CHAPTER 2 LEGAL OVERVIEW—CURRENT PROBLEMS IN WATER ACQUISITION

• Jurisdiction: United States

Water Acquisition for Mineral Development
(Mar 1978)
CHAPTER 2
LEGAL OVERVIEW—CURRENT PROBLEMS IN WATER ACQUISITION
Edward W. Clyde
Clyde & Pratt
Salt Lake City, Utah

THE NEED FOR WATER

Significant amounts of water will have to be committed if coal and oil shale are going to play their assigned role in meeting our energy needs. In some areas like the Northern Great Plains area, it appears that Nature will make sufficient water available for energy development, but there are legal constraints, both there and elsewhere which are causing legal shortages. In water short areas, such as Utah, it is unlikely that sufficient water can be developed so that all those who want to develop oil shale and coal could proceed simultaneously. It would be possible to acquire water rights which are presently committed to agricultural uses, but the unappropriated water appears to be inadequate. Thus, in Utah, coal and oil shale may have to be developed sequentially, with the water being used first to mine a particular deposit, and then have the same water right transferred for the development of another one.

The figures generally being used on water needs are that each 1,000 megawatts of power from coal will require about 28 cubic feet of water per second, or 19,000 acre-feet per year. Of this, approximately 14,100 acre feet would be consumed, leaving 4,900 feet of effluent, but the effluent would be highly concentrated in total dissolved solids, and the water would be generally unusable for other purposes. A gasification plant with the capacity of 250,000,000 cubic feet per day of synthetic natural gas will require about 30,000 acre-feet of water per year. Of this, 10,000 acre-feet would be consumed, and 20,000 acre-feet of water of reasonable quality could be returned for other uses.

In the development of oil shale, it is estimated that up to 25 cubic feet of fresh water per second, or approximately 18,000 acre-feet per year would be needed to process 100,000 tons of oil shale per day.

There are several projects which contemplate the transportation of coal from western mines to distant points of use by coal slurry pipelines. One such line is sponsored by Energy Transportation Systems, Inc. (ETSI). It would take coal from an area near Gillette, Wyoming, to Arkansas. This line would be 1,030 miles long. It would transport 25,000,000 tons of coal per year, and would use approximately 15,000 acre-feet of water. This is a significant

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amount of coal. Utah, for example, during the last decade, produced about 8,000,000 tons annually.

Putting a water right together for one of these major projects, almost everywhere in the West, involves a number of important considerations. First, the water supply is needed year around, and must be dependable, even during periods of drought. In agricultural projects we may plan to meet water needs only nine years out of ten, letting the farmer adjust to an occasional shortage. Even municipal systems can curtail use and adjust to occasional shortages, but there may be serious economic problems if one of these large energy plants had to be taken totally out of production for a three or four month period during the dry summer months of a drought period.

PUTTING A WATER RIGHT TOGETHER

Throughout the West, water is administered on a priority basis. If there is enough water for all, everybody receives his appropriated share. If the supply drops, those with late priorities are shut off dry, and those with early priorities get their full supply. During critical periods, only the very early rights receive any water at all. There may be contractual provisions for sharing the water from a large Bureau project, with the shortages within the project being shared among all or various types of uses. However, under the appropriation system, the water is not administered this way.

There are a number of approaches which should be used to meet this particular problem. First, it would be highly desirable to have some stored water. This is a practical necessity, anyway, if the water is to come from a new water project. The firm flow of most western streams is already appropriated. The surface water which is still available for development is only available during the high spring runoff and to provide a year around supply, it must be stored.

This, however, is only part of the problem. On one major stream in Utah, which is heavily used for a wide variety of purposes, we can have a yield during an extremely wet year, of as much as 1,300,000 acre-feet. During extremely dry years, this stream will drop to as low as 200,000 acre-feet per year. Development can approach the average yield, if there is adequate storage, but water must be stored during the wet years, and not fully used every year. It must be carried over from the wet cycles to the dry cycles. The statutes of some states, such as for

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example, Wyoming expressly permit this.¹ Carryover storage is necessary and should be held to be a beneficial use.

Further, the extreme high flows may not be dependably available with sufficient frequency to warrant the expense of constructing carryover storage large enough to store the full supply. Sometimes this can be met through a tie in with other water development projects. Again going to Utah, we have a situation where the Provo River has some extreme highs, which occur only at intervals up to 20 years, and we have not constructed storage which would hold these high flows. They ultimately spill into Great Salt Lake. The Provo River is, however, being tied into the Central Utah Project, which will have a large amount of storage in other reservoirs. This would make it safe to develop municipal, industrial or other uses capable of using the high flow of the Provo River. In normal years and dry years the Provo wouldn't yield enough water to supply these project needs, but during such times this other storage, which is a part of the Central Utah Project, which stores Colorado River water, could be drawn upon heavily. Thus within the Central Utah Project (Bonneville Unit) we probably will develop 98,000 acre-feet of municipal and industrial water annually. However, some years none of that will need to be used, because streams, like the Provo River, can supply total needs. At such times, the M&I water developed by the project would be placed in long-term storage. We then may have a critical drought, like we suffered last year, and instead of drawing on only the 98,000 acre-feet made available to the project, in any one year, we might pull 300,000 to 400,000 acre-feet out of storage to make up the deficiency in the streams like the Provo River, which are in the Bonneville Basin.

I am working on a project in the Great Northern Plains area, where one of the large energy companies has constructed a reservoir with storage capacity of approximately 239,000 acre-feet, with diversion facilities large enough to take most of the available high water from the source. Nevertheless, long range studies suggest that this will only provide a firm supply of about 62,500 acre-feet per year. The balance must be carried over from wet cycles to meet needs during dry cycles.

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Another problem which will confront the developer comes from the fact that if a completely adequate supply of water is developed to meet the needs during a dry cycle, there usually will be surplus water yielded under the rights during normal years and wet years. If these cycles extend for substantial periods of time, and surplus water isn't used, there could be problems of statutory forfeiture for nonuse. A number of the states provide for the issuance of nonuse permits.² I have urged developers to provide beneficial uses for the water during the wet cycles. One way to do this is to acquire irrigated land. During an extremely dry cycle, the land simply isn't planted or produced, and the water is taken to meet the needs of the industrial project. During periods of time when the water rights which are acquired for the project are yielding more water than the project can use, and more than can be held in carryover storage, the surplus is used for irrigation.

The acquisition of irrigated land can perform a second useful purpose. I have indicated above that it is desirable, and in most cases will be necessary, for the project to have some stored water. Historically, however, the early priorities on a stream are not for diversion into storage. The early settlers could meet their needs by direct diversions from the stream. The streams do recede to a low flow in August, but they generally don't go dry. Therefore, the early settlers could get nearly a full supply by direct flow diversions. When the primary flow would no longer meet the needs, storage facilities were developed—but the priority date for storage was junior to many direct flow rights. Over a prolonged dry period, the reservoir can be emptied and its junior priority will not permit diversions to storage in the quantities needed, or at all. When this occurs, it is desirable for an industrial project to have some of the early direct flow rights. These generally have been developed for irrigation. They have to be acquired by purchase. Generally it is easier to purchase the land and the water together. If the land and the water rights thus purchased are substantial, it accomplishes two things: First, the early priority rights to the direct flow provides project water under adverse conditions, and secondly, the land provides a place to use the water when there is water which is surplus to the needs of the project.

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I have used a contractual arrangement between an industrial user and a farmer to good advantage. The industry may have adequate water during normal and wet years. During an extremely dry year, however, it will run short. It can enter into a contract with the farmer, under which it agrees to pay the farmer a sum of money, in return for which the...