitution of 1876 solely mentions the Prior Appropriation Doctrine. Our courts have interpreted this for over 140 years to mean that when you get a court decree for a water right you have to demonstrate the following four things: 1) identify the place of diversion, 2) the amount of diversion, 3) the type of use, and 4) the place of use. When you have a court decree you can use your water right for an actual beneficial use, you can’t just divert. If you need it, you can divert according to your decree. Our state water officials and our state engineers for these seven water divisions including our local groundwater commissioners must enforce the decrees of the court in order of decreed priority. We do not recognize that courts or the state government have the authority to require a water right user in priority under the decree to use or diminish what its entitled to under the decree. This is a fundamental difference.

Robie: In 1974, I was a member of the State Water Resources Control Board, which issues water rights in California. The Board operates like the state engineer in other states. As a member of the Board, one of our agenda items included issuing that license to Los Angeles. When you obtain a permit it gives you the right to divert the water according to same criteria Justice Hobbs mentioned: 1) identify the place of diversion, 2) the amount of diversion, 3) the type of use, and 4) the place of use. When you put the water to beneficial use you apply for a license in California which is vested. I was on the Board and I had some questions about the diversion. We were advised to vote to issue the license because it was a ministerial act. We had no alternative. If we didn’t like what they were doing we couldn’t do anything about it because they were following the law. Some 20 years later that water right was modified because of the application of the Public Trust Doctrine to it. The trust can result in de-vesting vested rights to some extent. It also provides that the court or the Board has continuing jurisdiction to modify water rights. In California this has been done in a number of occasions. Recent court decisions have affirmed the authority of the state under both the Public Trust and the Constitutional Reasonable Use provisions. Under these provisions, California has great flexibility in some respects but it also has large gaps in knowing the extent of water rights. Because ground water rights are largely unknown, the great flexibility provided by the law is hard to implement.

Hobbs: These are important points because this is the prerogatives of the states. The states determine if their water law systems are subject to federal overlay, which is considerable and very influential. But what Justice Robie just described is that it makes the ability of water planners and managers more difficult when they are operating in this Public Trust hybrid riparian prior appropriation overlay that California has.

Robie: In a fairly recent case, the U.S. Supreme Court has dealt with the Public Trust and has said it is a state doctrine. The Court affirmed that it is a creature of the state to the extent there is one. There is a federal Public Trust Doctrine but it is entirely different. As to navigable waters which are within the jurisdiction of the U.S., years and years ago the Supreme Court said there is a trust. For example, the Corps of Engineers issues permits in the ocean and in Lake Tahoe. But the California Public Trust is a state doctrine. See PPL Montana, LLC v. Montana, 132 S.Ct. 1215, 182 L.Ed.2d 77 (2012).

Hobbs: Some parties, particularly environmental parties, had argued that there is a federal Public Trust Doctrine. The Supreme Court denied that argument and said there is a navigable waters right doctrine that is still viable for traditional interstate commerce based on the Commerce Clause. To apply the state Public Trust Doctrine, where a state can determine internally in its streams that are not necessarily navigable, is a state prerogative.

Robie: An unanswered question in California is whether the Public Trust Doctrine applies to ground water. But at the moment it is a surface water doctrine.

Hobbs: California allows the overlying riparian land owner to pump into the aquifer to go deeper into the aquifer to get at groundwater supply in a scarce year. The overlay of the Public Trust Doctrine if it exists on ground water would severely curtail the riparian existing, let alone future use of the ground water.

Robie: If it did exist, there are people who would like to use it for that purpose. The California legislature passed a law in 2014 which attempts to control not only overdraft but subsidence and over pumping that adversely affects vegetation on the surface. There are many environmental implications of ground water pumping that could be reached only if ground water were subject to the Public Trust Doctrine. But it has not reached that yet.

