Assessment of Water Rights in the Murray Darling and Colorado River Basins

8/11/2019 Assessment of Water Rights in the Murray Darling and Colorado River Basins

1/27

Cause & Effect?: Hoover Dam and Lake Mead on the Colorado River, Arizona/Nevada, U.S.A., with a maximumcapacity of approximately 35 000 Gl the largest reservoir in North America (left) and a dry Colorado River Delta in

the Gulf of Mexico, resulting from complete allocation of Colorado River water resources (right).Source: NASA - The Earth from space (http://earth.jsc.nasa.gov/sseop/EFS/printinfo.pl?PHOTO=STS073-706-24 )

LAW 7160 WATER RESOURCES LAWMAJOR ESSAY

A beneficial use? Water rights, allocation andenvironmental water in the Murray-Darling and

Colorado River Basins.

Aaron Hillier, Student ID 1605238November 2012
http://earth.jsc.nasa.gov/sseop/EFS/printinfo.pl?PHOTO=STS073-706-24http://earth.jsc.nasa.gov/sseop/EFS/printinfo.pl?PHOTO=STS073-706-24http://earth.jsc.nasa.gov/sseop/EFS/printinfo.pl?PHOTO=STS073-706-24http://earth.jsc.nasa.gov/sseop/EFS/printinfo.pl?PHOTO=STS073-706-24


2/27

Mr. Aaron Hillier. LAW 7160 Water Resources Law.Student ID. 1605238 Major Essay.

2

Introduction: A plan for a fragile basin.

On Thursday 22 nd November, 2012, Australian Federal Minister for Sustainability,

Environment, Water, Population and Communities The Hon Tony Burke MP signed the

Basin Plan into law, hopefully ending what can be considered to be more than 100

years of parochial state bickering over allocation and use of water resources in the

Murray-Darling Basin (MDB) and of its principal river, the Murray. 1 More than 5 years in

development - and constituting a complex legislative instrument governing nationally

unified, integrated management of surface-water, groundwater and associated natural

assets within the basin - one of the primary objectives of the Basin Plan 2012 (Cth) is to

protect and restore key environmental and ecosystem functions of the Murray River and

numerous other watercourses within its jurisdiction. 2 In order to achieve this, the Plan

mandates 3 2 750 Gl/yr as a baseline aggregate target for the amount of surface water to

be recovered and returned to the environment basin-wide, and an adjustment

mechanism by which this amount can either be reduced (if the same environmental

outcomes can be realised by using less water more efficiently) or increased to 3 200

Gl/yr. The Federal Government has committed to using this mechanism to supply an

additional 450 Gl/yr for environmental use over 10 years from 2014-2015 through the

proposed Water for the Environment Special Account, South Australia must return 82.8

Gl/yr. NSW and Victoria commit to contribute 458 Gl/yr and 425.3 Gl/yr respectively,reflecting each states historic level of water use. 4

The laws defining water access rights and allocation, and institutional arrangements for

water resource management, local and regional, within any river basin (especially those

encompassing multiple jurisdictions) are both of paramount importance if environmental

water requirements for dependent ecosystems are to be maintained. 5 Of this the

Western United States provides an excellent exemplar. This paper presents a

1 Vidot, A. (2012) Murray-Darling Basin Plan signed into law at last, ABC Rural News [Online]. Last Retrieved Nov24, 2012, from: http://www.abc.net.au/rural/news/content/201211/s3638832.htm 2 MDBA (2009) The Basin Plan: A concept statement, Murray-Darling Basin Authority, Canberra, ACT: Australia. LastRetrieved Nov 12, 2012, from: https://www.mdba.gov.au/basin_plan/concept-statement 3 Basin Plan 2012(Nov.) (Cth) ch 6 pt 2 s 6.04(2), ch 7 pt 2 s 7.09(b, e). Last Retrieved Nov 24, 2012, from:http://www.mdba.gov.au/basin-plan 4 Ibid ch 7 pt 2 s 7.09(e)(note 1,2) & sch 5(1), (2)(a-g), ch 6 pt 2 s 6.05(2)(a-e), (3)(a-e).5 Garrick, D., Lane-Miller, C. & McCoy, A.L. (2011) Institutional Innovations to Govern Environmental Water in theWestern United States: Lessons for Australias Murray-Darling Basin, Economic Papers, Vol. 30 No. 2, 168.
http://www.abc.net.au/rural/news/content/201211/s3638832.htmhttp://www.abc.net.au/rural/news/content/201211/s3638832.htmhttp://www.abc.net.au/rural/news/content/201211/s3638832.htmhttps://www.mdba.gov.au/basin_plan/concept-statementhttps://www.mdba.gov.au/basin_plan/concept-statementhttps://www.mdba.gov.au/basin_plan/concept-statementhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttps://www.mdba.gov.au/basin_plan/concept-statementhttp://www.abc.net.au/rural/news/content/201211/s3638832.htm


3/27


3

comparison of the legal regimes governing water rights and allocation within the Murray-

Darling Basin and the Colorado River Basin (CRB) in the American Southwest,

highlighting the arrangements for environmental water provision established under each

for these important river basins facing similar future water challenges.

1. Water in the Murray-Darling & Colorado River Basin: The impact of development.

Figure 1 and table 1 depict the major geographical features and list key environmental,

social, economic and water resource (including consumptive use) data for the Murray-

Darling and Colorado River Basins. 6 Upon examination it can be seen that notable

similarities and differences exist with respect to these features in the two catchments.

