Blog of law articles

(BY HUGO)

An article by Rachel Waldholz from High Coutry News, «Water fallout: Utah's first nuclear plant won't float without water rights», illustrates the growing competition for scarce water resources resulting from growing energy demand.

Contrary to the water quality challenges raised by hydraulic fracturing on the East Coast, the issue in this instance is quantitative apportionment between users.

The developers of a projected nuclear power plant need to secure the water rights for the use of 50,000 acre-feet/year - enough water to supply up to 100,000 homes - to cool the reactors of the proposed 3,000 megawatt plant, which would produce enough electricity to power nearly 3 million households.

As Rachel Waldholz writes, securing these water rights in a prior appropriation jurisdiction for nuclear energy production would result in the following situation:

«If more water is taken from the river, the agencies may not be able to keep stream flow high enough to protect several species of rare and endangered fish, says Wayne Pullan of BuRec's Provo office.

And if the Green River drops, Blue Castle [the project developer] would have early rights to what remains: While San Juan's rights are junior (2001), Kane County has 1964 rights to 29,600 acre-feet. That places it ahead of many rights holders, including the BuRec's Central Utah Project, which supplies water to much of the Wasatch Front. Pullan says that in a drought, calls from such senior rights could short the project's users -- including Salt Lake City.

This is part of a much larger tangle. If Utah develops just 360,000 more acre-feet of Colorado Basin water, it will hit its limit (1.4 million acre-feet) under the Colorado River Compact. But it has handed out paper rights to an additional 1.1 million acre-feet. All those rights holders, like Kane County, still have the right to develop. But Utah will have no excess water to supply them, and so water will be rationed by priority date across the state. In that context, Blue Castle's request is nothing to sniff at -- it's a seventh of the water Utah has left.

At times, the Blue Castle proposal looks like a water right in search of a project. Kane County has five more years to prove it is putting its water rights to "beneficial use," or risk forfeiting them, according to Mike Noel, executive director of the Kane County Water Conservancy District.»

This situation provides an illustration for many prominent legal issues in current water management:

- How to make more flexible legal frameworks for apportionment between users that require stable and secure access to water in the context of growing hydrological variability and uncertainty due to drought or climate change? In this context, the inter-state allocation of fixed quantities of water through Compacts or Supreme Court adjudications appears very rigid and difficult to adapt to a constantly changing environment. Another related question is the chronological hierarchy of water rights under prior appropriation: is it really appropriate to favour energy production over drinking water provision in case of drought simply because the water right used for energy production was created before? Regulated riparianism offers an alternative whereby water rights can be prioritised in statutory provisions according to the type of use regardless of the moment the rights were created;

- How to protect environmental flows and the components of aquatic ecosystems in hydrological systems characterised by scarcity and «full or close to full» water allocation? In this respect, prior appropriation has been abundantly described in legal doctrine as a disincentive to environmental protection due to the beneficial use requirement which can be seen at work here.