The Nevada Supreme reversed itself on title to vested water rights on public land. The court’s seven-person panel unanimously agreed that title to vested water rights established for grazing purposes upon public land is determined by priority of possession of the water right. In other words, the water right belongs to whomever can trace its interest back to the original appropriation. They must also demonstrate that possessory interest has been continually exercised.

In this case, three parties were all determined to have a connection to the original grazier. They accordingly held vested stock water rights with an 1862 priority date.  The decision, issued April 6, 2021, concludes a matter that has been working its way through the state’s court system for 10 years.

Underlying Vested Water Rights Case

In 2011, Daniel & Eddyann Filippini filed an action seeking, among other things, to determine priority dates for watering cattle from Trout Creek in Lander County. One of the parties, Rand Properties, Inc., appealed the initial ruling by the Lander County District Court. The Supreme Court sent the matter back to the district court for additional fact-finding. In so doing, the Supreme Court also reversed the district court’s judgment. That judgment said that stock water rights passed by priority of possession, citing a 1931 case, Steptoe Live Stock Co. v. Gulley, which purportedly stated that “stock water rights on public domains are passed by chain of title.”

After the Lander County District Court issued its findings on remand, Rand again appealed. The Supreme Court seized on the opportunity to admit its mistake. In a footnote on Page 10 of the 14-page order affirming the district court’s ruling, the Supreme Court elaborated:

“To the extent that in our prior order and reversal and remand we concluded that vested stock water rights on public lands pass by chain of title, we now expressly reject that conclusion. … Our prior order cited to Steptoe in support of this erroneous conclusion, however, the reasoning set forth in Steptoe supports concluding that the priority of vested stock water rights are established by possession or beneficial use.” 

The order goes on to confirm that the ruling in Steptoe is consistent with federal law concerning the appropriation of water on public lands, 43 USC 661. This article provides “that rights based on priority of possession, which have vested and accrued and are recognized and acknowledged by local custom, shall be maintained and protected.” (Italics in original).

The ongoing efforts to protect a central Washington aquifer and the economic interests jeopardized by its steady decline were the focus of the Columbia Basin Development League’s Conference and 54^th Annual Meeting, which was held November 1 at Moses Lake.

The CBDL, which identifies itself as a non-profit organization representing the interests of stakeholders of the Columbia Basin Project, the largest Bureau of Reclamation project in the United States, has staunchly advocated for full development of the Project. Initially authorized to provide irrigation for 1.1 million acres – water, diverted from the Columbia River at Grand Coulee Dam, was first delivered in 1948 – the Project currently serves approximately 700,000 acres. Irrigators on the eastern side of the Project area not served by the Project’s vast conveyance network – plans for full buildout were scuttled in the 1960s due to escalating costs – became reliant on groundwater sourced from the Odessa Aquifer.

To address the aquifer’s continual decline, which has caused numerous wells in the region – owned by municipalities as well as farmers – to fail, the state of Washington launched the Columbia River Initiative, which revived plans for expansion of the Project. In 2013, those plans took shape as the Odessa Ground Water Replacement Program.

OGWRP, intended to ease irrigation reliance on groundwater within the Odessa Subarea by switching eligible landowners over to Project surface water, is a two-step construction undertaking. The first phase, a $50 million expansion of OGWRP’s primary artery, the East Low Canal, and associated infrastructure to accommodate added capacity, is well under way. The second phase, building pumphouses and laterals to deliver water to eligible irrigators, is in the formative stages and expected to cost approximately $175 million.

After a panel discussion on OGWRP featuring a farmer/landowner, an Adams County administrator and two representatives from the East Columbia Basin Irrigation District, U.S. Rep. Dan Newhouse added his perspective in the conference’s keynote address. Newhouse lauded the progress made through the collaborative efforts of federal, state and local entities, then turned to the issue of financial support. “The state of Washington has done great job, but it’s time for the federal government to step up,” he said. “We need to make (the Columbia Basin Project) bear all the fruit it was designed to.”

Newhouse indicated the key to obtaining federal funding would be getting the Project included as a line item on the president’s budget rather than relying on receipt of an earmark through the appropriations process. With continued efforts to bring attention to OGWRP – and the potentially devastating economic and environmental consequences if it is not fully implemented – Newhouse believed that the need would be recognized.

“There’s a tremendous opportunity in the Columbia Basin for (President Trump) to put his stamp,” Newhouse said. “We’ve got a builder in the White House.”

For more information on OGWRP and the Columbia Basin Project go to https://www.cbdl.org/.

In a move he hopes will ease the most arduous administrative burden faced by the Idaho Department of Water Resources, Director Gary Spackman has created the state’s largest groundwater management area, encompassing the Eastern Snake River Plain Aquifer (ESPA) region.

Hoping “to stop the drop” of the aquifer level, which has experienced an annual rate of decline estimated at 200,000 acre feet, Spackman signed the order designating Idaho’s 12^th GWMA. He announced the action to the Idaho Water Users Association on November 3.

His intent, Spackman said, was to bring all of the region’s water users “into the fold” with efforts to restore the aquifer. Although this was partly accomplished by the 2015 settlement agreement between ground water and surface water groups within the conjunctively managed ESPA region, users who were not members of a ground water district did not have an opportunity to take part.