Both drain large inland areas and transcend multiple state jurisdictions, the CRB

incorporates a national boundary also. In each case the primary river systems traverseregions characterised by aridity, highly seasonal and variant flow regimes and cycles of

recurring drought. Annual mean aggregate runoff is comparable, 24 300 Gl in the MDB

and 23 500 Gl in the CRB. Colorado River flows arise primarily through spring runoff

from melting winter snowfalls in mountain plateau areas of Upper CRB states, for

Murray River flows the contribution of alpine of melt-water is much lower. Accordingly,

flows in the Colorado River are highly variable, both seasonally and annually, ranging

from 15 000 to 30 000 Gl/yr with 70% occurring in May, June and July. However, the

river is almost completely allocated: most years its delta is dry with no outflow reaching

6 Sources:MacDonald, D. & Young, M. (2001) A case study of the Murray-Darling Basin: Final Report for the InternationalWater Management Institute, CSIRO, Canberra, ACT: Australia, 8-14. Last Retrieved Nov 18, 2012, from:http://www.clw.csiro.au/publications/consultancy/2001/MDB-IWMI.pdf Overton, I.C., Colloff, M.J., Doody, T.M., Henderson, B. & Cuddy, S.M. (2009) Ecological Outcomes of Flow Regimesin the Murray-Darling Basin, CSIRO, Canberra, ACT: Australia, 5. Last Retrieved Nov 18, 2012, from:http://www.csiro.au/Portals/Publications/Research--Reports/Ecological-Outcomes-of-Flow-Regimes-Report.aspx MDBA (2012a) About the Basin, [Online]. Last Retrieved Nov 18, 2012, from: http://www.mdba.gov.au/explore-the-basin/about-the-basin NRC (2007) Colorado River Basin Water Management: Evaluating and Adjusting to Hydroclimatic Variability,Committee on the Scientific Bases of Colorado River Basin Water Management, National Academies Press,Washington DC: U.S.A, 1-19.Pontius, D. (1997) Colorado River Basin Study: Final Report to the Western Water Policy Review AdvisoryCommittee, SWCA, Inc. Environmental Consultants, Tucson, Arizona: U.S.A., 2-17. Last Retrieved Nov 18, 2012,from: http://repository.unm.edu/bitstream/handle/1928/2782/COLORADO.pdf?sequence=1 Productivity Commission (2003a) Water Rights Arrangements in Australia and Overseas: Annex G, CommissionResearch Paper, Productivity Commission, Melbourne: Australia, 1-3. Last Retrieved Nov 18, 2012, from:http://www.pc.gov.au/__data/assets/pdf_file/0018/8523/annexg.pdf
http://www.clw.csiro.au/publications/consultancy/2001/MDB-IWMI.pdfhttp://www.clw.csiro.au/publications/consultancy/2001/MDB-IWMI.pdfhttp://www.csiro.au/Portals/Publications/Research--Reports/Ecological-Outcomes-of-Flow-Regimes-Report.aspxhttp://www.csiro.au/Portals/Publications/Research--Reports/Ecological-Outcomes-of-Flow-Regimes-Report.aspxhttp://www.mdba.gov.au/explore-the-basin/about-the-basinhttp://www.mdba.gov.au/explore-the-basin/about-the-basinhttp://www.mdba.gov.au/explore-the-basin/about-the-basinhttp://www.mdba.gov.au/explore-the-basin/about-the-basinhttp://repository.unm.edu/bitstream/handle/1928/2782/COLORADO.pdf?sequence=1http://repository.unm.edu/bitstream/handle/1928/2782/COLORADO.pdf?sequence=1http://repository.unm.edu/bitstream/handle/1928/2782/COLORADO.pdf?sequence=1http://www.pc.gov.au/__data/assets/pdf_file/0018/8523/annexg.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0018/8523/annexg.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0018/8523/annexg.pdfhttp://repository.unm.edu/bitstream/handle/1928/2782/COLORADO.pdf?sequence=1http://www.mdba.gov.au/explore-the-basin/about-the-basinhttp://www.mdba.gov.au/explore-the-basin/about-the-basinhttp://www.csiro.au/Portals/Publications/Research--Reports/Ecological-Outcomes-of-Flow-Regimes-Report.aspxhttp://www.clw.csiro.au/publications/consultancy/2001/MDB-IWMI.pdf


4/27


4Table 1. Water resource and usage, environmental, economic and social data for the Murray-Darling and Colorado River Basins.

Figure 1. Geographic maps of the Murray-Darling & Colorado River Basins depicting Basin States and major river systems.Wetlands of international importance are indicated in the MBD, primary water storages and diversion facilities in the CRB.

Colorado River Basin Murray-Darling Basin

Drainage area (km 2) andBasin state coverage.

703 132Wyoming, Colorado, Utah, New Mexico (Upper Basin)

Arizona, Nevada, California (Lower Basin)One international boundary (Mexico).

1 061 469South Australia, Victoria, Queensland, New South

Wales, Australian Capital Territory.No international boundaries.

Rainfall (mm/yr) Highly variable. From 170 in Southern arid

region to 1000 in Northeast alpine.1950-1999 basin average: 354

Highly variable. 300 in Northwest semi-arid region to 1400 in Southeast alpine.

1895-2006 basin average: 457

Climate Range ( OC) Highly variable. Alpine North & Northeast,arid central & Southwest, semi-arid South.

Summer: 25 41, Winter -12 9

Highly variable. Sub-tropical Northeast,alpine Southeast, semi-arid Northwest.

Summer: 12 33, Winter -3 15

Vegetation Type77% desert, 12% dryland, 11% alpine forest.

Native vegetation approximately 5-10%90% mixed dryland, 10% forest

Native vegetation approximately 20%Irrigated Cropland Area (ha) Approximately 1 620 000 Approximately 1 300 000

Mean Runoff (Gl/yr) 23 500 24 300

Current Extractions (Gl/yr)Surface water: 19 700Groundwater: 4 200

Surface water: 13 600Groundwater: 1 830

Principal River & Length (km) Colorado and Green river system.total length 3 509

Murray-Darling river system.total length 3 780

Total reservoir Storage Capacity (Gl)Approximately 74 000 Approximately 35 000

Basin Population (no. persons) Approximately 12 700 000 Approximately 2 000 000

Potable Water Supply to (no. persons) Approximately 30 000 000 Approximately 3 200 000

Gross Economic Output Value (Au$/yr) Greater than 12.5 billion. Greater than 16 billion.

Sites of International Importance 1 World Heritage 16 Ramsar, 1 World Heritage

National Parks (no. & total area, ha) 11 National Parks, 5 625 056 52 National Parks/Reserves, 4 583 704

Indigenous Reserves 34 Indigenous Reservations. None, but 42 Indigenous Nations in MDB.


5/27


5

the Gulf of Mexico. Mean annual outflow of the Murray-Darling River system is

downwards of 11 000 Gl, prolonged periods of drought in the south of the MDB (as

experienced between1997-2006) can reduce this to below 9 000 Gl.

