THE LAWSON FILE: OUT WEST THE ISSUE IS WATER

Water and the lack thereof is a big issue out west.

Joan McCarter, a researcher of Western politics writes:

"Water in the West has become like the weather, everybody talks about it but nobody does much about it. The political hot potato has become no less cool, though definitely less violent, since farmers and ranchers squared off over a century ago. "

Said Lawrence MacDonnell, co-author of "A New Western Water Agenda," a policy report from Western Progress, "More and more, we are seeing a realization across the West that the conservation and sustainability of water is essential to our future."

Denise Fort, the other co-author of the report and a professor at the University of New Mexico Law School adds, "The status quo simply won't work. We must find new ways to decrease our use of the limited water supply we face in the West."

In New Mexico, a state court recently backed a historic western tradition which holds that those who use the water first can't suddenly be denied the water later...a ruling that flies in the face of developer interests."

In North Idaho residents with questions about the controversial process of sorting out who owns what water rights are being invited to a series of town hall meetings next week. Idaho is about to embark on a massive adjudication – a court process to document who holds valid water rights and who doesn't.

The state of Washington is moving in a similar direction, as both it and Idaho are concerned about their shared drinking source, the massive underground Spokane-Rathdrum Prairie Aquifer.

Las Vegas, just about the fastest growing places around, says it desperately needs more water. So its made plans for a 285-mile pipeline to tap the aquifer that stretches from Salt Lake City to Death Valley and take the water south...to the resort mecca.

There is just one problem. Utah wants to build a pipeline on Lake Powell to suck up Colorado River water and send it northward to growing desert communities.

"Eventually, though," writes the Salt Lake Tribune, "...the outcome of this tale of two pipelines, begun with an agreement struck 86 years ago to share the Colorado and now groaning under rapid population growth and climate distress, could shake the foundations of Western water law.

But wait, there are these Indians who don't also want a say.

It seems they are insisting on being be heard. Fermina Stevens, spokeswoman for the Elko TeMoak Band of the Western Shoshone said the Bureau of Indian Affairs in January signed an agreement that the tribe wouldn't oppose the Snake Valley drawdown. But the BIA - part of the Interior Department, which is managing the Snake Valley environmental analyses - didn't talk to the tribes first.

"The Western Shoshone people have always asserted Nevada is ours," Stevens said. "It never has been legally ceded to the United States. Except the United States is not willing to recognize that, of course."

Ona Segundo, chairwoman of the Kaibab Band of Paiutes in Pipe Spring, Ariz., said they were surprised to learn the Lake Powell pipeline would cut through their reservation. After the tribe objected, engineers working for Utah and the Federal Energy Regulatory Commission moved the alignment on the map. But that doesn't mean the tribe can't weigh in on the issue, she says.

The truth is there just isn't going to be enough water to go around to continue with the over development of our western states which has been progressing along as if nothing could stop it.

The report from Western Progress mentioned above from bluntly and simply states:

"Throughout the West it is increasingly difficult to find water sources that are not already committed to another use. Most rivers have been dammed to capture high flows and to recapture water for subsequent use. Ground water has been tapped at rates well beyond the ability of aquifers to recharge, so water levels have dropped and associated surface water has declined. Alteration of aquatic systems for water development has caused extinction of species of fish, and others are in jeopardy. The West is approaching a zero-sum game in which the benefits of developing additional water are offset by the losses."

Dan Whipple writes at the blog New West its time for a change:

"Most of the water in the West belongs to the individual states. But they simply turned it over it to the first people who showed up asking for it and have never looked back. State laws governing water allocations have been virtually unchanged since the Earps took out the Clantons."

So, speaking of change, what are the guys running for President thinking about this.

John McCain ought to have a lot to say...coming from Arizona and all. He claims to be the candidate who understands the issue.

McCain has said that he has several principles he would apply to the issue of water rights. First, existing water rights should be respected and protected. Second, any modifications to the allocation of water supply should be negotiated among the affected stakeholders to ensure just and proper outcomes. Third, to the maximum extent possible, water rights disputes should be resolved in state and local courts that can recognize and protect all legitimate claims, rights and authorities. Fourth, any necessary mediation of water rights disputes must recognize applicable law, involve all affected local communities, and ensure that water is used responsibly, sustainably, and for maximum public benefit.

I'm not sure he is saying anything, are you?

He fails to mention the actual problem of declining availability of water and what to do about it out in his neck of the woods.

Let's check out a McCain vote.

