Rules, courts, chemicals
Rules on paper and rules in practice. Courts in between.
Welcome to Western Water Notes.
I’ve got another news roundup this week. I’ll have some original reporting next week and a few posts coming out soon that should be of interest. Stay tuned. First: A couple of words in this edition on the Nevada Supreme Court reviewing yet another important water rights case.
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In 2024, there is still so much we do not know. The news this week puts that reality in a stark relief. We have rules and policy goals on paper with many uncertainties about how they work in reality, how they are enforced and what authorities regulators have. Much of this, it seems, ends up going to court. Then there are questions about what we put out into the environment, and grappling with the long-term consequences.
We ask these questions even as we learn about the invisible processes that shape the environments around us — like what dictates how much snow makes it into rivers?
The news this week only made me want to ask more questions, perhaps as it should.
1/ A few weeks ago, I wrote for InsideClimateNews about the fight over a limited water supply in Clayton Valley and the energy transition. The valley is home to the nation’s only active lithium mine. That mine is owned by Albemarle, a chemical company that extracts the lithium from brine stored in a groundwater aquifer under Clayton Valley.
But other companies are waiting in the wings to mine there — and prove (potentially) less environmentally costly methods — if they are allowed the water. Here’s the thing: Albemarle claims it has the water rights to basically all the water in the aquifer. Other companies, angling for a share of the water, dispute their claims. Why? Albemarle and its predecessors have not historically used all their Clayton Valley water — and water law has a “use it or lose it” provision. It’s an anti-speculation provision, meant to stop people from holding onto water rights as a speculative asset, thereby blocking others from using them. Now this is where things get really interesting. State regulators can issue exemptions if they show they are making progress toward putting water to use.
Since the water permits in question were issued, Albemarle has received more than a dozen such exemptions, known as extensions of time. So its competitor, Pure Energy Minerals (which is working with oilfield services giant SLB on its own lithium project) took Albemarle to court in 2017. After lots of legal and administrative back-and-forth, a state court judge issued a ruling this year denying the latest extension of time. The lower court ruled the state should not have issued Albemarle the latest exemption.
This month, Albemarle and the state’s top water regulator appealed to the Nevada Supreme Court, which again is in the position of deciding an important water rights question with far-reaching consequences. How long can you hold onto water rights? What do you need to prove to be eligible for exemptions from the “use it or lose it” rule? I know it all sounds a bit technical, but this could have real-world consequences, and I’d expect more than one amicus briefs from some of the state’s major water users.
It gets to a key question: How should state regulators enforce their water laws?
2/ In California, farmers are suing state officials over their enforcement of landmark groundwater regulations, the Associated Press reported earlier this week. Last month, the State Water Resources Control Board moved the Tulare Basin in the San Joaquin Valley into probationary status, putting the state, rather than the local community, in charge of regulating how groundwater is being used (and overused). SJV Water’s Lisa McEwen has more on Kings County Farm Bureau’s lawsuit, which alleges the state overstepped in a way that “is arbitrary, capricious, and lacking in evidentiary support.”
3/ Speaking of groundwater, the “Biden administration is moving forward with new permitting guidance to curb pollution that moves through groundwater in response to a landmark Supreme Court ruling,” E&E News’ Miranda Wilson reports. The move comes after the U.S. Supreme Court’s Maui decision in 2020. The court ruled that if pollutants move through groundwater, they can require a Clean Water Act permit if it has the “functional equivalent” of a direct discharge into lakes or rivers considered to be “navigable waters.” But as you can probably tell from my description, there is a lot of technical language at play and lots of ifs. As is the case with the Clean Water Act, different administrations have offered different definitions about its enforcement.
4/ And we are only beginning to learn the extent to which manmade chemicals and plastics are in our waterways (and bodies). For ProPublica and The New Yorker, Sharon Lerner wrote a gripping and chilling account of a 3M scientist who was convinced by executives that “forever chemicals” were safe. This is a stunning story, and horrifying at parts, recounting what 3M knew and when about these chemicals that are now so ubiquitous in drinking water and throughout our environment. Forever chemicals are everywhere, but they are not alone. Microplastics are being found in every part of the human body that investigators look for them. This week, the L.A. Times reported on a study showing microplastics in the male reproductive organs of humans and dogs.
5/ Turning to a separate type of investigation, scientists are working to learn more about how water gets to us in the first place. Many streams and rivers in the West rely on snowpack. But in some years, a lot of that snowpack does not make it into these water bodies as runoff. Scientists are trying to figure out where it goes. They want to know what portion is lost to “sublimation,” a process by which snow turns into water vapor before melting. It’s a very difficult thing to measure, but knowing that could help water managers better understand how much water is available and plan accordingly. KUNC’s Alex Hager has more on the recent sublimation study.
6/ How much snowpack actually gets to any given stream or river is always a major question facing the Colorado River, where negotiators are figuring out how to share water on a river where there is not enough to go around. A drier April has already dimmed hopes of a big water year, as the Arizona Republic’s Brandon Loomis reports. As water managers look to see how much water there will be for next year, they are also negotiating a plan for the river over the next several years, with key operating rules set to expire at the end of 2026. Those negotiations are between the seven basin states, 30 Native American tribes and Mexico — and this podcast, which I highlighted last week, gives a good behind-the-scenes look at how the seven states operate, as well as the many divisions between them. I’d also recommend this KJZZ piece by Gabriel Pietrorazio about how tribes, which have rights to about one-fifth of the river, are negotiating on the Colorado River — after being left out of talks for many decades.
7/ After nearly a decade of lobbying the federal government, the Walker River Paiute Tribe in Nevada received the last piece of funding needed to build a $12 million domestic water project, The Nevada Current’s Jeniffer Solis reported. “In total, the project will provide a comprehensive domestic water supply distribution system for more than 100 residences on the reservation,” Solis wrote in a story earlier this week. “Andrea Martinez, the chair of the Walker River Paiute Tribe, said the tribe hopes to complete the project in a little over two years. The project will secure clean drinking water, and expand the tribe’s capacity to add new homes on the reservation.”
8/ A Sacramento Bee analysis showed state and federal pumps at the Sacramento-San Joaquin Delta killed more than half a million Chinook salmon and 50,000 steelhead trout since 2022. This comes with more eyes on the pumping. Reporter Ari Plachta writes: “In this rare year of average rainfall, scrutiny of the pumps underscores a perennial tension baked into California’s water delivery system: The more water pumped out of the beleaguered Delta, the harder the hit to beleaguered fish.”
A photo from this week
This is a great time of year. Enjoy it!
Until next time,
Daniel
Recently slb gradiant announced the pemif mine direct lithium extraction will operate on 100% water reuse. The water returning to ground meets regulations.