By Hal Shepherd
Where I come from, water wars are nothing new. Most often, such conflicts result from the time-honored tradition of western state water management agencies to hand out water rights like candy, even though most of the rivers and streams in the Lower 48 are already well over appropriated.
What makes the recent battles over water in the western United States more interesting, however, is that what had, heretofore been the political stronghold that farmers, ranchers and other agricultural interest have had over the use of water, has given way to the fleets of lawyers and lobbyists retained by the energy industry.
The Utah Division of Water Rights, for example, hardly blinked when it recently approved a water right to divert up to 24,000 acre feet per year from the Green River, a tributary to the water beleaguered Colorado River, to develop a nuclear power plant.
Signs that energy development on the West Slope has become the new 800-pound gorilla in the room, however, are not just that the issuance of such massive water rights seems out-of-step with the changing face of western hydrological systems and common sense, but that those who are most affected by such actions will be agricultural interests. Because Utah, for example, is on the verge of hitting its limit under the Colorado River Water Rights Compact, large, new water-right diversions from the river may ultimately cause state water courts to cut off existing water users in Utah who represent, mostly, agricultural interests.
If you think such scenarios are unique to the arid and highly populated southwestern United States, you should know about the Alaska Department of Natural Resource’s recent approval of Temporary Water Use Permit to Buccaneer Alaska. The permit authorizes the withdrawal of up to a combined total of 50,000 gallons of water per day from three wells located about 20 miles east of Homer.
Similarly, DNR issued another TWUP to Buccaneer to withdraw up to 11,000 gallons of water per day from a well outside Kenai for oil and gas drilling activity. Why the approval of the Buccaneer TWUP seems to reincarnate the “We have never seen a water right application we don’t like” attitude of Lower 48 water managers is the fact that, before issuing a TWUP, the Division is supposed to make sure that the amount of water is not “significant.”
Aside from the obvious question, therefore, that “If 50,000 or 11,000 GPD of water is not significant, what is” the Division is not supposed to approve a TWUP if this would “adversely affect the water rights of other appropriators or the public interest.”
The most relevant public interest implications of land-based oil and gas drilling is exposure of drinking and other water uses to chemicals used in the fluids, and the drilling process, and that are present in drilling operation waste-waters, resulting in toxicity and potential human health effects.
Yet, the real evidence that Alaska has inherited the water woes previously considered to be in the realm of the less fortunate “Outside,” is the potential water rights conflicts with residents living near the proposed drilling operations like Buccaneers; especially if such residents retain water rights or may have submitted water right applications with earlier priority dates then the Buccaneer TWUPs.
If so, this would be in direct contrast to the law of prior appropriation that appears in the Alaska Water Use Act and may affect other rights recognized in Alaska, including the general reservation of surface and subsurface waters for fish and game and the protection of due process under the constitution and the Public Trust Doctrine.
Indeed, several of these issues have been raised in a law suit filed by a group of citizens who applied for instream water rights under the AWUA they argue are needed to protect salmon habitat in the Chuitna River. After the state put the instream flow water rights on the back burner, stating it did not have staff resources to process the applications, it seemed to have no difficulty issuing a TWUP to the PacRim Coal Company to drill six groundwater monitoring wells as part of developing a coal mine within the River.
Is that an 800-pound Gorilla I see over in the corner?
Hal Shepherd is the director of the Center for Water Advocacy; a nonprofit organization that focuses on water resource matters in Alaska.
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