Water

On Tuesday, the U.S. Supreme Court denied Chevron's petition for certiorari from a decision of the Second Circuit Court of Appeals.  Chevron was seeking an injunction barring the enforcement of a $18 billion Ecuadorian judgment anywhere in the world.  The District Court for the Southern District of New York agreed with Chevron's accusations of fraud and manipulation of evidence by the plaintiffs and their attorneys and granted the injunction in March 2011.  The Second Circuit vacated the injunction in January of this year and Chevron appealed to the Supreme Court.  This U.S. case stems from a case in Ecuador, in which an Ecuadorian judge awarded over $18 billion to local farmers and indigenous groups in February 2011. read more

Crowds gathered in Socorro, New Mexico at the County Courthouse yesterday to hear oral argument on motions filed by various parties seeking to dismiss an application filed by Augustin Plains Ranch, LLC (APR) to appropriate 54,000 acre-feet of water to be used to off-set the effects of existing uses.  If granted, the application would give APR the right to use and perfect the water rights contained in the resulting permit at no cost to itself.  Speculation appears to be an inherent trait in applications seeking to transfer or appropriate large quantities of water and move it from rural areas to urban areas for economic gain.  The application filed by APR states a very broad place of use that includes seven New Mexico counties and seeks every possible purpose of use for the water, since the end users and uses have not yet been identified.  Last year, then-State Engineer, John D'Antonio granted a similar motion to dismiss an application seeking to pipe water from Ft. Sumner to Santa Fe to sell for a profit.  read more

Earlier today, Governor Susana Martinez selected professional engineer, Scott Verhines, to serve as New Mexico's new State Engineer.  Scott is the president of Occam Consulting Engineers, Inc., a private consulting firm specializing in water resources, program management, transportation and public works.  Scott will replace John D'Antonio who was appointed by former Governor Bill Richardson in 2003 and who is leaving to work for the Army Corps. of Engineers.  The Governor confirmed that Estevan Lopez, another candidate for the position, will continue to serve as the director of the Interstate Stream Commission. read more

On Thursday, October 13, 2011, the New Mexico Supreme Court heard oral arguments in two cases challenging the state statutes on domestic wells.  The cases essentially challenge the Constitutionality of several state statutes that mandate that the Office of the State Engineer approve applications for domestic wells.  The second related case argues that under the prior appropriation doctrine, domestic wells should be assigned a priority date.  Currently, they are not assigned a priority date.  The debate affects farmers, tribes, and other owners of old and senior water rights as domestic wells have proliferated.  The impact of domestic wells on the overall supply of water has also increased as drought conditions have become more prevalent. read more

New Mexico's State Engineer, John D'Antonio, announced on Tuesday, October 4, that he would be resigning from his job as the state's top water official and would be taking a job with his former employer, the Army Corps of Engineers.  D'Antonio has served as the State Engineer since being appointed by Governor Bill Richardson in 2003.  D'Antonio has been the center of numerous long running water-rights settlements, several of which have involved Navajo water-rights settlements along the San Juan River and those involving water rights on the Lower Rio Grande.  D'Antonio will remain in the position for 30 days while Governor Susana Martinez appoints a replacement.  Any appointment must be approved by the State Senate. read more

The State of New Mexico filed a Declaratory Judgment action against the federal government on August 8, 2011, claiming that the federal government has denied New Mexico its rightful allocation of surface water in the Rio Grande Project.  The State's complaint argues that the federal government's actions threaten the sustainable riverine environment, related aquifer, and the environment, flora, and fauna that rely on the Rio Grande and its connected groundwater.  Through its action, New Mexico seeks a court order to permanently enjoin and declare void the 2008 Operating Agreement to be executed by the federal government on the grounds that it violates the Water Supply Act of 1958 because it seriously affects the purposes for which the Rio Grande Project was authorized, surveyed, planned or constructed and is a major operational change to the Rio Grande Project without approval by Congress. read more