Both basins suffer large losses from seasonal evaporation and growing anthropogenicextractions for agricultural, domestic and industrial uses. Large-scale storage or

diversionary infrastructures have been constructed in each to regulate river flows and

supply consumptive water users, this is especially evident in the CRB. If compared to

other world rivers of similar size and level of exploitation and management, the

Colorado River has by far the largest dependent population and industrial base. Census

figures demonstrate that approximately 30 million people now rely on the Colorado

River for some or all of their water needs due to recent population growth in the arid

Western United States, an increase of 6.5 million since 1990. 7 The river has been

labeled the American Nile as it is among the most regula ted, legislated, debated

and litigated in the entire world. 8

Figure 2 9 clearly demonstrates one of the major problems to have emerged in the MDB

and CRB, following white settlement and rapid expansion of agricultural and industrial

activities from the mid-19 th century onwards. Development of basin water resources,

coupled with reduced runoff volumes due to climate change forcing increased droughtfrequency and severity, has promoted a water deficit in the CRB where demand has

exceeded supply since 2003 (figure 2, left). Similar conditions in the MDB often result in

over-allocation, with 60 to 80% of all available surface water resources extracted (figure

2, right). Consumptive water use across the basin has lowered average annual stream-

7 Cohen, M.J. (2011) Municipal Deliveries of Colorado River Basin Water , Pacific Institute, Oakland, California:U.S.A., 36. Last Retrieved Nov 19, 2012, from: http://www.pacinst.org/reports/co_river_municipal_deliveries/ 8 Reisner, M. (1990) Cadillac Desert: The American West and Its Disappearing Water, Secker & Warburg, London:U.K., 15.9 Sources:CSIRO (2008) Water Availability in the Murray-Darling Basin: A report from CSIRO to the Australian Government,CSIRO, Canberra, ACT: Australia, 6, 33. Last Retrieved Nov 19, 2012, from:http://www.csiro.au/Outcomes/Water/Water-for-the-environment/WaterAvailabilityInMurray-DarlingBasinMDBSY.aspx USBR (2011) Colorado River Basin Water Supply and Demand Study: Interim Report No.1, United States Bureau ofReclamation, U.S. Department of the Interior, Boulder City, Nevada: U.S.A., 7. Last Retrieved Nov 5, 2012, from:http://www.usbr.gov/lc/region/programs/crbstudy/report1.html
http://www.pacinst.org/reports/co_river_municipal_deliveries/http://www.pacinst.org/reports/co_river_municipal_deliveries/http://www.pacinst.org/reports/co_river_municipal_deliveries/http://www.csiro.au/Outcomes/Water/Water-for-the-environment/WaterAvailabilityInMurray-DarlingBasinMDBSY.aspxhttp://www.csiro.au/Outcomes/Water/Water-for-the-environment/WaterAvailabilityInMurray-DarlingBasinMDBSY.aspxhttp://www.csiro.au/Outcomes/Water/Water-for-the-environment/WaterAvailabilityInMurray-DarlingBasinMDBSY.aspxhttp://www.usbr.gov/lc/region/programs/crbstudy/report1.htmlhttp://www.usbr.gov/lc/region/programs/crbstudy/report1.htmlhttp://www.usbr.gov/lc/region/programs/crbstudy/report1.htmlhttp://www.csiro.au/Outcomes/Water/Water-for-the-environment/WaterAvailabilityInMurray-DarlingBasinMDBSY.aspxhttp://www.csiro.au/Outcomes/Water/Water-for-the-environment/WaterAvailabilityInMurray-DarlingBasinMDBSY.aspxhttp://www.pacinst.org/reports/co_river_municipal_deliveries/


6/27


6

Figure 2. 10-year running average water supply and demand in the CRB for the period 1923-2007 (left) andtotal integrated flow, total effective surface water use and relative level of use in the MDB for the period

1895-2005 (right).

flow at the Murray mouth in South Australia by 61%. Other problems arising from

human exploitation in both basins include impaired water quality due to contamination

from agricultural and urban runoffs, increasing rates of sedimentation and sediment

transport due to land use change and native vegetation clearance, and rising in-

stream/dryland salinity from irrigated agricultural practices. 10

Associated environmental effects are significant. An independent audit of 23 sub-catchments within the MDB found only 3 to be in good-moderate condition ecologically,

20 were classified as either poor or very poor. Exceptionally low flows through the

Ramsar-listed Coorong and Lower Lakes near the mouth of the Murray River have

resulted in widespread drying of wetlands, changed flooding regimes also threaten

many other important wetlands and floodplains across the MDB and the biodiversity

contained therein. 11 The Hoover, Glen Canyon and numerous other dams on the

10 Newson, M. (2009) Land, Water and Rivers in the Developed World, in Land, Water and Development:Sustainable and Adaptive Management of Rivers, 3rd Edition. Newson, Malcolm L. [Ed.], Routledge, New York:U.S.A., 101-102, 127-128.11 Davies, P.E., Harris, J.H., Hillman, T.J. & Walker, K.F. (2008) Sustainable Rivers Audit Report 1: A Report on theEcological Health of Rivers in the Murray-Darling basin 2004-2007, Prepared by the Independent Sustainable RiversAudit Group for the Murray-Darling Basin Ministerial Council, Murray-Darling Basin Commission, Canberra, ACT:Australia, 47-333. Last Retrieved Nov 10, 2012, from:http://www.mdba.gov.au/sustainable-rivers-audit/assets/pdf/SRA_Report_1_tech_full.pdf
http://www.mdba.gov.au/sustainable-rivers-audit/assets/pdf/SRA_Report_1_tech_full.pdfhttp://www.mdba.gov.au/sustainable-rivers-audit/assets/pdf/SRA_Report_1_tech_full.pdfhttp://www.mdba.gov.au/sustainable-rivers-audit/assets/pdf/SRA_Report_1_tech_full.pdf


7/27


7

Colorado River fragment it both physically and biologically. Spring flood flows are

smaller and releases from the dams higher and more uniform during the remainder of

the year, water is much colder than naturally and starved of sediment and nutrients

downstream. Hundreds of kilometres of levees separate the Colorado River from its

floodplain, reduced flows have eliminated natural flooding in many other CRB

watercourses. This has severely damaged the habitat of many native species evolved to

thrive in what was originally a sediment rich, free flowing aquatic environment: 5% of

Colorado River endemic fauna are now extinct, a further 32% currently classified as

endangered. 12 In addition many bird species are threatened through loss of riparian

habitat, competition from invasive species also poses a serious problem to native flora

and fauna in both the Colorado River and Murray-Darling Basins. The impacts of either

less than adequate or modified environmental water regimes are already apparent ineach instance, and could serve to undermine long-term water security if environmental

flows are not protected or restored.

