water rights

EPA Announces Proposed Interpretive Rule for Tribal Treatment as State (TAS) status under the Clean Water Act

Wenona Singel1 Comment

The proposed rule would streamline the TAS process for many tribes seeking eligibility to administer water quality standards and other Clean Water Act programs.

See the Federal Register announcement here.  The deadline for comments is October 6, 2015.

From the announcement:

The effect of this proposal would be to relieve tribes of the need to demonstrate their inherent authority when they apply for TAS to administer CWA regulatory programs. In particular, this proposal would eliminate any need to demonstrate that the applicant tribe retains inherent authority to regulate the conduct of nonmembers of the tribe on fee lands under the test established by the Supreme Court in Montana. Instead, applicant tribes would be able to rely on the congressional delegation of authority in section 518 as the source of their authority to regulate their entire reservations under the CWA, without distinguishing among various categories of on-reservation land. As EPA explained in connection with the CAA, such a territorial approach that treats Indian reservations uniformly promotes rational, sound management of environmental resources that might be subjected to mobile pollutants that disperse over wide areas without regard to land ownership. See 59 FR at 43959. As specifically recognized by the district court in Montana v. EPA, the same holds true for regulation under the CWA. Montana, 941 F. Supp. at 952.

Pueblo of Santa Ana members measure water quality under the tribe's extensive water-monitoring program, recently certified as autonomous under the Clean Air Act by the U.S. Environmental Protection Agency. Read more at http://indiancountrytodaymedianetwork.com/2015/07/22/santa-ana-pueblo-get-epa-certified-administer-clean-water-act-tribal-land-161159
Pueblo of Santa Ana members measure water quality under the tribe’s extensive water-monitoring program, recently certified as autonomous under the Clean Air Act by the U.S. Environmental Protection Agency.
Read more at http://indiancountrytodaymedianetwork.com/2015/07/22/santa-ana-pueblo-get-epa-certified-administer-clean-water-act-tribal-land-161159

Michael Blumm on Federal Reserved Water Rights

Matthew L.M. Fletcher

Michael C. Blumm has posted “Reserved Water Rights as a Rule of Law” on SSRN. Here is the abstract:

The reserved water rights doctrine is — and always has been — a controversial doctrine in Western water law circles because it provides a federal trump over state systems of water allocation. First articulated by the U.S. Supreme Court over a century ago, states and their water rights holders have always resisted implementation of federal water rights because the federal government and its trustee Indian tribes often have different water priorities than the states, long committed to diversionary rights largely for irrigated agriculture.

In Idaho, opposition to federal water rights largely succeeded in defeating water for wilderness, national forests, national recreational areas, and other federal conservation lands in the decisions by state courts in the massive Snake River Basin Adjudication (SRBA). Now, in an Idaho Law Review article, two advocates for state water rights who helped defeat federal water rights in the SRBA proffer a theory that, if accepted by other Western states, would export their Idaho victories.

This response to their effort explains why their theory is flawed and should be rejected by Western state courts. Their argument was in fact not adopted by the Idaho Supreme Court, which employed other reasoning for rejecting federal reserved water rights. This essay maintains that, although Congress certainly has the power either to affirm or reject water rights for federal lands, the idea that water rights may be lost by mere congressional discussion of the doctrine followed by a decision not to take action cannot be interpreted as a rejection of a legal doctrine over a century old. There is no support for interpreting congressional inaction to reverse a long settled legal doctrine like federal reserved water rights — and the costs imposed on federal interests, especially in terms of instream flows, would be significant.

Crow Allottees Challenge to Crow Water Compact Dismissed on Federal Immunity Grounds

Matthew L.M. Fletcher4 Comments

Here are the materials in Crow Allottees Association v. Bureau of Indian Affairs (D. Mont.):

35 BIA Motion for Judgment on the Pleadings

38 Response

42 BIA Reply

59 DCT Order

Bob Anderson on Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country

Matthew L.M. Fletcher

Robert T. Anderson has posted his paper, “Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country,” forthcoming in the Stanford Environmental Law Journal, on SSRN.

