The Christian Science Monitor has a piece about private international distribution of water. The article highlights the interests of water entrepreneurs as well as the arguments of activists who oppose private markets in water, but gives short shrift to arguments in favor of private markets.

Nez Perce water rights agreement

From the Idaho Statesmen

Even though Congress has approved a historic Nez Perce water rights agreement, state, federal and tribal officials are still negotiating some of the fine details.

The success of those negotiations may depend on a voluntary conservation program started by ranchers in the Lemhi Valley.

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The $193 million agreement resolves the Nez Perce tribe's claims to all of the water in the Snake River and its tributaries under a 1855 treaty. It would remove a cloud over the use of water for irrigation, power production, manufacturing, businesses and homes from Lewiston to Ashton. The Idaho Legislature and the Nez Perce Tribal Business Council still must approve the agreement by March 31 for it to take effect.

Navajo water rights settlement on the San Juan Basin

Yesterday - Farmington, New Mexico Daily Times editorial on the proposed Navajo water rights settlement on the San Juan Basin.

Today -

The 20th Navajo Nation Council passed, in an historic 62-18 vote Wednesday, the proposed Navajo water rights settlement on the San Juan Basin. It was the first time in 136 years that the Navajo Nation, which spans Arizona, Utah and New Mexico in the Four Corners, had sought its water rights.

“This is as near an important document as the (U.S.-Navajo) Treaty of 1868 because of the water issues,” Delegate Wallace Charley of Shiprock said.

The delegates’ affirmative vote opened the flood gates for the Navajo government to gain eventual control of 56 percent of the basin’s diverted water supply — totaling 606,040 acre-feet of diverted water annually.

Utah studies two huge water projects

From the Deseret Morning News

One would construct a reservoir in northern Utah, divert away the Malad River because it is too salty, and pipe in water from the Bear River 13 miles away. The other would pipe water 120 miles from Lake Powell to St. George in southern Utah.

Historical overview of Colorado water law

Colorado Supreme Court Justice Gregory J. Hobbs, Jr. has provided an excellent backgrounder on Colorado (and in many ways, by extension, western) water law (PDF). First published in '97, the online edition is updated through 2002.

recent developments in water rights litigation - property rights arguments

At law.com Marcia Coyle of the National Law Journal gives a roundup along with some nice background of current major federal water rights litigation involving property rights arguments.

The U.S. Supreme Court early next year will hear arguments in a breach-of-contract case whose legal question, while narrow, arises from what is fast becoming a familiar battle: The federal government, implementing a congressional mandate to preserve an endangered species or some other policy, diverts or reduces the amount of water from a federal water management project or river that farmers believe they have a legal right to use. Orff v. U.S., No. 03-1566.

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government lawyers are negotiating with leading property rights advocates over a recent $26 million damages ruling -- the first of its kind -- for another group of California farmers.

A U.S. Court of Federal Claims judge held three years ago that water restrictions imposed on the farmers by the government under the Endangered Species Act ESA) were an unconstitutional taking without just compensation. Tulare Lake Basin Water Storage District v. U.S., No. 98-101 L.

And waiting in the wings is a $1 billion lawsuit filed by the Klamath Tribes against power company PacifiCorp last spring in the U.S. district court in Portland, Ore., seeking damages for dam construction on the Klamath River that prevents salmon from reaching the upper Klamath Basin. The tribes, whose lawyers say the federal government may be sued as well, are seeking compensation for loss of their historic treaty rights to fish in the river's headwaters.

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"There's a whole series of cases, at least a dozen in the Supreme Court, going back many years, that involve similar issues," said Stouck. "Historically, the government was trying to improve the water-management system. They were doing water management for water management's sake."

The U.S. Bureau of Reclamation did that by building dams, or as in the Orff and Tulare cases, building the Central Valley Project, the largest federal water-management project in the United States, a 400-mile-long system of dams, reservoirs and canals begun in 1937. Along the way, farmers and others created water districts that entered into contracts with the bureau for distribution of water.

"What is happening now -- which is reflected in the current wave of litigation, with ESA cases so far the predominant type -- is that the government is doing something other than water management," said Stouck. "It's trying to pursue some other policy in a way that affects the flows of water."