2. Australian water law reform: A platform for environmental preservation.

Effectively, the Basin Plan 2012 (Cth) illustrates one important outcome of 30 years of

Australian water governance reform, arguably beginning with the Murray Darling Basin

Agreement 1987 . Amended 1992, the Agreement was a pronounced shift from prior

inter-governmental arrangements attempting to balance extractive use and

environmental preservation. Although it established the Murray Darling Basin Ministerial

Council (MDBMC), Murray-Darling Basin Commission (MDBC) and Community

Advisory Committee, entities designed to better address the broad range of political,

community, productivity and environmental interests under the Agreement, they proved

incapable of resolving many of the major challenges that threatened environmental

sustainability and resource security in the MDB. It has been suggested this was due to

the requirement that any decisions made by the MDBC depended upon the unanimous

approval of all involved governments. 13 In 1994 the Council of Australian Governments

12 Adler, R.W. (2007) Retaking Old Ground, in Restoring Colorado River ecosystems: a troubled sense of immensity ,Adler, Robert W. [Ed.], Island Press, Washington DC: U.S.A., 5-7.13 Connel, D & Grafton, R.Q. (2008) Planning for Water Security in the Murray-Darling Basin, Public Policy, Vol. 3No.1, 69.


8/27


8

(CoAG) agreed to a Water Reform Framework Agreement resulting in a limit on MBD

consumptive water use (the cap) and conversion of existing water access rights into a

tradable property right separate from land title, forming the foundation of water markets

in each jurisdiction and driving more efficient water allocation and use within them.

Greater change was manifest during the second phase of reforms under the

Intergovernmental Agreement on a National Water Initiative (NWI) 2004 . Forming a

necessary foundation for continued national water reform, the NWI aimed to achieve

a nationally -compatible, market, regulatory and planning based system of managing

surface and groundwater resources for rural and urban use that optimises economic,

social and environmental outcomes .14 Overseeing direction of the NWI is the Natural

Resource Management Ministerial Council, with the National Water Commission

responsible for advising CoAG on its implementation.

Passed by Commonwealth Parliament in 2007, the Water Act 2007 (Cth) set down a

detailed statutory regime for regulating water allocation and use of Australias water

resources, delivered the urgent requirement of centralised governance across inter-

jurisdictional catchments such as the MDB, and promulgated the Basin Plan 2012 (Cth).

The development basis, purpose and mandatory content of the Plan are all governed by

statutory requirements under the Water Act 2007 (Cth). It is to achieve its purpose in amanner that is consistent with the objects of the Act, enabling the Commonwealth and

Basin State Governments (Qld., S.A., N.S.W., Vic., A.C.T.) to co-operatively and

cohesively manage MDB water resources in the national interest while giving effect to

relevant international agreements 15 (namely legally binding treaty obligations, imposed

under hard-law instruments such as the Ramsar Convention on Wetlands of

International Importance). 16 The Act sets out components that must be included in the

14 Intergovernmental Agreement on a National Water Initiative 2004 between the Commonwealth of Australia andthe Governments of New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory andthe Northern Territory s 23. Tasmania and Western Australia joined the Agreement in 2005 and 2006 respectively.Last Retrieved Nov 15, 2012, from: http://www.water.wa.gov.au/PublicationStore/first/82387.pdf 15 Water Act 2007 (Cth) s 3, 20.16 UN (1971) Convention on Wetlands of International Importance especially as Waterfowl Habitat , Ramsar (Iran), 2February 1971. UN Treaty Series No. 14583. As amended by the Paris Protocol, 3 December 1982, and ReginaAmendments, 28 May 1987. In force 21 December 1975.
http://www.water.wa.gov.au/PublicationStore/first/82387.pdfhttp://www.water.wa.gov.au/PublicationStore/first/82387.pdfhttp://www.water.wa.gov.au/PublicationStore/first/82387.pdfhttp://www.water.wa.gov.au/PublicationStore/first/82387.pdf


9/27


9

Basin Plan 2012 (Cth), 17 including specific basin-wide Water Trading Rules, a Water

Quality and Salinity Management Plan, Socio-economic Impact/Implications Analyses,

Monitoring, Reporting and Evaluation requirements and, in terms of water security and

environmental considerations the most innovative and important content, Sustainable

Diversion Limits and an Environmental Watering Plan. These define, respectively, a

quantified, ecologically sustainable annual level of extraction for consumptive use of

MDB water resources and detailed planning guidelines for environmental water

provision within the MDB, with basin-wide objectives to safeguard existing, and recover

additional, volume for water-dependent ecosystems.

Legislative requirements of the Environmental Watering Plan are defined within the

Basin Plan 2012 (Cth). 18 This represents legal recognition of a water right for the

environment to sufficient volume to maintain ecological value and function of freshwater

aquatic ecosystems at an acceptably low risk level, as determined from scientific

research or application of local knowledge: otherwise known as environmental flows. 19

The importance of environmental water is further highlighted by development of

statutory guidelines in order to establish priority for environmental water deliveries, 20 the

only statutory guideline being prepared for the Plan at this time. 21 Section 28(2)(e) of the

Water Act 2007 (Cth) requires the Environmental Watering Plan include ...principles to

be applied and methods to be used to determine priorities for applying environmental

water, set out at ch apter 8 part 6 in the Basin Plan 2012 (Cth).

Importantly, the Act culminated in a decision between the Commonwealth and Basin

States to sign the Intergovernmental Agreement on Murray-Darling Basin Reform 2008 .