Hobbs: Yet, this new legislation in California sets a sustainability goal for the future to try to get a handle aquifer-by-aquifer about what a sustainable supply of ground water might be to be preserved and made available for use.

Robie: Right, a lot of basins in California have a long term overdraft which means over the long term more water is coming out than what’s going back in. Eventually, it will end up unusable. In the past, we’ve had extremely wet periods in California like in the 1940’s. Some ground water basins that were in bad shape then recovered. Because the hydrologic cycle of water patterns go up and down you get in a period where there’s more rain and more snow and you think everything’s fine. Then you get years like the current drought and everyone is terribly worried about what’s occurring. The problem is some effects of over pumping are permanent, like subsidence when the land just sinks. You just can’t get that back.

Hobbs: Recharge of aquifers by snow melt and rain is very important in the western states.

Robie: And even artificially where you put water into gravel beds and let it flow back in.

Hobbs: We do that in Colorado and in wet times you can recharge your aquifer — artificially, naturally or a combination of both.

Robie: Urban growth has caused all sorts of problems because water that used to percolate from the rain now hits pavement and goes other places. We greatly reduce natural recharge when you have urbanization.

Hobbs: One of the challenges are these intersections of land use, water supply, recharge, the ability to optimize the underground storage ground capacity and also to store surface water that would otherwise flow down to other states or to the sea.

Robie: We have a lot of recharge programs in California but you have to have some control. If you put the water underground there is no guarantee you’ll get it back in some areas.

Hobbs: Your law like our law recognizes that you can get a water right in water you inject or recharge artificially.

Robie: Yes. We have a law that says if you take surface water in lieu of pumping you get a credit so it’s the same thing in effect.

Hobbs: The Endangered Species Act is a very severe overlay in western water rights no matter what state you are in. In 1973 when Colorado adopted its instream flow law, it recognized that it had to be proactive vis-a-vis the federal government and have a system of instream flows. Colorado decided to allow a state agency, in this case the Colorado Water Conservation Board, to appropriate and enforce in order of priority water to preserve the environment. We have 9,000 miles of Colorado streams that are protected by instream flow water rights, which are enforceable just like all other kinds of water rights. The environmentalists and the federal government kept saying those are junior and, at the best, the priority they have is 1973 or even more junior depending on when the Water Conservation Board appropriates them followed by a decree of the water court entering the appropriation in a decree format. In 1986 the Colorado legislature has allowed the transfer or lease of agricultural water to improve the environment, and to augment these junior instream flow rights.

We have institutionalized a mechanism still criticized by some federal and environmental interests that it’s not adequate enough. Some prefer the Public Trust Doctrine over this system but that’s Colorado’s system. In Colorado we had to deal with the Endangered Species Act for the Colorado River fishes in the Upper Colorado River Basin and also on the South Platte River system because of the whooping crane, sandhill plover and pallid sturgeon. We had to come up with umbrella recovery plans that we put in place to make sure we were not triggering case-by-case endangered species review that might then go after existing operation of water rights. As a result, in the early 1980’s Colorado became active in getting these recovery plans going to protect its water right systems. That’s been an incredible alliance of other states. For instance, the Upper Basin Colorado River plan involves: Wyoming, New Mexico, Utah and Colorado and environmental organizations.

Robie: Considering the traditional nature of Colorado water rights and in the somewhat rigid way they have historically been developed, this system they have for instream flows is very creative. I personally admire the way they’ve done it. In California, the Endangered Species Act is everywhere. Because two-thirds of the diversions are in the delta — which is where the Sacramento and San Joaquin rivers come together and then flow through the delta and what’s left out to sea — those are all interstate streams and are all subject to the Endangered Species Act, including everybody’s water rights on that stream. If you ask anyone in California where the real environmental problem in California is water wise, they would all say the delta and it’s been that way for the last 50 years. We can’t do what Colorado does. Also, one of the goals of the Endangered Species Act is to provide minimum flows for the fish in the delta which can have a big effect on federal and state water rights. We do have other Endangered Species impacts in other parts of the state like Mono Lake.