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Raising the temperature of the already-heated water rights litigation, according to some scholars and observers, is the involvement of the property rights movement.

In the Tulare case, for example, the water districts and farmers are represented by Roger and Nancie Marzulla of Washington, D.C.'s Marzulla & Marzulla, long-time property rights advocates. Nancie Marzulla is head of Defenders of Property Rights, a public interest law firm. Another major property rights group, the Pacific Legal Foundation (PLF), is also handling a number of water rights cases.

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In Tulare, the water districts and farmers argued that they had contract rights entitling them to the use of a specified quantity of water. The government reduced that quantity three years in a row. By preventing them from using that water, the farmers argued that the government had deprived them of the entire value of their contract right -- a physical taking of property.

The Court of Federal Claims rejected all of the government's arguments, including that this was a regulatory, not a physical, taking, and that the public trust doctrine, the doctrine of reasonable use and nuisance law limited the scope of the farmers' property right.

"The federal government is certainly free to preserve the fish; it must simply pay for the water it takes to do so," said Senior Judge John Paul Wiese.

"Wiese said every drop of water is a piece of property you own," said Stouck. "That concept has implications for lots and lots of takings.

Utah's water rights adjudication process

Last week the Utah Supreme Court issued an opinion, In the Matter of the General Determination of Rights to the Use of Water, which provides an excellent summation of Utah's water rights adjudication process.

I. GENERAL ADJUDICATION OF WATER RIGHTS IN UTAH

¶4 "Utah, along with the majority of western states, follows the appropriation doctrine: First in time, first in right for beneficial use is the basis of the acquisition of water rights." Estate of Steed v. New Escalante Irrigation Co., 846 P.2d 1223, 1224 (Utah 1992). "This court has likened 'a drop of water [to] a drop of gold.'" Longley v. Leucadia Fin. Corp., 2000 UT 69, ¶ 15, 9 P.3d 762 (alteration in original) (quoting Carbon Canal Co. v. Sanpete Water Users Ass'n, 425 P.2d 405, 407 (Utah 1967)). Because water is so highly valued, disputes over water rights are inevitable and frequent. Due to the high volume of such disputes and the often technical nature of the process followed to resolve them, Utah law empowers the state engineer to analyze and settle competing water rights claims. See Utah Code Ann. §§ 73-4-1 to -24 (1989).(1) However, when a meritorious request for a large scale determination of water rights is made "by five or more or a majority of water users upon any stream or water source," the state engineer is required to initiate a general adjudication in state district court to resolve all competing claims to water use in the area. Id. § 73-4-1; see also id. § 73-4-18 (allowing district courts to initiate a general adjudication in certain situations).

¶5 "[T]he purpose of the general adjudication process is to prevent piecemeal litigation regarding water rights and to provide a permanent record of all such rights by decree." In re San Raphael River Drainage Area, 844 P.2d 287, 289 (Utah 1992). General adjudication of water rights is a creature of statute, and title 73, chapter 4 of the Utah Code outlines the procedure the litigation should follow.

¶6 When a general adjudication is initiated, the state engineer notifies all known water rights holders and provides public notice of the adjudication by publication. Utah Code Ann. § 73-4-4. After the state engineer provides notice, all individuals and entities are required to submit any water rights claims within the area in question to the state engineer. Id. § 73-4-5. Following the submission of water rights claims, the state engineer conducts a hydrographic survey of the water system and evaluates the submitted claims. Id. § 73-4-3. When the survey is complete and all of the submitted claims have been evaluated, the state engineer then prepares a proposed determination of water rights for the area. Id. § 73-4-11.

¶7 Once a proposed determination has been created, section 73-4-11 of the Utah Code provides that a copy of that determination "shall be mailed by regular mail to each claimant with notice that any claimant dissatisfied therewith may within ninety days from such date of mailing file with the clerk of the district court a written objection thereto duly verified on oath." If no objection has been filed to a proposed determination, or if all objections have been resolved, the district court must enter judgment rendering the proposed determination the final adjudication of water rights for the given area. Id. § 73-4-12; see also Plain City Irrigation Co. v. Hooper Irrigation Co., 51 P.2d 1069, 1073 (Utah 1935) (noting that judgment should not be entered until all protests "have been disposed of and determined").