Implemented through the Water (Amendment) Act 2008 (Cth) 22 establishing a legal

obligation for complementary state-level legislation, this Agreement serves to

17 Ibid s 22(1-3),( 6a), s 23-28, pt 2 div 4 sdiv A, pt 2A18 Basin Plan 2012(Nov.) (Cth) ch 6, 819 Gardner, A. (2006) Environmental Water Allocations in Australia , Environmental Law Reporter, 36 ELR 10319-21.20 MDBA (2012b) Statutory guidelines for the method to determine priorities for applying environmental water,Murray-Darling Basin Authority, ACT: Australia. Retrieved Nov 24, 2012, from :http://www.mdba.gov.au/basin-plan 21 Transmittal letter from MDBA Chair Craig Knowles to The Hon Tony Burke MP, Federal Minister forSustainability, Environment, Water, Population and Communities, 21 November 2012. Last Retrieved Nov 24,2012, from: http://www.mdba.gov.au/basin-plan 22 See Water Act 2007 (Cth) sch 1 Intergovernmental Agreement on Murray-Darling Basin Reform 2008 .
http://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-planhttp://www.mdba.gov.au/basin-plan


10/27


10

improve planning an d management by addressing the B asins wate r and other

natural resources as a whole, in the context of a federal- state partnership. 23

Amendments to the Water Act 2007 (Cth) abolished the MDBC and installed a federal

agency, the Murray-Darling Basin Authority (MDBA), to oversee management of MDB

water resources. Powers vested in the MDBA are considerable: appraisal of any or all

relevant MDB water management objectives including initiation and supervision of

investigations, planning and operation of dams and impoundments, monitoring/co-

ordination of water quality and related studies in the River Murray and MDB,

recommendation of water quality standards for state adoption and issuance of revised

water allocation provisions and recommendations to any government agency or tribunal

on any matter that may affect the quantity or quality of MBD water resources. 24

The reforms described reflect direct action by the Commonwealth to assert its legislative

powers and establish a national approach to water resources governance, certainly the

Commonwealth now has greater authority to supplement, and even supplant, the

authority of established state jurisdictions in implementing water and environmental

development policies. Significantly, responsibility for water access rights and internal

water allocation under the reformed regime is still vested in states due to their plenary

legislative powers over natural resources, but within Commonwealth imposed limits. 25

Despite the Federal system and increased Federal power in the MDB not having the

complete support of all parties involved, government or otherwise, some benefits are

undeniable. Positive outcomes are certainly evident from an environmental perspective.

The political and institutional changes required to facilitate the recent shift towards

integrated water resource management (IWRM) and whole-of-catchment scale

integrated river basin management (IRBM) have arisen as a direct result of the reform

23 Intergovernmental Agreement on Murray-Darling Basin Reform 2008 between The Commonwealth of Australia;The State of New South Wales; The State of Victoria; The State of Queensland; The State of South Australia; andThe Australian Capital Territory preamble s 10. Last Retrieved Nov 16, 2012, from:http://www.coag.gov.au/sites/default/files/Murray_Darling_IGA.pdf 24 Feldman, D.L. (2007) U.S. and International Water Resource Management Efforts: Legacy and Lessons, in WaterPolicy for Sustainable Development, Feldman, David L. [Ed.]., Johns Hopkins University Press, Baltimore: U.S.A., 82.25 Kildea, P. & Williams, G. (2010) The Constitution and the management of water in Australias rivers, Sydney LawReview, 32 SLR 602.
http://www.coag.gov.au/sites/default/files/Murray_Darling_IGA.pdfhttp://www.coag.gov.au/sites/default/files/Murray_Darling_IGA.pdfhttp://www.coag.gov.au/sites/default/files/Murray_Darling_IGA.pdf


11/27


11

process. These approaches promote stakeholder engagement, and policy development

and planning based on knowledge of natural systems. 26 Early initiatives such as the

Living Murray Program, aimed at restoring necessary environmental flows to 6 icon

sites identified as being most degraded, marked an improvement in policy in terms of

declining river health in the MDB. 27 Later, and in addition to the legislative provision and

protection of environmental water now specified in the Basin Plan 2012 (Cth), the Water

Act 2007 (Cth) and Water (Amendment) Act 2008 (Cth) fostered the $12.9 billion

Commonwealth Water for the Future Program (to recover environmental water through

water rights acquisition, irrigation efficiency projects and water information/infrastructure

investments) and established the Commonwealth Environmental Water Holder (CEWH,

a federal entity created specifically to oversee management and distribution of

environmental water secured through these measures). 28 Continued reduction of naturalflows in the MDB due to ever-increasing consumptive use extraction may have resulted

had this legislation not been enacted, with serious consequences for the unique

ecosystems and biodiversity of the catchment.

3. Water rights & allocation in the Murray-Darling & Colorado River Basins: Contrasts.

In all of the state jurisdictions within the MDB and CRB (see table 1), the English

common law Riparian Doctrine was originally applied to water resources. 29 During the

gold rushes of the 1850s in the Western United States, the practical need of miners for

rules governing the allocation of water in the absence of definitive guidance from federal

or state legislatures promulgated a new legal system: the Doctrine of Prior

Appropriation. Water was considered to be a public resource in jurisdictions with

appropriative rights. Individuals could claim usage rights (an appropriation) upon

demonstrating beneficial use, initially defined as the application of water for mining and

agricultural purposes. The date of the appropriation determined usage priority to

26 Feldman, D.L. (2007) Water and Sustainability: Facing the Challenges, in Water Policy for SustainableDevelopment, Feldman, David L. [Ed.]., The Johns Hopkins University Press, Baltimore: U.S.A., 3.27 Connel, D. & Grafton, R.Q. (2011) Water Reform in the Murray Darling Basin, Water Resources Research, 47 WRR3,4.28 Water Act 2007 (Cth) pt 6 div 1, 2 pt 11 div 2. 29 Productivity Commission (2003b) Water Rights Arrangements in Australia and Overseas, Commission ResearchPaper, Productivity Commission, Melbourne: Australia, 39. Last Retrieved Nov 2, 2012, from:http://www.pc.gov.au/__data/assets/pdf_file/0006/8457/waterrights.pdf
http://www.pc.gov.au/__data/assets/pdf_file/0006/8457/waterrights.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0006/8457/waterrights.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0006/8457/waterrights.pdf


12/27


12

Table 2. Vesting of water rights in the State for jurisdictions within theMurray-Darling Basin.

available water, earlier appropriations having seniority. Arguments that prior

appropriation was a necessity in arid regions proved compelling to courts and led to the

establishment of this doctrine as the primary means by which Western U.S. states

allocate and administer property rights in water. 30

By the late 19 th century, replacement of existing regimes (riparian or appropriative) with

statutory systems had begun. In Australia, early statutes provided a foundation for

public water resource management with rights to use and control vested in the State, in

the U.S. statutes were enacted to give legislative recognition to appropriative rights and

govern administrative procedures for water appropriations. 31 Current legal frameworks

for water resource governance in the MDB and CRB are the product of statutory

modification of the common law Riparian Doctrine and Doctrine of Prior Appropriation

respectively. Governments have powers provided by legislation to issue water rights,

determine the allocation of water resources and regulate their use, differences inherent

in each system having significant implications for environmental water preservation.