Since the early 1990s, scientists have warned that ground water pumping by the burgeoning communities near the Army's Fort Huachuca threatens to dry up the San Pedro. Yet when McCain faced a crucial vote in 2003 about whether to protect the San Pedro River or assure the long-term presence of Fort Huachuca and its high-desert boom towns, The Washington Independent notes McCain voted to save the base. At the river's expense, McCain voted to exempt the fort from a key provision of the Endangered Species Act.

And I'll bet McCain surprised his state's residents when he told a crowd in Michigan recently Great Lakes states are right to protect their water from dry regions such as his home state of Arizona.

Sen. Obama probably never gave the whole "water" issue much thought at all. This is reflected by the fact that its damn hard to find anything he has to say related to the subject.

Obama says he would create a federal level "problem solving initiative." Boy, that is getting down and dirty isn't it. He also speaks of developing "partnerships to nourish a healthy environment and sustain a vibrant economy." Does anyone have a guess as to what that might mean. Obama says he would encourage voluntary water banks, waste-water treatment, and "other market based measures."

Somehow the hope that the "market" will save the west doesn't comfort me.

The following is from the Albuquerque Journal.

Domestic Wells No Longer A Given

A state court this week threw out New Mexicans' longstanding legal right to drill a domestic water well without having to worry about whether it would leave less water for their neighbors.

The ruling is a victory for activists who say that uncontrolled domestic well drilling poses a long-term threat to New Mexico's ability to manage its dwindling water supples. But the details of how the ruling will affect developers who rely on domestic wells to supply the homes they build is unclear, experts said Friday.

The automatic right to a domestic well, Judge J.C. Robinson of the Sixth Judicial District Court in Silver City concluded, conflicts with the historic Western principle, written into the New Mexico constitution, that the first users of water in a region have the highest priority water rights.

That historic Western water right usually means that, if you want to move into an area and start using water, you need to prove that your use will not leave less water for the people who were there first.

But New Mexico law has long had what Consuela Bokum, a Santa Fe water activist, called "a big loophoole."

Under a 1950s-era state law, small wells drilled to supply water for your own home were exempt. If you wanted to drill one, you had to file an application with the Office of State Engineer, the state's water management authority. But the State Engineer was required by law to approve it, without checking to see if the well would take water away from older water users in the area.

At the time the law was passed, the impact was minimal compared to the time required for State Engineer staff to review each well permit.

Over the years, the number of domestic well permits has grown to between 7,000 and 8,000 per year, according to State Engineer John D'Antonio. As a result, the domestic well permit loophole has been a hot spot in New Mexico water politics over the last decade.

This week's ruling came in a case bought by Horace and Jo Bounds, descendants of a family that has been farming along the Mimbres River near Silver City for four generations. The Boundses and their attorney, Las Cruces lawyer Steve Hernandez, could not be reached for comment Friday.

The Boundses sued the State Engineer, arguing that the process that granted wells to be drilled to supply water to new houses in the region were reducing the water they were legally entitled to.

Under state law, if the developers had diverted water from the Mimbres River, the State Engineer would have been required to review the diversion to make sure it did not violate the Boundses' water rights. If it did, the application could be turned down. But the law also required domestic wells to be issued regardless of their effect.

Robinson's ruling does not prohibit domestic permits. But it does require the State Engineer to conduct a review before issuing a domestic well permit to make sure the well will not harm other higher-priority water rights holders. In the case of the Boundses, it does not throw out previously issued permits, but requires future permits to be reviewed for their effects on prior water rights.

That could include both nearby well users and irrigators who use water from rivers and streams. Groundwater pumping generally decreases surface water flows.

The need to conduct a full water rights review for each of the 7,000 to 8,000 well permits submitted each year would pose an enormous increase in workload that the State Engineer's staff is not prepared to handle, D'Antonio said.

The next step in the case is a decision about whether the Office of State Engineer will appeal. That decision will not happen until next week at the earliest. In interviews Friday, D'Antonio and State Engineer chief counsel D.L. Sanders said they find themselves in a delicate position on the question of an appeal because they largely agree with the judge's ruling, despite having been on the losing side.

D'Antonio said he has been trying to warn state officials for some time that the domestic well rule was probably unconstitutional, but efforts to create a legislative fix for the problem have repeatedly failed.

Bokum, director of the Water Project for 1000 Friends of New Mexico, a group concerned about the state's growth, said the decision is a welcome legal recognition of the reality of New Mexico's water future.

"We don't have unlimited water in the state, and we're at the point where we can't afford to allow people to go stick holes in the ground if there's not an adequate water supply," Bokum said.