Hobbs: The result of that however is that federal court decisions often run the river.

Q: In the judicial branch, who do you think has been the most important factor in change — the U.S. Supreme Court, state supreme courts, or federal or state trial judges?

Robie: When I talked about the Public Trust Doctrine that was the California Supreme Court. When you talk about the Endangered Species Act that’s the federal courts – both the district courts and the courts of appeals. The two recent decisions in the last year that affected the smelt and the salmon in the delta were both Endangered Species Act cases in which the Ninth Circuit Court of Appeals upheld the biological opinions which limited the pumping by state and federal projects (San Luis & Delta-Mendota Water Authority v. Locke, 776 F.3d 971 (9th Cir. 2014); San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 [9th Cir. 2014]). In that litigation (which is completed), those opinions were opposed. The positions in court were the environmentalists on one side and the state and federal government operators on the other. Application of the Endangered Species Act in the delta is very powerful. You see people grumbling and asking to change the law in Washington but it’s not a simple issue. Recently California has had a couple of court of appeal decisions in the last year that have affirmed the authority of the state to modify water rights in order to make them more efficient and under our constitutional provisions and the public trust (Millview County Water District v. State Water Resources Control Board, 229 Cal.App.4th 879 [2014]; Light v. State Water Resources Control Board, 226 Cal.App.4th 1463 [2014]).

Q: What do you expect the most important change that water judges in the next quarter century will encounter?

Robie: Climate change is going to disrupt the order of things when we learn more about it.

Hobbs: That is very important because the timing of agriculture wanting earlier diversions for example may be dramatic. For instance, let’s say in Colorado, agricultural diversion is usually between April and October. Under the warming situation, March might be the time where the fields are ready and they want to expand their traditional irrigation season scenario. That runs into the problem that municipalities have appropriated and they may have spoken for the water like early snow melt that’s available between the close of irrigation season between November 1 and April 1. The municipalities may have rights that prevent the agricultural users from starting their growing season earlier. Then you have the problem of hotter temperatures and more evaporation, even in the traditional agricultural scenario.

Robie: Many water rights take into account that the amount of evapotranspiration is based certain assumptions and those assumptions may change. In California they are talking about more water through precipitation rather than snow pack; different times of year but less snow melt water release and more precipitation. You have to be able to catch it and store it. Whether we can do so has not been determined.

Hobbs: Sure. Catch it, recharge it in to the aquifers or store it in surface storage or a combination of both. But getting a permit to build a new storage facility is very difficult.

Robie: It’s interesting California has approved a big water bond issue and one of the features of it is the potential for building more storage facilities. The question is how effective they can be given the current situation.

Hobbs: The Clean Water Act overlay where section 404 requires on private land as well as public land a dredge and fill permit from the Army Corps of Engineers to be able to build any significant storage or diversion feature. That kicks in the National Environmental Policy Act and the Endangered Species Act. Another very notable thing in the past 25 years has been the slowdown in being able to get new storage and diversion projects built because of the length of time it takes to get these 404 permits and to do the National Environmental Policy Act analysis.

Robie: It’s a fact of life. I mentioned earlier the 12 year fight over the Colorado River water transfer and there are going to be changes in the California delta. There are already 10 lawsuits and hundreds of lawyers involved. There’s always litigation and not just from environmentalists but from people who feel they will be adversely affected by new water projects. Water law litigation makes everything more difficult to do.

Hobbs: One enduring trend here, and we are all watching California, is determining the extent and limits of conservation.

Robie: California’s Water Board has said we haven’t conserved enough. We are going to start seeing dead lawns. It may mean a change. In Arizona I understand they have painted front lawns and things like that. We have been laissez faire about irrigation in California’s urban areas.