In a recent decision (not published), the 7th judicial district court in New Mexico placed limitations on the authority of the Office of the State Engineer (OSE).  Judge Matthew Reynolds wrote: "The State Engineer paints with too broad a brush to grant himself exclusive authority to determine the validity of pre-1907 water rights."  In short, the judge ruled that once an administrative process starts, then the exhaustion of administrative remedies applied.  However, in the case before the court, a party had NOT initiated the administrative process and instead had filed for a declaratory action in District Court under the Declaratory Judgment Act, NMSA 1978, Sections 44-6-1 through 44-6-15.  Therefore, they were entitled to relief before the court, and the case would NOT be dismissed as requested by the OSE. read more

The Arizona Legislature adjourned sine die on April 20, 2011.  While in session, the Legislature enacted two key regulatory reform bills that will affect environmental and administrative law practitioners as well as regulated entities in the state.  House Bill 2665, sponsored by Rep. Amanda Reeve (R-Dist. 6), strengthens the protections available to entities regulated by state and county environmental agencies.  Senate Bill 1598, sponsored by a coalition of Republican senators, establishes a regulatory bill of rights applicable to local governments. read more

On Tuesday, April 12, the U.S. Geological Survey (USGS) released a sophisticated computer model of the interconnected aquifers in central and northern Arizona.  The Northern Arizona Regional Groundwater Flow Model simulates how precipitation moves through aquifers and eventually supplies water to rivers, streams, and springs.  The model covers the watersheds of the Verde, Salt, Colorado, and Little Colorado Rivers.  Years in the making, the model was commissioned by the Arizona Department of Water Resources in 1999.  The Yavapai County Water Advisory Committee also provided financial support.  A key benefit of the model is that it will allow policymakers and other users to understand how various changes, natural or social, may affect regional groundwater supplies.  read more

We blogged here last fall about Lake Mead's record low water levels.  The reservoir reached an all-time low of 1,081.85 above sea level on Nov. 27, 2010.  Now, following the wettest winter in a decade, the mountain snowpack above the Upper Basin of the Colorado River has built up to a level 20% higher than normal.  This will allow the Bureau of Reclamation (BOR), as it announced on April 12, to release an additional 3.33 million acre-feet (maf) of water from Utah's Lake Powell to Nevada's Lake Mead.  This brings the total to be released up to 11.56 maf, up from earlier projections of only 8.23 maf.  The increased amount of release will avoid shortages in Lake Mead that would have triggered restrictions on water deliveries to Arizona and Nevada users under complex compacts existing between the Colorado River Basin states. read more

On Monday, April 11, 2011, BrightSource Energy, Inc., announced that it had closed financing for the Ivanpah Solar Electric Generating System, a 392 megawatt solar power plant under construction in California's Mojave Desert.  Financing for the plant includes $1.6 billion in loan guarantees from the U.S. Department of Energy and a $168 million equity investment by internet giant Google, both announced on Monday.  NRG Solar is the project's other large equity stakeholder, which has committed to invest up to $300 million.  BrightSource, which is headquartered in Oakland, California, also has operations in the Negev (Israel) and Australia. read more

On February 24th-25th, water law attorneys, water experts, and economists from across the nation gathered in San Diego to attend the Annual Super Water Law Conference sponsored by the American Bar Association's section of Environment, Energy and Resources.  The conference began with a basic overview of riparian and prior appropriation law and went on to discuss issues currently facing both riparian and prior appropriation states.  Aside from water rights, the conference touched on cost-benefit analysis, water quality, watershed governance, floodplain safety, the Endangered Species Act, and Tribal water rights, among other other topics.  This annual conference provides a unique opportunity for lawyers and experts to engage in a broad discussion on water issues faced by local governments around the nation. read more

Earlier this month, on Valentine's Day to be exact, the Obama Administration unveiled its proposed FY 2012 budget, which reflects an approximate thirteen percent (13%) decrease in funding for the Environmental Protection Agency (EPA).  As everyone keeping even moderately abreast of current events is painfully aware, President Obama is faced with the herculean task of producing a proposed budget that is not only fiscally sound in response to the financial devastation caused by the Great Recession, but also practically prudent in its ultimate application.  In the case of the EPA, the specific task at hand is to reasonably reduce operating overhead while still enabling the agency to effectively carry out its primary purpose of protecting human health and the environment. read more

