Federal Reserved Water Rights in Utah

1. Federal Reserved Water Rights in Utah And, some thoughts on Management of the Colorado River and Protection of Flow for Endangered Fishes Norman K. Johnson 2011 Utah Water Users Workshop March 15-16, 2001 The Dixie Center, St. George, Utah

2. J. Golden Kimball Let’s not get “Out of Order!”

3. Western Water Law—Origin and History • In the arid West areas of water use were often located far from sources of supply • Miners built diversions and moved water • Their “first in time/first in right” mining principles carried over to water rights • The doctrine of “prior appropriation” of water was was born (mid to late 1800s)

4. Western Water Law—Origin and History • The federal government supported growth and development of this “new” water law • 1866 Mining Act; 1877 Desert Land Act • The U.S. Supreme Court said these acts severed the land and water estates and directed that water rights be obtained under the laws of the territories and states

5. Western Water Law—Origin and History • Appropriative water rights became constitutionally protected property rights • Their basis is the beneficial use of water • They are defined by quantity, time, and nature of use and can be lost by non-use • Priority date is when beneficial use began • They are transferable

6. Reserved Rights Doctrine—Origin and History • At the same time the appropriation doctrine was developing, federal reservations of land were being made • Congress and the President set aside public land for special purposes, such as Indian reservations, but did not create accompanying water rights

7. Reserved Rights Doctrine—Origin and History • In 1906 the U. S. brought suit on behalf of the Fort Belknap Reservation Indians to secure water rights for them • Defendant farmers/ranchers protested, saying they had valid water rights created under Montana law • The suit created a genuine dilemma

8. Reserved Rights Doctrine—Origin and History • In 1908 the Supreme Court issued its Winters decision • It said Congress, when it created the reservation, must have impliedly intended to reserve water for the Indians • The “reserved rights” doctrine was born • It was judicially created and defined

9. Reserved Rights Doctrine—Origin and History • In Arizona v. California (1963) the U. S. Supreme Court said the reserved rights doctrine applies to federal reservations other than Indian reservations • For Indian Reservations it said the number of practicably irrigable acres on the reservation (PIA) is used to quantify the right

10. Reserved Rights Doctrine—Origin and History • Subsequent case law further defined the reserved water right doctrine • Cappaert v. U.S. (1976) – the amount of water reserved is the minimum amount necessary to fulfill reservation purposes • U.S. v. New Mexico (1978) – primary purposes only get reserved water rights

11. Reserved Rights vs. Appropriative Water Rights • Reserved water rights are important property interests • Their basis is the creation of reservations • The purpose of the reservation defines them (PIA for Indian reservations) • Priority date is creation of the reservation • They are not lost by non-use

12. Reserved Rights vs. Appropriative Water Rights • In addition to having very different characteristics than appropriative water rights, the more pressing problem is that reserved water rights are un-quantified when created • Given their early priority dates, they may compete with State-created water rights

13. Reserved Rights vs. Appropriative Water Rights • Utah, an arid state, has many federal reservations — federal lands set aside for specific purposes, like Indian reservations, national parks and monuments, military bases, etc. • How should these rights be quantified?

14. Reserved Rights vs. Appropriative Water Rights • States have taken different approaches: • In times past, pretend reserved rights don’t exist • Litigate about reserved rights • Negotiate such rights on a case-by-case basis • Utah has chosen to negotiate because the other approaches have been unsuccessful

15. Reserved Rights vs. Appropriative Water Rights • Utah has negotiated reserved water rights for Zion National Park, a watershed in the Dixie National Forest, Cedar Breaks, Hovenweep, Promontory, Rainbow Bridge, Timpanogos, and Natural Bridges National Monuments and the Shivwits Indian Reservation

16. Reserved Rights vs. Appropriative Water Rights • We are working on an agreement for Arches National Park • We are close to agreement with the Ute Indian Tribe • We are working with the Navajo Nation • Both the Ute and Navajo settlements involve water from the Colorado River

17. COLORADEO RIVER CHALLENGES • Optimizing Use of Remaining Allocation (and integrating federal reserved water rights) • Assuring Continued River Use (ESA/Fish Flows) • Protecting Project Investments (Priority Issues) • Keeping Peace with Sister States and Mexico • Studying Curtailment issues

