Sherman & Howard L.L.C.’s Post

Maloy, Estes, Lamborn, Fulcher, and Biggs reintroduce legislation to protect private water rights. Article by Utah Policy Excerpts: "According to the Utah Constitution, the water in the state belongs to the people of Utah. Unfortunately, federal agencies have a long history of undermining our water laws by requiring co-ownership of water rights as a condition for permit agreements on federal lands. I’m proud to lead my colleagues in sponsoring this bill which clarifies that states have the power to allocate water rights, and the federal government can’t infringe on that ability,” said Rep. Maloy." "The bill would: - Forbid the Departments of the Interior and Agriculture from mandating water users transfer water rights to the United States or purchase water rights in the name of the United States as a condition of any permit, lease, or other use agreement. - Prevent unlawful seizures of groundwater. - Recognize state water law and require coordination with states." Link to full article: https://lnkd.in/gvaZ6tn5 Link to full text of legislation: https://lnkd.in/gm3cXZUQ

Our latest #IdahoWaterLaw Update from Maximilian Bricker delves into legal disputes over water rights in the Eastern Snake River Plain Aquifer (ESPA). Covering pending matters like the Surface Water Coalition's call for curtailment, an ongoing moratorium on new water appropriations, and the formation of a groundwater management plan, it outlines the complexities surrounding water usage, potential economic impacts, and ongoing legal battles within the ESPA. This is a general overview of various issues that affect the interests of water users located within the boundaries of the ESPA. All of the administrative matters described relate to the Idaho Department of Water Resources’ view that it must increasingly regulate existing junior ground water rights, and prevent new consumptive uses, to avoid injury to senior surface water rights due to perceived declines in the ESPA. Somach Simmons & Dunn attorneys represent the interests of the City of Pocatello in legal matters including, but not limited to, those described in the article. Read the full story: https://lnkd.in/gyDvfJpS #SomachLaw cc Sarah Klahn

IN LITIGATION NEWS: The uptick in climate-related disasters - droughts, fires, floods etc. - has CA courts seeing, and preparing for, a consistent increase in related litigation. More, here. #californialaw #environmentallaw #climatelaw #climatelitigation

During the California Gold Rush of the 1800s, the legal use of surface water became increasingly complicated as miners claimed natural springs and rivers as their own under the "first-in-time, first-in-right” rule, also known as Prior Appropriation. In the West, many states still operate under a version of Prior Appropriation which says that the one who has first claim to the water source is the one who first used it, regardless of where the water source is located. This is in stark contrast to Riparian Rights which is more common in Eastern states where surface water is more abundant. This says that the landowner whose land is adjacent to the water source has first claim to its use. As clean water is increasing in value as a resource, many are staking their claim to a clean water source for longevity. And the first step in learning about using surface water is learning about how to do it legally. Read on to find out how you can secure water for yourself the right way. Check it out: https://lnkd.in/g8qqrPGk #homesteading #selfreliance #selfsufficiency #Offgrid #waterislife

Mark S. Davis, Research Professor and Director, Institute on Water Resources Law and Policy, Reflects On The Sackett v. EPA Supre Court Decision. "When Congress passed the Clean Water Act, America was facing a watery ecologic and public crisis. It knew narrow laws and locally driven stewardship efforts had failed and it set about to put something better in its place, something that would give the nation waters that were safe to swim and fish in. Congress knew it would require the development of governmental, scientific and technical expertise and for years that approach commanded bipartisan support and a cooperative and deferential judiciary. It was messy, but by-and -large it worked. What it wasn't was precise, which is what the Supreme Court took issue with. The Sackett decision is important because it made clear that wordsmithing and narrowing the reach of government are the lenses that the order of the day. In short, the Sackett Court ruled that if Congress wanted the law to do more it should have said so. The trouble with that is that no one in Congress knew that 50 years ago—or even a year ago. The result may be a clearer reading of the Clean Water Act but one that defeats its purpose. Important water resources that were protected 5 months ago are not protected today. States like Louisiana that depended on federal law and federal partners to help manage and protect those waters and wetlands don't have those today and the prospect for them to fill the gaps are iffy to nil. To top it off, the new reading of an old law—not one word of which has changed—won't eliminate the sorts of jurisdictions disputes that were at the heart of the Sackett case, it will just shift the battle lines. This is the new law of the land but before all is said and done it is likely that we will be reminded of why the old way was needed."

As America's western frontier expanded, so did the need for water rights. Colorado's constitution, in Article XVI, Section 7, established a unique private right of condemnation for water conveyance structures, allowing property owners to transport water across intervening lands, even if they aren't adjacent to a water source.   But there are limits. The recent “CAW Equities” case set a precedent by applying the "prior public use" doctrine to Section 7. This means that existing public uses cannot be extinguished through condemnation. Courts and legislatures are also tightening regulations on private condemnation rights.   This article from attorney Ryan Mitchell delves into the complexities of Colorado's private condemnation laws, using CAW Equities as an illustrative example. It explores the procedures involved, the importance of proper negotiation, and the need for compelling evidence to justify condemnation.   If you're involved in water rights, land development, or property law in Colorado or beyond, understanding these evolving legal dynamics is crucial. Read the full article to stay informed on the intricate world of private condemnation proceedings: https://lnkd.in/gDsuJu4q #SomachLaw #WaterLaw #ColoradoLaw

In the latest episode of Digging Into Land Use Law, Nossaman’s Brian Ferrasci-O'Malley and John O'Meara explore the Department of the Interior’s proposed rule to change the way agencies evaluate injuries to natural resources at contaminated sites and how much restoration will cost. #DiggingIntoLandUseLaw

Last week's Department of Interior announcement of the proposed cuts for Colorado River Basin states is representative of the truly uncharted waters (pun intended) of what's to come. For an excellent analysis of the legal dynamics and why this is all so complex, check out Quinne Daoust's latest blog for The American Security Project below. #security #legal #climatesecurity #climatechange #water #nationalsecurity

Yesterday, on Feb. 13, 2024, the governor signed the first of several water-rights-related bills discussed in this year’s legislative session. This particular bill, Senate Bill 39 (S.B. 39), provides that a water company has 120 days to respond to any shareholder change application. Last year, that number of days was cut in half for temporary change applications, however, after further collaboration, it was determined that more time was needed for companies to respond. (S.B. 39 - Water Shareholder Amendments bill was sponsored by Senator Scott D. Sandall, District 1; and Representative, and Majority Assistant Whip, Casey Snider, District 5.) As a result, the number of days allowed for companies to respond on temporary change applications will once again be 120 days. To follow legislative activities affecting water rights and the Utah Division of Water Rights, go to https://le.utah.gov/ and look up "water rights." Pictured below: Teresa Wilhelmsen, Utah State Engineer and Director of the Division of Water Rights, participates in this the 2024 Utah Legislative Session. #utah #utleg #utahlegislativesession #waterrights #utwaterrights #government #stategovernment