On Dec. 20, the ADEQ issued two new multi-sector general permits (MSGPs) for stormwater discharges regulated under the Arizona Pollutant Discharge Elimination System (AZPDES).  The new MSGP 2010 for non-mining industrial activity applies to twenty-five specific industrial sectors as well as a sector reserved for any additional discharges designated by the ADEQ as appropriate for coverage in the future.  The MSGP 2010 for mining activity covers four specific sectors within the mineral industry.  The new permits become effective Feb. 1, 2011 and are valid for a term of five years from that date. read more

The Albuquerque Bernalillo County Water Utility Authority has announced a plan to recharge the aquifer beneath the Albuquerque metropolitan area.  The water utility intends to drill two deep wells in the city's northeastern quarter that will be used to pump water into the aquifer, as part of a water conservation technique called "water banking."  The utility would store excess water in the aquifer during the winter months when consumption is lowest and pump it back out during the summer as water demand increases.  This would reduce the depletion of native water in the aquifer.  The depletion of Albuquerque's aquifer has become a large concern in recent years with the discovery that the water table in some parts of the city has dropped 100 feet or more due to groundwater pumping. read more

On Monday, November 15, 2010, the US Supreme Court denied cert to hear a last minute challenge to Hydro Resources Inc.'s Nuclear Regulatory Commission license to mine uranium in northwestern New Mexico near Church Rock.  The permit would allow Hydro Resources to leach-mine uranium.  Challengers had challenged the license after the US 10th Circuit denied a request for rehearing in September.  Opponents will continue to mount efforts at the state level, since certain permits will still be required from the New Mexico Environmental Department and other state agencies.  Major concerns have been raised concerning potential groundwater contamination. read more

The "Law of the River" is a complex collection of interstate compacts, federal laws, court decisions, and other documents that governs the allocation of Colorado River water and operation of the river's dams.  But this esoteric body of law is now making the news due to the Southwest's shrinking water supply.  Due to a multi-year drought coupled with rapid development in the Southwest, the water level in Nevada's Lake Mead, an almost 10 trillion-gallon reservoir created by Hoover Dam, has dropped to historic lows: hitting 1083.18 ft. below sea level on Sunday, Oct. 17, then falling further to 1083.09 ft. by Monday morning.  Lake Mead water levels are the trigger for incremental rationing under a 2007 agreement between the Upper Basin states of Colorado, Utah, and Wyoming, and the thirstier Lower Basin states of Arizona, California, and Nevada. read more

Lewis and Roca represented Hualapai Valley Solar LLC in hearings on January 12-13 before the Arizona Power Plant and Transmission Line Siting Committee. At the conclusion of the hearing, the committee voted unanimously to approve a new 340 MW solar power plant to be built about 30 miles north of Kingman, Arizona. This project addressed the issue of water usage by thermal solar plants by working with the City of Kingman to purchase the City's effluent for use by the plant, thereby reducing the amount of groundwater needed. read more

EnviroMission (USA) Inc., the Phoenix-based subsidiary of the Australian company EnviroMission Ltd., already has a few parcels under option in La Paz County and recently received an initial approval from the Southern California Public Power Authority ("SCPPA").  The company plans to construct a plant in Arizona that will generate electricity using "solar tower" technology.  This new technology, described here, essentially heats air near ground level using a greenhouse effect and then funnels it into a huge tower as it rises, driving wind turbines.  Unlike photovoltaic and concentrating solar, the solar tower does not require any water and can operate at night and on cloudy days since it is powered by radiant heat rather than direct sunlight. read more

The Greenbuild 2009 International Conference and Expo opened on Wednesday at the Phoenix Convention Center.  An annual event organized by the U.S. Green Building Council, Greenbuild is the largest convention of its kind, with over 20,000 attendees and exhibitors expected this year. read more

Renewable energy developers using technologies that consume large amounts of water are finding it more difficult to obtain the necessary water rights and approvals for their projects. read more

Alfredo Alonso, lobbyist, and Garrett Gordon, land use attorney, in the Lewis and Roca office in Reno, Nevada, recently obtained final land use approvals for an 80-acre environmentally conscious business and industrial park called the "Village Green Commerce Center". read more