TWCA Annual Convention

1. Lyn Clancy
TWCA Annual Meeting
March 2016

2. California
Application of the Public Trust Doctrine to
Regulation of Groundwater
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Envtl. Law Found. v. State Water Res.
Control Bd., No. 34201080000583 (Cal.
Super. Ct., July 15, 2014).
“[T]he public trust doctrine protects navigable
waterways from harm caused by
groundwater extraction”
Applies when the groundwater is “so
connected to a navigable river that its
extraction harms trust uses of the river.”
Effect of the Sustainable Groundwater
Management Act?

3. California
Russian River Valley
TWCAAnnual Meeting – March 2016 3
Kmusser – Self-made, Based on USGS data.
Light v. State Water Resources Control Bd.,
226 Cal. App.4th 1463 (Cal. 2014, pet. denied)
Public trust doctrine and doctrine of reasonable use
supports regulation of water use by riparians and
early appropriators.
“[T]he reasonableness of any
particular use depends largely
on the circumstances.”
Diversion that is harmful to
salmonids is an unreasonable
use if diversion can be
managed to avoid the harm.

4. California
Friant Water Auth. v. State Water Res.
Control Bd., Cal. Sup. Ct., 10/24/14
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Does state have right to limit diversions
of senior water rights based on a “health
and safety” during drought to protect
water quality or provide water for other
purposes?

5. Bear Valley Mut. Water Co. v. Jewell,
790 F.3d. 977 (9th Cir. 2015),
cert. denied, No. 15367 (U.S. Jan. 11, 2016)
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By Paul Barrett, USFWS
• Endangered Speices Act (ESA), 16 U.S.C. §1531(c)(2), states that “It
is…to be the policy of Congress that Federal agencies shall cooperate
with State and local agencies to resolve water resource issues in
concert with conservation of endangered species.”
• USFWS did not violate ESA by failing to consult with state and local
agencies when designation critical habitat in Santa Ana River.
• Critical habitat designation not a major federal action triggering NEPA.

6. Oregon
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WaterWatch of Oregon
v.
U.S. Bureau of Reclamation, Central Oregon
Irrigation Dist., North Unit Irrigation Dist.,
and Tumalo Irrigation Dist.
No. 6:16-cv-00035-TC (E.D. Ore., Jan. 11, 2016)

7. Oregon: Perfection of Municipal Water Rights
WaterWatch of Ore., Inc. v. Water Res. Dep’t,
342 P.2d 712 (Ore. App. 2015)
• Oregon law requires Oregon Dept. of Water Resources to
impose conditions on undeveloped portions of municipal
water use permits “to maintain …the persistence of [specific]
fish species.”
• Water right holders sought extension of time to perfect their
water rights for diversion from the Clackamus River.
• Held: Even though flow variability was maintained, ODWR did
not assess impact of “short-term” drop below persistence
levels or ensure that diversion will not contribute to longer
periods of low flows.
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8. Washington
Foster v. Dep’t of Ecology
362 P.3d 959 (Wash. 2015)
• Minimum Instream Flows:
– Established by administrative rule and have a priority date as of rule’s
adoption.
– Withdrawals of water that impair minimum flows are allowed only where “it
is clear that overriding considerations of the public interest will be served.”
• Held:
– Statute does not allow an “end run” around normal appropriation process.
– Such authorizations only for temporary withdrawals constituting
“extraordinary circumstances.”
• Municipal water needs are common and likely.
• Mitigation plan is irrelevant to the injury.
– “[T]he prior appropriation doctrine does not permit even de minimis
impairments of senior water rights.”
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9. TWCAAnnual Meeting – March 2016 9
Colorado law prescribes limited, very
specific manner for appropriating instream
flows:
(1) state appropriation of minimum
flows as required to preserve the natural
environment to a reasonable degree;
(2) various local governments can
divert water for recreational in-channel
diversion purposes (in-channel boating).
Colorado
St. Jude’s Co. v. Roaring Fork
Club, L.L.C.,
351 P.3d 442 (Colo.. 2015)
Held: Private diversion of water from a river into a
ditch for aesthetic, recreation, and piscatorial uses is
not a “beneficial use” of water.