3.1 Current arrangements for water rights and allocation: Murray Darling Basin.

In all jurisdictions within the MDB

except South Australia the right to

the use, flow and control of bothsurface and groundwater is vested

in the State by statute, in these

states the right to take water is

prohibited by imposition of the

requirement of a licence or other

statutory authority to do so.

Although South Australia does notvest rights over water in the State,

30 Gillian, D.M. & Brown, T.C. (1997) The loss of Instream Flows: A Short History of Water Use and Water Law in theWest, in Instream Flow Protection: Seeking a Balance in Western Water Use, Gilllian, David M. [Ed.], Island Press,Washington DC: U.S.A., 17-27.31 Ibid, 22.

RRiigghhttss aatt ccoommmmoonn llaaww ttoo tthhee ttaakkiinngg oof f nnaattuurraallllyy ooccccuurrrriinngg wwaatteerr aarree aabboolliisshheedd..


13/27


13

the Natural Resources Management Act 2004 (SA) explicitly abolishes rights at

common law in relation to the taking of naturally occurring water. 32 Subject to the taking

of water for domestic purposes or for watering stock, authorisation in the form of a water

license is required to take water from any prescribed water source, 33 approximately 90%

of South Australian surface and groundwater is currently prescribed, including all water

resources within the states MDB region. In addition to government control, there exists

in MDB state jurisdictions statutory recognition of the right to access and use water

resources for specific purposes: stock and domestic, camping and response to

emergencies are examples. A summary of these and the statutory rights granted

administratively to water users by the State is given in table 2 for all jurisdictions within

the MDB. 34

Under the reforms of the NWI discussed previously, water rights granted by MDB state

government resource management authorities under statute take the form of a separate

water access entitlement (or licence, perpetual personal property unattached to land

title), a water allocation (the actual volume of water that the access entitlement holder

is permitted to take in a predetermined period, usually annually) and a water use

approval (pertaining to the conditions of use of the water resource). 35 The relevant

Minister has authority to approve water access entitlements in all jurisdictions, both the

water access entitlement and water allocation are transferable and thus tradable. A

water access entitlement constitutes a share of the available consumptive pool of a

specified water resource as determined by a statutory water resource plan, prepared by

a regional authority for all surface and groundwater resource units in the MDB water

resource plan area in which the access entitlement is issued. 36 Allocation of water to

access entitlements must be consistent with the corresponding water resource plan,

definition as a share of a predetermined available amount ensures sustainability. Water

resource plans must also address environmental considerations through impact32 Natural Resources Management Act 2004 (SA) s 124(8)33 Ibid, s 124(3), 127(1)34 Source: Productivity Commission (2003b) Water Rights Arrangements in Australia and Overseas, CommissionResearch Paper, Productivity Commission, Melbourne: Australia, 70.35 Gardner, A., Bartlett, R. & Gray, J. (2009) Defining Entitlements, in Water Resources Law, Gardner, Alexander W.[Ed.], Lexis Nexis Butterworths, Chatswood, N.S.W.: Australia, 425-427.36 Intergovernmental Agreement on a National Water Initiative 2004 s 28, 36


14/27


14

assessments and contain details of the methods applied for determination, allocation

and delivery of environmental water needs. 37

Whereas the water rights regime is governed solely by state laws in MDB jurisdictions,

enactment of the Water Act 2007 (Cth), Water (Amendment) Act 2008 (Cth) and legaleffect of the Basin Plan 2012 (Cth) requires that regional and state water allocation

planning for (and state legislation establishing the maximum volume of water that may

be extracted from) MDB water resources be consistent with and serve to implement a

federally mandated framework. 38 The Basin Plan 2012 (Cth) sets the long-term average

sustainable diversion limit (the available consumptive pool in Gl/year) for all surface

and groundwater resource units within the MDB, and through its Environmental

Watering Plan the detailed guidelines for environmental water provision. 39 Again,

regional water resource plans must maintain consistency. Provisions of the amended

Water Act 2007 (Cth) also direct the MDBMC to determine the distribution of basin

surface water resources between states within the sustainable diversion limit (for

surface water) specified by the Basin Plan 2012 (Cth), estimated at 10 873 Gl/yr

for the MDB in total, and establish that the Plan set out the operational limits of Tier 1, 2

and 3 interstate water sharing arrangements in the MDB. 40

3.2 Current arrangements for water rights and allocation: Colorado River Basin.

The right to the use, flow and control of surface water, and to a lesser extent,

groundwater in the CRB is vested in the State by statute for all jurisdictions except

California, where ownership of water resources is vested in the people and the

government acts as a public trustee under provision of the California Water Code .41 In

most instances administration of water rights as an individual entitlement to take water

37 Government of S.A. (2008) Water Allocation Plan for the River Murray Prescribed Watercourse: ConceptStatement, South Australian Murray-Darling Basin Natural Resources Mangement Board, Adelaide, S.A.: Australia,s 2(3,6) s 4(2). Last Retrieved Nov 17, 2012, from:http://www.samdbnrm.sa.gov.au/Portals/9/PDF's/Water/River%20Murray%20Concept%20statement.pdf 38 Gardner, A., Bartlett, R. & Gray, J. (2009) The Legal Effect of a Plan, in Water Resources Law, Gardner, AlexanderW. [Ed.], Lexis Nexis Butterworths, Chatswood, N.S.W.: Australia, 421,422.39 Basin Plan 2012(Nov.) (Cth) sch 3,4 , ch 8 pt 1-6.40 See: Water Act 2007 (Cth) pt 2A s 86(D-E), sch 1 pt XII div 1-4

