Water Rights – Water Policy Consulting LLC

Ten Tribes Partnership Takes a Seat at the Table for Colorado River Management

The Colorado River basin is home to 26 federally recognized tribes in seven western states. Despite their long-standing rights to about 20% of the water that flows through the Colorado, many tribes are excluded from water management decisions and don’t benefit from basic water infrastructure and a secure supply of clean, safe water. The Ten Tribes Partnership is taking a seat at the decision-making table by building capacity among tribes to claim their right to water, establishing water leases, and helping restore the river’s health. Drawing upon a spiritual mandate to “ensure that this sacred water will always be protected and available” the tribes are working to “advance sustainable water management through collaborative decision-making.”

Arctic Refuge Oil Leasing Approved, Now Come the Legal Battles

Under the Trump administration, the 1.5 million-acre arctic plain on the northern edge of the Arctic National Wildlife Refuge is now open for drilling. Next up, a call for oil lease sale nominations and industry and public comment of at least 30 days, followed by a notice of the lease sale.

Home to imperiled polar bears, the vast and far-ranging Porcupine Caribou herd, countless nesting birds, and the Gwich’in Indian Nation, this is America’s last great wilderness. After a forty-year battle to prevent oil extraction on the refuge, the announcement was a blow, but that may not be the end for this pristine ecosystem.

Opponents believe that the process for approval of drilling was rushed for political reasons resulting in a flawed and inadequate analysis of the environmental impacts in violation of the National Environmental Policy Act. In addition, they claim the approval is contrary to prohibitions on killing or harassing of polar bears under the Endangered Species Act and Marine Mammal Protection Act, and the protection of indigenous subsistence food-gathering rights under the Alaska National Interest Lands Conservation Act. Vast lakes, rivers and wetlands could be affected by drilling in the Coastal Plain through water quality impacts and mining and road building related to needed infrastructure.

Similarly, the Gwich’in Steering Committee which represents members of the Gwich’n Athabascan tribes located on both sides of the Canadian/Alaskan boarder, argues that approval of drilling violates a 1987 treaty that gives the Canadian Government oversight authority into the management of the Porcupine Caribou herd. According to Arctic Today, Steering Committee Executive Director Bernadette Demientieff the “administration has done nothing but disrespect the Indigenous peoples that have occupied these lands. Our ways of life, our food security, and our identity is not up for negotiation. The fight is not over…”^[1]

Due to the impacts of COVID-19 resulting in less transportation, which in-turned caused a drop in oil processes, oil and gas companies’ interest in drilling in remote and difficult conditions of Arctic Plain has been waning. So it remains to be see whether there will be any bids submitted on the leases. Moreover, oil-tax initiative on the ballet in Alaska in November, Ballot Measure 1 would impose a 10 percent base tax on production form large North Slope oil fields and eliminate production tax credits. And finally, major banks, Goldman Sachs, JPMorgan Chase, Citigroup and Wells Fargo, have declared that they will not finance any development in the refuge. So the fights to save the Arctic Coastal Plain is not over yet.

Trump Administration Adopts Navigable Waters Protection Rule

Last month the Environmental Protection Agency and Army Corps of Engineers announced the signing of a new water rule which finalizes the Trump administrations process for revising the definition for the Waters of the U.S. According to the EPA, the final “Navigable Waters Protection Rule…protects the nation’s navigable waters from pollution and result in economic growth across the country.” The new rule, however, limits the number and types of waters that are protected by the Clean Water Act to just four categories: territorial seas and traditional navigable waters, perennial and intermittent tributaries, certain lakes, ponds, and water impoundments, and wetlands adjacent to these categories.

The new rule, therefore, eliminates existing protections for water coming from rainfall, groundwater, farm, roadside and other ditches, prior converted cropland, farm and stock watering ponds, and waste treatment systems which are hydrologically connected to navigable waters and could therefore spread pollutants on to such waters. The NWPR, leaves intact, state and tribal laws in managing water resources within their own jurisdictions some of which have broader definitions than the federal government for waters that come under such regulatory jurisdiction.

To Learn more see the EPA’s Navigable Waters Protection Rule website or News Release.

U.S. Supreme Court Tells Alaska Moose Hunter to “Rev Up Your Engine!”

The U.S. Supreme Court, recently, ruled in favor of John Sturgeon who sued the National Park Service in 2007, after rangers on the Yukon-Charley Rivers National Preserve told him he could not use a hovercraft for hunting moose on the Nation River near the Canadian border. While the Park claimed it had jurisdiction to manage navigable waters inside park boundaries, the state which which allows hovercrafts, joined in the law suit and maintained that it had the right to manage waters within the state including those of such rivers.

When in the Spring of 2019, the U.S. Supreme Court made it’s decision it concluded that, for the purposes of the Alaska National Interest Lands Conservation Act, the Nation River does not qualify as “public land” and, therefore, that the park service does not have authority to regulate Sturgeon’s activities on that part of the river found within the preserve. According to the Court “[t]hat means Sturgeon can again rev up his hovercraft in search of moose.”

Despite worries from tribal interests, that the Sturgeon litigation would reverse decades of legal precedents for federal subsistence fishing rights in Alaska, the Katie John case was kept intact by a single footnote buried in the middle of the 46-page ruling which stated that the Katie John is “not at issue in this case, and we therefore do not disturb the Ninth Circuit’s holdings that the Park Service may regulate subsistence fishing on navigable waters.” As a result, immediately after the ruling was issued, the Alaska Federation of Native’s largely supported the decision stating “[o]ur Board previously approved two principles related to the case: private landowner’s access to – and use of – inholdings within conservation system units; and no net loss to subsistence rights. This ruling accomplishes both.”

In apparent agreement with AFN, Alaska’s congressional delegation said that the Court upheld “promises made to Alaskans in ANILCA” limiting the NPS rights over state and native lands and praised the decision for not over turning Katie John.

The decision could also impact other rivers in the state which could be interpreted as navigable waters and therefore, under the state, rather than the federal jurisdiction. Concurring opinions from Justices Sonia Sotomayor and Ruth Bader Ginsburg pointed out that the majority decision raises uncertainty about what remains of the park service’s authority over navigable waters in Alaska’s parks.