18. COLOARDO RIVER OPPORTUNITIES • Negotiate Indian Water Rights • Negotiate Other Federal Reserved Water Rights • Solve ESA Issues through RIPRAP Compliance • Implement Multipurpose Projects

19. Utah/Navajo Reserved Water Right Negotiations • Navajo has substantial Winters rights • Compacts require Navajo’s rights come from Utah’s share • Utah and Navajo have worked to resolve • Utah must make a financial commitment

20. LIABILITY POTENTIAL • PIA = 166,500+ AF • Expensive, • Unpredictable Litigation • Non-Indian Priority Conflict SETTLEMENT PROPOSAL NAVAJO NATION • 81,500 AF Water Depletion • $156 Million in Projects • Subordination to Existing Rights • Consideration for Local Communities • Emphasis on Drinking Water • 5% of cost ($8M) = State Share

21. BENEFITS OF A SETTLEMENT AGREEMENT • Quantify a Significant Reserved Water Right • Avoid Costly Litigation and Uncertain Outcome • Improve Quality of Life for Utah Navajo People • Provide Certainty for Utah’s Water Users • CUP/Wasatch Front • Uintah Basin and San Juan County • Lake Powell Pipeline • Protect Current Water Rights • Solve Colorado River Issue

22. Another Colorado River Challenge—Fish Flows • The Colorado River Basin is home to four fishes listed under the federal Endangered Species Act (ESA) • Humpback Chub • Colorado Pikeminnow • Razorback Sucker • Bonytail Chub

23. Another Colorado River Challenge—Fish Flows • Congress enacted ESA in 1973 • It requires federal agencies to conserve species listed under the Act • It prohibits anyone from “taking” a species listed as endangered • “Taking” is broadly defined and might include diverting water from listed species habitat • “Reasonable and prudent alternative” needed

24. Another Colorado River Challenge—Fish Flows • The ESA has caused dramatic results in the Columbia and Klamath River Basins (managing for the salmon) and in the tributaries of California’s Bay Delta (managing to protect the Delta Smelt) • In effect, federal judges have become the equivalent of the State Engineer in some places

25. Another Colorado River Challenge—Fish Flows • Some 40 years after ESA’s enactment, states have three choices: • Legislate • Litigate or • Cooperate • Efforts to legislate or litigate regarding ESA have been unsuccessful

26. Another Colorado River Challenge—Fish Flows • The Upper Basin States chose to be proactive and implement a recovery plan for the Colorado River endangered fishes • This gives Utah and the other three states an opportunity to be full partners in recovery implementation and to use water resources while recovery efforts proceed

27. Another Colorado River Challenge—Fish Flows • The program consists of two parts: • The Recovery Implementation Plan (RIP) • The Recovery Action Plan (RAP) • The RIP is what we want to do to recover endangered fishes • The RAP is how we’re going to do it • RIPRAP emphasizes science not politics

28. Another Colorado River Challenge—Fish Flows • Ultimately, recovery would mean ESA issues would be resolved • Meantime, the RIPRAP means Utah can continue to develop its water resources • No RIPRAP compliance means both existing and future diversions may be in question and could be prohibited

29. Another Colorado River Challenge—Fish Flows • The two most important elements of the RIPRAP are: non-native species control (bass and pike) and habitat protection • Habitat protection means facilitation of reintroduction of fry, predator control, creating backwaters, and fish flow sufficiency, which is critical to recovery

30. Another Colorado River Challenge—Fish Flows • Flow recommendations, or flow targets, are set based on 20 years of studies • The fish are resilient and can survive drought, but also need years of significant flow to reproduce • The RIPRAP seeks a balance between the needs of fish and water users

31. Another Colorado River Challenge—Fish Flows • Given use projections, the “pinch point” for flows is Reach 3 on the Green River • Generally, flow is sufficient • How to assure future flows are not jeopardized? • Exercising the Lake Powell Pipeline water right may provide a win/win/win opportunity re fish flows Reach 1 Reach 2 Reach 3

32. Another Colorado River Challenge—Fish Flows • If the LPP water right is exercised as a Flaming Gorge storage right with a point of re-diversion at Lake Powell, then flows would be protectable through Reach 3 • This may require a limited modification to existing in-stream law Reach 1 Reach 2 Reach 3

33. Questions ? The End