Hobbs: Landscaping is going to change dramatically. In Colorado, we have outlawed any of the kinds of covenants that require lawns. You can’t have a new covenant where some of these developments would require lawns. Those are outlawed now although we haven’t declared that retroactive. It’s obvious with climate change and getting new water projects that landscaping is going to dramatically change because about half of the water supply for municipal use in Colorado is on landscaping.

Robie: It’s a very high percentage. In San Francisco where everyone has postage stamp lawns that’s not true but in Sacramento and other more suburban areas it is definitely true. One of the things the Governor has done in his Executive Order as part of the drought, was to issue an order that you can’t prevent someone from having their lawn go dry or brown. Homeowner’s Associations say you have to make the neighborhood look pretty, you can’t have a brown lawn. Well, now you can.

Hobbs: That’s just the fact of life in the west. We’re in the desert and semi-desert. We’ve lived as if we weren’t. Along the Front Range of Colorado we’ve looked like a mid-western or eastern state with lush lawns and tree canopies that weren’t here originally. We were the high plains along the Front Range eastern slope of Colorado. The one-third that’s the high plains there was just cotton woods and sage brush.

Robie: The entire south coastal plain of California where the vast majority of people live is a semi-dessert. People forget that. We have palm trees all over Los Angeles.

Hobbs: I love it. That’s the symbol of Hollywood.

Robie: Right!

Keegan: And then there’s Las Vegas.

Hobbs: I try to correct people when they say Nevada is stealing our water, which first of all they aren’t. They have the smallest allocation of all the water. They also have bought up their lawns long time ago. These fountains that have the illusion of plenty are of recycled water and have extreme commercial value because they are attracting people to their industries.

Keegan: Right — over 40 million tourists a year visit Vegas.

Hobbs: So that’s incredibly valuable water and they are conserving it. They are into their third or fourth drilling down into Lake Mead to make sure they can go down as far as they can to take their allocation of the compact water.

Robie: It’s interesting because that’s where the big growth has been — in the Lower Basin. Of course Arizona and California fought for years. California tried to prevent Arizona from using its Colorado River water and lost.

Hobbs: Arizona has been banking their Central Arizona Project water like crazy by recharging of the aquifers through unlined recharge pits. They have been smart about that.

Robie: They have basins that don’t have enough recharge and they can’t run dry.

Hobbs: One of the other profound things that has happened is a cooperation among the seven Colorado River Basin states. People don’t think about litigation as an alternative, they think about cooperation. This is extended to Mexico based on the Tijuana earthquake which occurred in the early 21st century. Their delivery systems were disrupted and now we have storage of Mexican water in Lake Mead. Who would have thought?

Robie: It’s just amazing. Peace on the Colorado is the most important factor.

Hobbs: Let’s talk about some of the other states. We don’t want this to be an exclusive California and Colorado discussion although we are paradigm states in many ways. The Colorado River of course connects the two big “Cs” — the headwaters Colorado and the downstream California. But we have Washington and Oregon that have a wet side and a dry side; Idaho is a very interesting combination of mountain, high plains, arid areas and humid areas; the Rocky Mountain states extending from Montana, Wyoming, Idaho, Utah, Colorado, New Mexico can be identified as sharing the same kind of problem – rocky mountain arid climate, high dessert mountains that have good watersheds and highly variable years.

Q: How has Dividing the Waters changed since it was founded more than 20 years ago?

Robie: When I first learned about Dividing the Waters we were focused on the traditional stream adjudications of the West. California doesn’t have stream adjudications. We had some in the early days of our state until the 1940s. Our judges mostly deal with these individual issues. So the trial courts are more important and we brought in federal judges to Dividing the Waters and other states that were removed from the West. Dividing the Waters has taken a much broader look at water than it did originally.

Hobbs: I came on board with Dividing the Waters in 1998 and we were focusing on adjudicating water rights within the McCarran Amendment of 1952 and that is identifying those four attributes of the water right, and getting them in court decrees. Colorado has adjudicated 170,000 water rights, Idaho has adjudicated 155,000 water rights (Snake River Adjudication), New Mexico has had some streams adjudicated or is in the process of that, and Nevada has done some.