Basin Plan 2012(Nov.) (Cth) ch 6 pt 2 s 6.04(2)41 California Water Code CAL WATER CODE 120-147.5 Last Retrieved Nov 25, 2012, from:http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=00001-01000&file=120-147.5
http://www.samdbnrm.sa.gov.au/Portals/9/PDF's/Water/River%20Murray%20Concept%20statement.pdfhttp://www.samdbnrm.sa.gov.au/Portals/9/PDF's/Water/River%20Murray%20Concept%20statement.pdfhttp://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=00001-01000&file=120-147.5http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=00001-01000&file=120-147.5http://www.leginfo.ca.gov/cgi-bin/displaycode?section=wat&group=00001-01000&file=120-147.5http://www.samdbnrm.sa.gov.au/Portals/9/PDF's/Water/River%20Murray%20Concept%20statement.pdf


15/27


15

remains the sole preserve of the states as set out by the Code of Federal Regulations

(2010) ,42 with some significant exceptions. Federal reserve rights for Indigenous

reservations (public lands) within the territory of CRB states exist outside the jurisdiction

of state water laws and are governed by the Reserved Rights Doctrine, enunciated by

the U.S. Supreme Court in 1908. 43 Applications to activate these rights must still be

made by the Federal Government to the relevant water authority in the reservation

state, in order to register the priority and extraction volume. Use of Colorado River water

in the Lower CRB states (California, Arizona, Nevada) requires an additional supply

contract with the U.S. Bureau of Reclamation (U.S. Federal Department of the Interior)

upon granting of a water right from the state. 44 Contracts entered into for the supply of

irrigation and domestic uses are permanent contracts. In all CRB jurisdictions certain

applications for water rights must be preceded by federal government approval toconstruct necessary infrastructure, granted through issuance of a permit by the United

States Army Corps of Engineers. Finally, water rights applications are considered and

approved by a state authority (usually a water resources control board) throughout the

CRB except in Colorado, where district Water Courts have power of approval. 45

In every CRB state except California, water rights are governed by the Doctrine of Prior

Appropriation modified under statute: Californias legal framework is a combination of

riparian and prior appropriation doctrines, Spanish colonial law, Supreme Court

decisions and constitutional and statutory provisions. All appropriative water rights are

based on a first-possession or senior ity of beneficial use. Beneficial use is legally

defined in all CRB states and includes domestic, municipal, irrigation and other

agricultural, industrial, recreational and, more recently, environmental applications. The

first-in-time, first-in- right r ule of the appropriative water rights regime separates water

users into senior and junior appropriators, depending on the date at which the first

42 Code of Federal Regulations (2010) 43 CFR ch 12.1 383 Last Retrieved Nov 25, 2012, from:http://cfr.vlex.com/source/code-federal-regulations-public-lands-interior-1092/page/3 43 See: Winters vs. United States , 207 US 564 (1908) Last Retrieved Nov 25, from:http://supreme.justia.com/cases/federal/us/207/564/ 44 See: Supreme Court Decree , 376 US 340 (1964) Art II(B)(5) Last Retrieved Nov 22, 2012, from:http://waterplan.state.wy.us/BAG/green/briefbook/lor/lor-11.html 45 Productivity Commission (2003c) Water Rights Arrangements in Australia and Overseas: Annex I, CommissionResearch Paper, Productivity Commission, Melbourne: Australia, 33. Last Retrieved Nov 18, 2012, from:http://www.pc.gov.au/__data/assets/pdf_file/0006/8529/annexi.pdf
http://cfr.vlex.com/source/code-federal-regulations-public-lands-interior-1092/page/3http://cfr.vlex.com/source/code-federal-regulations-public-lands-interior-1092/page/3http://supreme.justia.com/cases/federal/us/207/564/http://supreme.justia.com/cases/federal/us/207/564/http://waterplan.state.wy.us/BAG/green/briefbook/lor/lor-11.htmlhttp://waterplan.state.wy.us/BAG/green/briefbook/lor/lor-11.htmlhttp://www.pc.gov.au/__data/assets/pdf_file/0006/8529/annexi.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0006/8529/annexi.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0006/8529/annexi.pdfhttp://waterplan.state.wy.us/BAG/green/briefbook/lor/lor-11.htmlhttp://supreme.justia.com/cases/federal/us/207/564/http://cfr.vlex.com/source/code-federal-regulations-public-lands-interior-1092/page/3


16/27


16

diversion was made. Those with the earliest water claims (such as Indigenous peoples,

early irrigation districts) have the highest priority (senior) and those with subsequent

claims (often smaller cities and towns) a lower priority (junior). Priority is also assigned

depending on usage: domestic consumption and agriculture are considered the most

important, senior to environmental purposes. Thus there exists a hierarchy in water

rights to available water resources ranging from lowest to highest priority use, providing

a definitive ranking of competing claimants during times of drought. When water is

rationed, the highest priority rights holder receives a full allocation before any water is

made available to those of lower priority, who receive a residual volume. 46

Separated from land title, appropriative surface water rights exist as a licence to extract

a diversion volume (net of any return flows) over a set time period (usually an irrigation

season) sufficient to fulfill the beneficial use requirements of the applicant. Groundwater

rights arrangements vary considerably across the CRB, often lacking clear legal

definition, volumetric quantification or both, in ignorance of the significance of

interconnectedness between surface and groundwater systems. In California,

correlative rights to groundwater (accorded to owners of land overlying percolating

groundwater and attached to land title) without extraction limits often result in serious

aquifer depletion. 47

More comprehensive legislation exists in arid states with less surface water availability

such as Arizona, where the Groundwater Management Act of 1980 48 defines

appropriative groundwater rights and diversion volumes in designated areas. In

Colorado, tributary groundwater is governed by the same regime as surface water, with

a well-permitting regime installed for non-tributary and designated groundwater

resources. Diversion limits exist for each regime and are generally quantified as an

extraction rate over a shorter time period than that of surface water rights. Appropriative

