I disagree with one part of the legal opinion expressed by Dunn. Because the pumpers of brackish water would be attempting to take advantage of an exception to State Engineer jurisdiction, I believe they would bear the burden of proving they fell within the exception. And, because you're dealing with formations and hydrological connections that are 1000s of feet deep, this would be a very expensive proposition. I also believe that the term "aquifer" has many possible definitions, and therefore, the Courts should defer to the State Engineer's reasonable definition of the term. The State Engineer can and should define "aquifer" as broadly as scientifically reasonable, to assure protection of existing water rights.
Bruce Frederick
h2olaw
· 1 year ago
Mr. Frederick,
I understand your view that the burden of proof would be on the applicant in a normal water appropriation of waters that fall under the SE's jurisdiction. However, this is a different situation, I believe that you are relying on the fact that this water would be a public water under 72-12-1 and Spencer v. Bliss, In re Houston, in which the burden on the applicant to show no impairment. In contrast, these deep non-potable are excepted from consideration as waters subject to application by 72-12-25. Therefore, the only recourse for either a private party or the SE aggrieved by the pumping of deep non-potable water is to file a lawsuit in district court under 72-12-28. Remember there is no application process for these waters, therefore no hearing or determination by the SE, there is only a Notice of Intent by the taking party. So the burden of proof actually falls on the moving party of the lawsuit (whether that is the state or private) to make a prima facie case of harm.
And actually aquifer is a fairly certain term. There is not really any reason to hash the definition of aquifer, which remains in both the legal and geologic sense fairly certain. The more pressing question is whether or not these aquifers or underground basins in the legal sense rise above 2500 feet or if they are hydrologically connected to an overlaying aquifer such that appropriation might lead to impairment. I don't know that we need to give the SE anymore leeway to define terms as expansively as he can to exert his control. But that becomes a political argument about the powers of the executive versus the legislature or the judiciary.
My understanding of history is also that it was Reynolds' view that if the aquifer goes above 2500 feet that it falls under the SE's jurisdiction, but again we are back to the argument of burden of proof.
I agree that some determination of how to handle this loophole should be address and the SE should closely examine the hyrologic conditions surrounding these wells.
As to the feasibility of the projects well that remains to be seen, 500 million raised for a desal plant seems like a stretch for most investors to get behind but that also remains to be seen.
Finally, it seems illogical to pursue such an expensive alternative when by the SE's own admission (last week on the radio) we allowing 400,000 acre feet to evaporate largely due to reservoir storage. JMNLO (Just my non-legal opinion)
A. Blair Dunn WaterBank Chief Legal Officer
greenman
· 1 year ago
I agree with Mr. Frederick, the burden of proof should be on the potential exploiter of this previously unidentified water source. We have technology (proven), policy (tested) and common sense (questionable at times) that allows us to live within our means should we choose to do what is sustainable, not mine a resource that costs more to produce than the benefits gained.
h2olaw
· 1 year ago
Thats wonderful that you agree with him. It doesn't change the law.
All Comments
Bruce Frederick
I understand your view that the burden of proof would be on the applicant in a normal water appropriation of waters that fall under the SE's jurisdiction. However, this is a different situation, I believe that you are relying on the fact that this water would be a public water under 72-12-1 and Spencer v. Bliss, In re Houston, in which the burden on the applicant to show no impairment. In contrast, these deep non-potable are excepted from consideration as waters subject to application by 72-12-25. Therefore, the only recourse for either a private party or the SE aggrieved by the pumping of deep non-potable water is to file a lawsuit in district court under 72-12-28. Remember there is no application process for these waters, therefore no hearing or determination by the SE, there is only a Notice of Intent by the taking party. So the burden of proof actually falls on the moving party of the lawsuit (whether that is the state or private) to make a prima facie case of harm.
And actually aquifer is a fairly certain term. There is not really any reason to hash the definition of aquifer, which remains in both the legal and geologic sense fairly certain. The more pressing question is whether or not these aquifers or underground basins in the legal sense rise above 2500 feet or if they are hydrologically connected to an overlaying aquifer such that appropriation might lead to impairment. I don't know that we need to give the SE anymore leeway to define terms as expansively as he can to exert his control. But that becomes a political argument about the powers of the executive versus the legislature or the judiciary.
My understanding of history is also that it was Reynolds' view that if the aquifer goes above 2500 feet that it falls under the SE's jurisdiction, but again we are back to the argument of burden of proof.
I agree that some determination of how to handle this loophole should be address and the SE should closely examine the hyrologic conditions surrounding these wells.
As to the feasibility of the projects well that remains to be seen, 500 million raised for a desal plant seems like a stretch for most investors to get behind but that also remains to be seen.
Finally, it seems illogical to pursue such an expensive alternative when by the SE's own admission (last week on the radio) we allowing 400,000 acre feet to evaporate largely due to reservoir storage. JMNLO (Just my non-legal opinion)
A. Blair Dunn
WaterBank
Chief Legal Officer