Search

Water rights and their associated infrastructure support human needs and wants, from agriculture to drinking water to industrial uses, but also impose significant external costs, including impacts on infrastructure, ecosystems, food production, and other human uses. In some cases, these costs can be partially abated through careful flow management, physical habitat improvement, and other direct actions, but mitigation requires funding and dedicated water, both of which typically are in short supply. Some state water rights allocation systems include consideration of the public interest when deciding whether to grant a water right, but even water rights that pass a public interest test could impose significant external costs. Current approaches do not adequately address the external public costs associated with water withdrawals, leading to over consumption of water and subsequent loss of the goods and services provided by intact water systems. Current approaches also raise distributive concerns, in that those paying the price of water development do not reap most of the benefits. In this article, I argue that the exactions framework, long used by local governments to manage or mitigate public costs associated with a particular land use, offers a better approach for water rights permitting. Local governments that issue discretionary permits for land use changes often condition the permits on exactions, either the dedication of land or the payment of funds to offset public costs associated with the land use change. Other authors have argued for applying the exactions framework to climate change and to the energy demands of new developments. Here, I make the case that imposing water rights exactions would improve water right permitting by: (1) internalizing the public costs of water withdrawals; (2) producing fairer, more efficient outcomes for other water users and ecosystems; (3) mitigating existing distributive concerns; (4) allocating dedicated funding and water for management of public costs associated with water rights, and (5) allowing regulators to condition water use with requirements and restrictions that might be a taking outside of the exactions context.

This article is the first in a series to provide information related to commonly used technical methodologies in furtherance of legal rights held by American Indian Tribes. Specifically, this article discusses the method for estimating water rights necessary to protect instream habitat to support fish. Unlike reserved water rights for irrigation — which has the well settled practicably irrigable acreage (“PIA”) standard — the United States Supreme Court has not identified a single quantification methodology appropriate for traditional uses of water. Instead, lower courts have fashioned a more ad hoc approach to quantifying traditional reserved water rights. This seems preferable given that unlike irrigation water rights, which are fairly uniform in their nature, each tribe’s traditional uses of water are unique and driven by the physical, historical, and cultural factors present for each tribe. Although the method for quantifying these rights have evolved over time, courts have slowly converged on the Instream Flow Incremental Methodology ("IFIM") and its component part, the Physical Habitat Simulation Model (“PHABSIM”). Although the IFIM/PHABSIM method does not enjoy the de jure recognition of its sister-methodology PIA, the consistent use and acceptance of this method have caused it to become the de facto method for quantifying reserved instream water rights to protect fish habitat. The purpose of this article is to provide an explanation of the IFIM/PHABSIM methodology in an effort to put practitioners in the position to apply and, where necessary, critique the method. It proceeds in a chronological fashion; describing from beginning to end the steps necessary to develop a reserved instream water right claim using the IFIM/PHABSIM method.

Senate Bill 3 emerged from the Texas Legislature in 2007 as an attempt to create certainty over how the state deals with allocating water to environmental flows. Senate Bill 3 created a process in the Water Code requiring regional stakeholder groups (referred to as Basin and Bay Area Stakeholder Committees or BBASCs) to develop consensus-based environmental flow standards and strategies to meet the environmental flow standards specific to the rivers and bay systems in a particular region. The concept of “environmental flows” describes the flows of water necessary to protect the ecological health of rivers and of the bays and estuaries that are the ultimate recipients of these flows. The consensus of the scientific community is that for environmental flow standards to be adequate to support a sound ecological environment in a stream system, they must include minimum subsistence flows, varying levels of base flows, high flow pulses, and overbank pulses that vary throughout the year. Environmental flow standards establish requirements that govern when a water right holder may remove water from a stream or a river (instream flow requirements), thus protecting that water for instream and bay or estuary environmental needs. The Water Code directs the Texas Commission on Environmental Quality (TCEQ), after considering the stakeholder committees’ recommendations, to adopt environmental flow standards “adequate to support a sound ecological environment, to the maximum extent reasonable considering other public interests and other relevant factors.” This paper summarizes the environmental flow standard and strategy recommendations made by the six stakeholder committees that submitted reports to the TCEQ and compares these to the standards the TCEQ ultimately adopted. The adopted standards only apply to permits seeking a new appropriation of water or to an amendment to an existing water right that increases the amount of water authorized to be stored, taken, or diverted.

This paper examines the U.S. Supreme Court decision in Montana v. Wyoming; it discusses the doctrine of recapture; it argues that efficiency improvements in use of water for irrigation are within the scope of the water right.

Water markets in the western United States have expanded over the last 40 years driven by two forces – population growth in the West and Southwest and limited development of new storage projects. Until 2008 house prices, home construction and population growth appeared to be locked in an ever-increasing upward trend. With little historical experience to the contrary, water market prices similarly appeared to be driven by real estate development. The collapse of the housing market in the last three years provides an opportunity to examine the connection between the real estate and water markets.