Robie: The traditional western adjudication is still going on. It’s not something that has gone away. In California, if we ever did ground water adjudications we would be really busy. We would be back where we were 100 years ago.

Hobbs: Most of the water decisions in the western states are made by administrative agencies, outside of Colorado. We are unique in that we have an on-going state court system. Most of the action has not involved federal court, its state court. We have successfully adjudicated the tribal rights of the Mountain Utes and Southern Utes through a settlement, national parks and monuments, and federal facilities. All these federal uses are integrated into our state water adjudication administration system. The main action is in Colorado’s seven water courts and the Colorado Supreme Court because our court of appeals doesn’t have jurisdiction over water cases; they go directly to the Colorado Supreme Court.

Robie: Colorado is really the exception in having water courts. We have the State Water Resources Control Board which since 1914 has been doing what the Colorado courts do; they have been issuing permits and licenses which is the same as a decree from a water court. That’s as to surface water rights only. That’s why Dividing the Waters involves these administrative decision makers because we only review some of their decisions in the courts.

Hobbs: Washington, Oregon, and Wyoming are permit states.

Robie: Two of our co-conveners, Susan Joseph-Taylor from Nevada and Kathy Mix (retired) from Washington, are administrative agency persons. The judicial function is spread around and the water board people are doing the very same thing that the courts are doing in some states. That’s why the organization covers more than just judges per se.

Hobbs: We’ve openly embraced administrative hearing officers of state agencies as quasi-judicial decision makers. That’s important because we used to just have the traditional water judge, state or federal, that ended up with a water case or in Colorado the water referees that are part of the formal system. Along with us, special masters appointed by the U.S. Court in disputes regarding violations of compact or in equitable apportionment cases. We had real litigation judges having to do with courts — state, federal, and special masters — and then we have the growth of the importance of these administrative judicial decision makers.

Robie: In California, the water board makes the big decisions. But we have a different role. The water board is where you have the expert witnesses come in, you have lengthy hearings, and courts review their decisions for abuse of discretion. Our review is limited to the record. The whole issue of expert testimony doesn’t really involve us except to the extent that it arises on the appeal from the administrative decision through writs of mandate, which are a very limited form of review in California.

Hobbs: There are number of western states that follow this pattern of judicial deference to administrative agency water rights decision makers.

Hobbs: One of the great things about Dividing the Waters is that these conferences that we have every 12-18 months have taken us around the entire west and southwest. The kind of things that we touch on during the conferences include: judges and hearing officers on the ground looking at local water systems, watersheds, understanding and learning about the science, water management, land use, water quality, environmental, and endangered species. Dividing the Waters has been the only and most unique aspect of education for generations of water decisions makers about how the states, feds, and these structures operate and include visits with scientists and faculty members from distinguished law schools and federal masters. It’s been an incredible resource to judges in states that otherwise couldn’t afford to have such judicial education and foundations have been extremely important — Hewlett, Bechtel, and some others — in making this possible.

Robie: I couldn’t say it better.

Hobbs: We would be sitting in solitary pods trying to do these things and not have the benefit of learning what the tools are that judges or hearing officers absolutely need when they hear one of these complex cases.

Hobbs: From my standpoint, Dividing the Waters has been so essential to the 19 years I have been doing water judging for the Colorado Supreme Court. We have shared experiences that should be made available. We do things differently but we have the same problems — serving people, the environment, farming, keeping the agricultural product viable — and there’s no doubt about it that we depend upon the California agriculture in the Colorado winter because we have one growing season.

Christal Keegan, Esq., is a program attorney for The National Judicial College.
Questions developed by Alf W. Brandt, executive director of
Dividing the Waters.

2016-10-24T14:43:09+00:00