The abstract:

In the seminal Indian water rights case, Winters v. United States (1908), the Court posed this question: “The Indians had command of the lands and the waters—command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this?” The Court’s answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for water resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses.

This article reviews the nature of Indian water rights—both on and off reservations—and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly limited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on-reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water.

Highly recommended!

Anishinaabe nibi inaakonigewin (water law) gathering

Victoria Sweet1 Comment

Announcement from Professor Aimée Craft:

I hope that you will consider joining us for the Anishinaabe nibi (water) gathering taking place in the Whiteshell this June. After a few years of gathering with Elders on a project relating to Anishinaabe nibi inaakonigewin (water law), we are inviting people to come and learn about water teachings in an outdoor teaching lodge format.  We want to focus on youth participation and attendance.

Please share with your networks and people you think would be interested in attending.  All are welcome. 

To RSVP and for questions: watergathering2015@gmail.com

*Also, please consider bringing a young person to accompany you or assist us with travel funding for youth.*

 Agenda – Nibi Gathering – June 2015

Map – Nibi Gathering

Poster Nibi Gathering

Montana Supreme Court Briefs in re: Crow Water Compact

Matthew L.M. Fletcher5 Comments

Here are the materials in In the Matter of the Adjudication of the Existing and Reserved Water Rights to the Use of Water, Both Surface and Underground, of the Crow Tribe of Indians of the State of Montana:

Allottees Opening Brief

Federal-State-Tribal Brief

Allottees Reply Brief

Michigan Radio on the Proposed Lake Huron Nuclear Waste Site

Kate Fort

Here.

Includes a brief quote from Vernon Roote, Saugeen First Nation Chief.

Update in Agua Caliente Water Rights Case — Materials re Petition to Appeal to CA9

Matthew L.M. Fletcher2 Comments

Here:

2015-03-16 – Phase 1 summary judgment earing transcript (original)

2015-04-13 – Dkt 10-1 – ACBCI Answer to Petition

Petition for Permission to Appeal-c2

US.answer

Previous post here.

New Scholarship on Arizona v. California

Matthew L.M. Fletcher

Amy Cordalis and Daniel Cordalis have published “Indian Water Rights: How Arizona v. California Left an Unwanted Cloud over the Colorado River Basin” in the Arizona Journal of Environmental Law.

The abstract:

The Colorado River is one of the most important rivers in the world. The river’s 1,400-mile journey from the Rocky Mountains to the Sea of Cortez takes on waters from seven states and from the reservations of twenty-eight Indian tribes along the way, 244,000 square miles of river basin in all. The Colorado River is also heavily managed: Its waters are allocated through a complex body of laws collectively referred to as the “Law of the River,” which includes an international treaty, two interstate water compacts, numerous federal and state statutes, and more than a dozen Indian water rights settlements. For thousands of years before the Law of the River, however, American Indians lived and irrigated within the Colorado River Basin, making due with its characteristically seasonal rains and difficult growing conditions. Today, in a cruel but all-too common twist for tribes, twelve of the basin’s twenty-eight tribes have not had their water rights completely quantified, leaving many of the basin’s oldest inhabitants without a legally secure source of water. This begs the question of how the Law of the River developed such that the Colorado River is already over-allocated but Indian water rights are to a large extent unaccounted for, and tribes—occupying and using water in the basin since time immemorial—are left struggling for whatever remaining drops they can squeeze out of the basin. And, perhaps more to the point, the question arises how Arizona v. California recognized this exact issue in the Lower Colorado River Basin and could not to fully resolve it. This article finally takes the position that tribes, the states, and the federal government must work together to settle Indian water rights claims to provide certainty to all Colorado River basin water users amidst growing undertainty from polulation growth and climate change.

Indigenous activists among those killed worldwide for protecting the environment.

Ann Tweedy

Here’s the BBC article.