Water Rights

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Co-authored by Wes Miliband and guest-blogger Hayley K. Siltanen

The Ninth Circuit recently ruled that federal reserved water rights held by Indian tribes extend to groundwater underlying reservation lands. Determining the quantity of that groundwater, however, is reserved for another day.

In Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, the Ninth Circuit affirmed the district court’s declaration that the United States impliedly reserved appurtenant water sources, with “appurtenant” including groundwater, when it created the Aqua Caliente Band of Cahuilla Indians’ reservation in the Coachella Valley of California. The decision marks the first time that a federal appellate court has recognized groundwater rights as being included in federal reserved water rights.

Federal reserved rights are water rights that are appurtenant to land that has been withdrawn from the public domain by the federal government, and that are necessary to accomplish the federal purpose of the withdrawn (or “reserved”) land. In a landmark decision issued over 100 years ago, Winters v. United States, the U.S. Supreme Court held that federal reserved rights apply to Indian reservations. These rights, known as Winters rights, derive from the federal purpose of the reservation.  In the case of the Aqua Caliente Band of Cahuilla Indians (the “Tribe”), the Ninth Circuit explained that, “[w]ithout water, the underlying purpose—to establish a home and support an agrarian society—would be entirely defeated.”Continue Reading Tribes’ Federal Water Rights Include Groundwater—But How Much?

The recent wave of climate change legislation in California also included a new and not particularly well-known law aimed at curbing greenhouse gas (“GHG”) emissions associated with water use. SB 1425 will create a voluntary registry to track the water sector’s energy use and GHG emissions.

According to Senator Pavley, the author of SB 1425, “While some of the water-energy related climate pollution is already covered in the state’s cap-and-trade program (via the electricity generation sector), the state does not currently have a clear accounting of the total greenhouse gas emissions associated with the water system.”

SB 1425 requires CalEPA to oversee the development of a registry for GHG emissions that result from the “water-energy nexus” using the best-available data. Participation in the registry is voluntary and open to water agencies, large water consumers, businesses and others conducting business in the state.  SB 1425 provides that entities participating in the registry may qualify for GHG emission reduction incentives.
Continue Reading New Law Takes Aim at GHG Associated with California’s Water Sector

On August 22, the State Water Resources Control Board (“State Water Board”) held an informational meeting to answer questions and get the public up to speed on California’s new surface water diversion reporting requirements. As we previously reported, all surface water diverters will be required to report their diversions annually instead of every three years, as previously required.

Below are three things you need to know about the new requirements:

  1. The requirements will be phased in depending on how much you divert.

The measurement requirements of the regulation apply to all water right holders who divert more than 10 acre-feet of water per year and will be phased in between January 2017 and January 2018. Large diverters with a right to take 1,000 acre-feet of water or more per year must have a measuring device in place by January 1, 2017, while those with rights for 100 to 1,000 acre-feet have until July 1, 2017 and those with rights to take 10 to 100 acre-feet must comply by January 1, 2018.
Continue Reading Three Things You Need to Know About California’s New Surface Water Diversion Reporting Requirements

California has moved one step closer to implementing the Sustainable Groundwater Management Act (“SGMA”), California’s landmark groundwater legislation. On Wednesday, May 18, the California Water Commission adopted a set of regulations that will govern the creation of groundwater sustainability plans (“GSPs”) by local Groundwater Sustainability Agencies (“GSAs”). The emergency regulations, developed by the Department of Water Resources (“DWR”), take effect in June.

The new regulations will have some real impacts on GSAs and their implementation of SGMA. The most significant requirements include:
Continue Reading New Regulations for California Groundwater Management

On June 12, the State Water Board issued a notice of “unavailability of water” and the “need for immediate curtailment” from various water users holding pre-1914 water rights.  Less than two weeks later on June 23, lawyers for the State Water Board reportedly stated in court this curtailment notice is advisory only, which would seem…

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