DOD WATER RIGHTS COMPLIANCE IN AN INCREASINGLY THIRSTY WORLD

DOD WATER RIGHTS COMPLIANCE IN AN INCREASINGLY THIRSTY WORLD

DOD WATER RIGHTS COMPLIANCE IN AN INCREASINGLY THIRSTY WORLD Your Host: Major Jeremy N. Jungreis, USMC Special Counsel, Environmental Law Western Area Counsel Office MCB, Camp Pendleton Phone: (760) 725-5613 Fax: (760) 725-5132 jeremy.jungreis@usmc.mil

Presentation Outline I. Introduction/Overview II. Water Right Fundamentals: State Law: Riparian; Prior Appropriation; Regulated Riparian Federal Law--Winters Rights and Non-Reserved Water Rights Hybrid Water Rights (Natl Defense Water Rights) Surface v. Groundwater Method of Federal Enclave Creation Acquisition, Reservation or both? III. Sovereign Immunity: Basis For State Regulation of Federal Rights Possible Waivers State Permits and Fees IV. Proposed Compliance Strategy

Material Supporting Presentation Jeremy N. Jungreis, Permit Me Another Drink: A Proposal for Safeguarding the Water Rights of Federal Lands in the Regulated Riparian East, 29 Harv. Envtl. L. Rev. 369 (2005).

Introduction & Overview Additional Useful Materials: Federal Non- Reserved Water Rights, 6 U.S. Op. Off. Legal Counsel 328, 333 (1982). Cianci Article: 48 Air Force Law Review 159

Introduction & Overview Why Should You Care About Water Rights? -Mission critical -VALUABLE (particularly in the West) -States Increasingly Active in Regulating THE QUESTION: HOW SHOULD FEDERAL INSTALLATIONS BEST PROTECT THEIR WATER RIGHTS?

Introduction & Overview IN ANSWERING, YOU MUST CONSIDER 2 FACTORS: 1. PROPERTY RIGHTS: What is the extent of your water rights under state/federal law 2. REGULATORY POWER: To what extent may the State use its police power to regulate those rights?

Determining Scope of Federal Installation Water Rights Property Rights in Water: Considerations: 1. State water law scheme: Traditionally Congress has deferred to state water law so its important! It s the starting point for analysis. a. Prior Appropriation (Western states)--premised on shortage of water. First in time, first in right to a definitive quantity of water. Right is freely alienable, and not tied to land ownership adjacent to or above the water resource. Forfeiture for Non-use big incentive to WASTE! Creation of Right: divert/withdraw the water and put it to beneficial use (on or off your property).

Determining Scope of Federal Installation Water Rights b. Riparian/Reasonable Use Primarily Eastern states (though CA still retains) Right is incident to property ownership and generally can not be alienated. Buy land overlying or adjacent to water resource and you have a water right. Recipe for overdraft!! Key water use must be reasonable! But what does reasonable mean? preference for water uses aboard riparian/overlying property (e.g., can t export outside watershed)

Determining Scope of Federal Installation Water Rights c. REGULATED RIPARIANISM--Statutory Modification of Riparian System: Permit Systems-- application, reporting, administrative process, limitations on withdrawals LOSS OF PRIORITY FOR NON-COMPLIANCE. Sound familiar? Recognition that water resources in East are finite. State agency decides which use is most reasonable.

State Regulation of Federal Water Rights 2. Type of water resource Surface water versus groundwater--often the same regulatory scheme but not always. In some states only one type of resource is regulated (e.g., SC) 3. Method of Installation Creation Acquired, reserved or combo of both? Will determine whether federal water rights are possible

Determining Scope of Federal Installation Water Rights Federal Water Rights: Can be Express or Implied: Express relatively rare Implied (Winters Rights)- -Judicial fiction that Congress intended to reserve sufficient water to accomplish primary purpose of reservation when it reserves land from public domain even where it doesn t expressly say so.

Determining Scope of Federal Installation Water Rights ADVANTAGES OF FEDERAL WATER RIGHTS Trump competing state law rights Potentially unlimited in volume Not subject to forfeiture for non-use DRAWBACKS OF FEDERAL WATER RIGHTS: Uncertain as to applicability on acquired lands Uncertain as to how much water is entailed in primary purpose of reservation Uncertain as to groundwater applicability Uncertain as to applicability in riparian jurisdictions Can be abolished by Congress or Executive Potential takings claim liability

Determining Scope of Federal Installation Water Rights Evolving Federal Water Right Theories: Non-Reserved Water Rights (controversial!) Would potentially apply federal water rights to all federal land. State/Federal Water Right Hybrids: Natl Defense Water Rights Seminole Compact

State Regulation of Federal Assuming that we have water rights under state or federal law... CAN STATES REGULATE OUR RIGHTS? Shortages/degradation of water resources have spurred many states to act Registration of large withdrawals with state Consumptive/Capacity use ( CU ) permits Water Rights

State Regulation of Federal Water Rights Sovereign Immunity: Can t Sue the King Unless He (e.g., Congress) Says So Same is true for Fed Govt So, states can not enforce water restrictions on Federal Installations unless sovereign immunity has been unequivocally waived by Congress.

State Regulation of Federal Water Rights Possible Sources of SI Waiver: McCarran Amendment (43 U.S.C. 666): Valid waiver, but limited to comprehensive stream adjudications. All it does is get U.S. into court does not allow states to regulate. SeeUnited States v. Puerto Rico, 287 F.3d 312 (1st Cir. 2002) Safe Drinking Water Act (42 U.S.C. 300j-6): No. Most state water allocation statutes are not promulgated under state SDWA authority, nor do withdrawals/diversions impact upon primary or secondary drinking water standards in most cases. Clean Water Act (33 U.S.C. 1323): No. No pollutant discharge or runoff from water withdrawals. Public Trust Doctrine: No. State is trustee for public in state waters but does not own them.

PROPOSED COMPLIANCE STRATEGY IF THEY CAN T MAKE US THEN WHY COMPLY WITH STATE LAW Federal Water Rights are a gamble, and you don t know you have them until you go through an adjudication Applicability on acquired lands is a wide open question. Failure to follow state procedures may result in forfeiture/loss of priority for state law rights (e.g., CPEN, Mountain Home AFB) Now an issue in the East priority goes to existing permit holders in some states (Fl in particular) Information sharing with state/local governments can prevent competing users from encroaching on federal water use Compliance with state law may guarantee a finite amount of water sufficient to meet mission requirements without loss of right to later assert federal water rights.

PROPOSED COMPLIANCE STRATEGY COMPLY AS MATTER OF COMITY WHERE COMPLIANCE IS CONSISTENT WITH FEDERAL MISSION APPLY FOR PERMITS with caveat that we may need to exceed permits if federal mission requires. REPORT WATER USAGE as matter of comity. STAY ENGAGED as a stakeholder Consider reasonable conservation measures that are consistent with federal policy Fees Don t pay without agency comptroller approval. ENFORCEMENT/PENALTIES: Waive that sovereign immunity flag high!! At the end of the day, our compliance is voluntary.

PROPOSED COMPLIANCE STRATEGY Real life examples North Carolina and Mojave Desert. CONSULT YOUR AGENCY COUNSEL BEFORE ENGAGING STATE/LOCAL GOVERNMENTS

AND THAT S ALL FOLKS!! THANKS FOR SNORING QUIETLY QUESTIONS???