“This is a tool to manage the aquifer so everyone is participating,” said Spackman, noting that the eventual management plan for the GWMA will work in cooperation with the settlement agreement. He offered no timeline for the development of the management plan, but it is expected to take at least two years.

The ESPA region GWMA extends from the upper eastern corner of the state, near Saint Anthony, to Thousand Springs near Hagerman where the ESPA discharges into the Snake River. Existing GWMAs and critical groundwater management areas — four of which located near Oakley — have been excluded from the ESPA region GWMA.

Additional information can be found on the IDWR website at http://www.idwr.idaho.gov/water-rights/ground-water-management-areas/designated.html

The latest chapter in Schroeder Law Offices’ long-standing relationship with the Idaho Rural Water Association can be found in the Fall 2015 edition of IRWA’s quarterly publication, The Water Gram.

In it, Laura Schroeder and James Browitt discuss the current status of Idaho’s ambitious adjudication process, which has worked its way from the Snake River basin to the state’s panhandle. You can read about it here.

In 2014, Browitt wrote this blog about three phases of the ongoing North Idaho Adjudication. As the Water Gram story updates, the second phase, the Palouse River Basin Adjudication, is expected to get under way this coming spring.

Schroeder and Browitt, both of whom are licensed in Idaho, have worked closely with IRWA for many years. They regularly serve as instructors at the association’s annual conferences and have recently developed day-long road-show workshops. The next series of these workshops, entitled Water Law to You, is tentatively scheduled for June of 2016. Information on these and other IRWA-related activities will posted on our Coming Events page when it becomes available.

The Washington Department of Ecology has started work on updating the state’s Concentrated Animal Feeding Operation (CAFO) general permit, and is calling for public input in the formative stages of this process.
Ecology is the state’s control agency, as authorized by the Environmental Protection Agency (EPA), for activities falling under the jurisdiction of the Clean Water Act. Its authority encompasses permitting and regulation of wastewater discharge in various forms, including that from facilities confining animals such as cattle, horses and chicken in large numbers. Generally speaking, a CAFO exists when animals are confined for at least 45 days in a 12-month period to an area that contains no vegetation.
Washington’s CAFO permit, which addresses both federal and state regulations, expired in 2011. Facilities that were covered by the permit at the time of expiration? there were 10 ? are allowed to operate under the permit’s terms during the update process.
In an effort to both involve and inform interested parties, Ecology has scheduled two public meetings ? at Zillah on April 21 and at Bellingham on April 23. In what it is calling listening sessions, Ecology will outline its agenda as well as field comments and questions.
More information is available on Ecology’s website at http://www.ecy.wa.gov/programs/wq/permits/cafo/index.html.

North Idaho Adjudication Ramping Up

With Idaho set to wrap up a 27-year water-rights adjudication of unprecedented scale nationwide, water administrators are gradually shifting their focus to the state’s northern basins and a procedure expected to take only a fraction of the time as the Snake River Basin Adjudication (SRBA).  The SRBA — involving all Idaho-situated tributaries of the Snake River, which extend over 90 percent of the state — will become the nation’s largest general adjudication brought to completion.  In comparison, the North Idaho Adjudication (NIA) will encompass parts of only six counties and stretches just 180 miles south of the Canadian border.

Three Phases

In actuality, the North Idaho Adjudication has been under way since 2008, and the first of its three phases, covering the Coeur d’Alene-Spokane River Basins, has predominantly taken shape. Nearly 11,500 claims have been filed, and director’s reports for all five basins are anticipated by mid-2016. The second phase of the NIA, involving the Palouse River Basin, is expected to commence next summer, while the third, for the Clark Fork-Pend Oreille River Basins, is projected to start before 2020. The state’s Adjudication Court anticipates it will see claims filed for up to 30,000 water rights, or roughly one-fifth the number it processed during the SRBA.

While the NIA’s scope promises a far more expedited process than did the SRBA, so does the experience gained in the prior adjudication. The Fifth Judicial District Court in Twin Falls will retain jurisdiction — although the staff will travel north on occasion, a majority of the court’s business will be conducted by way of video or audio teleconferencing — and the Idaho Department of Water Resources (IDWR) has become adept at handling whatever issues arise, whether they require extensive site investigations or guidance on basic procedural matters.

Water Rights Holders’ Responsibilities

Holders of water rights predating the NIA’s November 12, 2008 commencement must participate or the right will be extinguished once a final decree is entered. Rights that fit the statutory definition of domestic or stockwater use are deferrable, but IDWR advises such users to file claims as well, considering the insignificant cost ($25) as compared to the benefit of having a decreed right.

This may prove vital for users in Kootenai County — where Coeur d’Alene is located — if the state of Washington establishes proposed in-stream flows for the Spokane River in stretches west of the Idaho state line. Although Washington has no administrative authority over water users in Idaho, observers anticipate conflicting interstate demands will ultimately lead to litigation and an interstate compact.The priority date for the involved rights may very well determine which State (and its users) prevails.

For more information, go to http://www.idwr.idaho.gov/WaterManagement/NorthIdAdju/default.htm