Western Governors Association

1. Western Governors Association Water Transfers

2. Who is the WGA? • http://www.westgov.org/about/governors

3. Adam Smith • Invisible hand • It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest • Supply and demand • Two independent goals

4. Water • Public Good • Private Good • Multiple Uses • Mutually Exclusive Competing Ends

5. New Markets • Air Emissions • Open Space • Nature Conservancy • Oil Leases • Energy Production • Carbon Markets

6. Jennifer Pratt, EDF • In the 21st Century, western states depend on a reliable water management system to sustain not only irrigated agriculture and growing cities, but also the economically vibrant recreational, fishing and rural sectors that depend on healthy rivers.

7. Dale Mauch, farmer • We live in a desert. Water is worth more in the Front Range. The question is: how can we farm as long as we can under this reality?

8. Brianna Randall, CFC • Water is central to everything we care about in the West. But as water demands increase, groups like the Clark Fork Coalition are being challenged to conserve the flows in our streams and rivers.

9. Phillip C. Ward, WSWC • All of the western states face challenges from growth, and we can’t be certain of how much are we going to grow and how much water we will need

10. California Constitution • SEC. 2.  It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. 

11. Surface Water • The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. 

12. Riparian Rights • Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled.

13. Why Water Transfers? • Riparian and Appropriative rights lead to gross inefficiencies due to the use it or lose it rules. • Water does NOT flow to the highest value of use. • Unlike appropriative users, riparian right holders were not required to put water to reasonable and beneficial use.

14. CA State Water Board • A water right is a legal entitlement authorizing water to be diverted from a specified source and put to beneficial, nonwasteful use. Water rights are property rights, but their holders do not own the water itself. They possess the right to use it. The exercise of some water rights requires a permit or license from the State Water Resources Control Board (State Water Board), whose objective is to ensure that the State’s waters are put to the best possible use, and that the public interest is served. • In making decisions, the State Water Board must keep three major goals in mind: • developing water resources in an orderly manner; • preventing waste and unreasonable use of water; and • protecting the environment

15. Beneficial? • Beneficial Use refers to a reasonable quantity of water applied to a non-wasteful use. Potential beneficial use options for produced water include: • Click to enlarge • Domestic • Livestock watering • Industrial • Commercial • Agriculture irrigation • Mining • Fishery • Wildlife maintenance and enhancement • Recreational • Fire protection • Dust suppression • Preservation of environmental and aesthetic values • All other uses compatible with the enjoyment of the public waters

16. Colorado • Beneficial use in Colorado is statutorily defined as "the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made".

17. Beneficial Uses • http://aqwatec.mines.edu/produced_water/intro/what/index.htm • Table 1

18. Ground Water • In most areas of California, overlying land owners may extract percolating ground water and put it to beneficial use without approval from the State Board or a court. California does not have a permit process for regulation of ground water use. In several basins, however, groundwater use is subject to regulation in accordance with court decrees adjudicating the ground water rights within the basins.

19. Ground Water • The California Supreme Court decided in the 1903 case Katz v. Walkinshaw that the “reasonable use” provision that governs other types of water rights also applies to ground water. Prior to this time, the English system of unregulated ground water pumping had dominated but proved to be inappropriate to California’s semiarid climate. The Supreme Court case established the concept of overlying rights, in which the rights of others with land overlying the aquifer must be taken into account. Later court decisions established that ground water may be appropriated for use outside the basin, although appropriator’s rights are subordinate to those with overlying rights.

20. Common Pool Issues • Pump Fast • As with oil and natural gas • Subsidence

21. Conflicts • The State Board also is responsible for investigating possible illegal, wasteful or unreasonable uses of water, either in response to a complaint or on the State Board’s own initiative. If the State Board’s staff investigation determines that a misuse of water is occurring, the Board generally notifies the affected persons and allows a reasonable period of time to terminate the misuse. The State Board may also hold a hearing to determine if a misuse of water has occurred or is occurring. Water users who do not terminate a misuse of water are subject to various administrative enforcement measures including possible fines and revocation of a permit or license. In appropriate cases, the State Board may also seek judicial relief in the courts.

22. Transfers • In recent years, temporary transfers of water from one water user to another have been used increasingly as a way of meeting statewide water demands, particularly in drought years. Temporary transfers of post 1914 water rights are initiated by petition to the State Board.

23. Reviews • If the Board finds the proposed transfer will not injure any other legal user of water and will not unreasonably affect fish, wildlife or other instream users, then the transfer is approved. If the Board cannot make the required findings within 60 days, a hearing is held prior to Board action on the proposed transfer. Temporary transfers are defined to be for a period of one year or less. A similar review and approval process applies to long-term transfers in excess of one year.

24. Area of Origin • California's area of origin statutes were born in the crucible of conflict between residents of Owens Valley and the City of Los Angeles in the early 20th century. This struggle reached its nadir when some deeply frustrated residents seized the Alabama Hills diversion gates for the Los Angeles Aqueduct and later detonated a bomb that severed an Aqueduct pipeline in 1927.

25. CVP and SWP • Areas of California beyond the reach of the State Water Project and the Central Valley Project's water rights do not receive water right reservations under these laws. This means that the areas of origin for San Francisco's Hetch Hetchy water supply, East Bay MUD's Mokelumne River water supply, and Los Angeles' Owens Valley and Mono Basin supplies are exempt from area of origin rights.