46 Grafton, R.Q., Landry, C., Libecap, G.D. & OBrien, R.J. (2010) Water Markets: Australias Murray -Darling Basinand the U.S. Southwest, NBER Working Paper Series No. 15797, National Bureau of Economic Research, Cambridge,MA: U.S.A., 8.47 Productivity Commission (2003d) Water Rights Arrangements in Australia and Overseas: Annex H, CommissionResearch Paper, Productivity Commission, Melbourne: Australia, 24. Last Retrieved Nov 18, 2012, from:http://www.pc.gov.au/__data/assets/pdf_file/0003/8526/annexh.pdf 48 Groundwater Management Act of 1980 45 ARIZ REV STAT ch 2 401 Last Retrieved Nov 22, 2102, from:http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=45
http://www.pc.gov.au/__data/assets/pdf_file/0003/8526/annexh.pdfhttp://www.pc.gov.au/__data/assets/pdf_file/0003/8526/annexh.pdfhttp://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=45http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=45http://www.azleg.state.az.us/ArizonaRevisedStatutes.asp?Title=45http://www.pc.gov.au/__data/assets/pdf_file/0003/8526/annexh.pdf


17/27


17

Table 3. Summary of existing appropriative water rights and well permits, including administrativedetails, in the state of Colorado, upper Colorado River Basin, U.S.A.

groundwater rights and well permits also exist as a licence to extract separated from

land title and subject to beneficial use requirements, but only diversion volumes for

appropriative surface water rights are always legally required to be set upon granting of

a licence in every CRB jurisdiction. 49 Appropriative surface water rights are perpetual

personal property subject to continued beneficial use of the water extracted.

Appropriative groundwater rights and well permits, where they exist, are also personal

property subject to abandonment but are usually of 100 yr duration. All appropriative

righ

rights in the CRB are transferable (subject to approval from the relevant state water

resource authority if the transfer involves a change in the point of diversion/extraction

that could impact return flows and impair supply to senior rights holders downstream orelsewhere in an aquifer), 50 and protected through the respective state Constitution. As

property in perpetuity they cannot be removed or modified without consent from the

49 Productivity Commission (2003d) Water Rights Arrangements in Australia and Overseas: Annex H, CommissionResearch Paper, Productivity Commission, Melbourne: Australia, 2550 Ibid, 30.


18/27


18

Table 4. The Law of the River. A summary of key legislation and agreements governing allocation of surface waters between s tates inthe Colorado River Bain and associated allocation volumes.

water right holder, even through legislation. 51 Many different types of appropriative

water rights exist across the 7 CRB states, table 3 contains a detailed summary of these

for the Upper CRB state of Colorado. 52 In California riparian water rights are also

accorded to owners of land adjoining watercourses.

As in the MDB under the amended Water Act 2007 (Cth), distribution of surface water

resources of the CRB (primarily the Colorado River and its tributaries) is governed by an

inter-jurisdictional legal framework , albeit far more complex. The Law of the River 53

comprises numerous inter-state compacts, federal laws, court decisions and decrees,

contracts and regulatory guidelines apportioning available surface water between the

CRB states. A selection of the primary legislation and agreements contained within the

Law of the River, alongside their effect and prescribed allocations, is given in table 4. 54

51 Gillian, D.M. & Brown, T.C. (1997) Instream flow Protection Issues in the states, in Instream Flow Protection:Seeking a Balance in Western Water Use, Gilllian, David M. [Ed.], Island Press, Washington DC: U.S.A., 112-113.52 Source: Productivity Commission (2003c) Water Rights Arrangements in Australia and Overseas: Annex I, Commission Research Paper, Productivity Commission, Melbourne: Australia, 20,21.53 MacDonnel, L.J. (2009) Colorado River Basin, Water and Water Rights, 4 WWR 16-20.54 Source: Source: Productivity Commission (2003b) Water Rights Arrangements in Australia and Overseas,Commission Research Paper, Productivity Commission, Melbourne: Australia, 72.


19/27


20/27


20

The hierarchy, transferability restrictions, constitutional protection of water rights

constraining government legislative power and complexity in the water rights and

allocation regimes as discussed all affect the planning for and meeting of environmental

water needs in CRB state jurisdictions. This is most evident in states such as Colorado,

where in-stream flow rights (table 3, column 6) represent the only means of providing

water for environmental purposes outside of federally protected areas and legislation.

4. Environmental water in the Colorado River Basin: A state focus.

Many different environmental water arrangements have emerged in the CRB, arising

due to the nature of existing water rights and allocation regimes as vested (in most

instances) solely in the states and under the governance of individual state laws. Often,

the Doctrine of Prior Appropriation predominant throughout the CRB ensured that manyrivers were already fully appropriated long before the environment was ever considered

as a beneficial use for water. 61 In addition, the sole reliance on various government

agencies within each state for water resource planning to determine the level of

protection necessary for existing environmental flows (termed in -stream flows in CRB

states) and decide if any new environmental flows should be established is also cited as

a serious deficiency. State water agencies are likely to place a higher priority on

protecting the interests of consumptive water rights holders to the detriment of

environmental watering needs. 62 Classified as semi-arid to arid, with irrigation and

domestic consumption accounting for approximately 90% of freshwater extractions and

the prior appropriation doctrine inherent in its Constitution, Colorado typifies many CRB

states and their legal and institutional approach to in-stream flows.

Enacted in 1973, the Colorado In-Stream Flow Statute vests exclusive authority to

appropriate water for in-stream flows in the Colorado Water Conservation Board

(CWCB) as in-stream flow rights , allowing the CWCB to appropriate such waters ofnatural streams and lakes as the board determines may be required for minimum

61 Garrick, D., Lane-Miller, C. & McCoy, A.L. (2011) Institutional Innovations to Govern Environmental Water in theWestern United States: Lessons for Australias Murray -Darling Basin, Economic Papers, Vol. 30 No. 2, 170.62 Benson, R.D. (2006) Adequate Progress or Rivers Left Behind? Developments in Colorado and WyomingInstream Flow Laws Since 2000, Environmental Law, 36 EL 1289.


21/27


21

stream flows to preserve the natural environment to a reasonable degree. 63 Any

appropriation for minimum in- stream flow in Colorado shall be subject to the present

uses or exchanges of waterpursu ant to appropriation or practices in existence on the

date of such appropriation 64 Any new environmental water allocations established

under this legal framework are therefore junior appropriations, not only to established

water rights but also to established practices not legally recognised. These would be the

first to be affected by water scarcity. Water rights holders in Colorado can make water

available for in-stream flows only through the CWCB, which the legislation empowers to

acquire water or wate r rights for in-stream flow use by grant, purchase, lease,

exchange or other contractual agreement, from or with any person. 65 Legislation in

2002 expanded CWCB authority to accept water rights for conversion to in-stream flow

rights by donation, accept water rights exceeding the volumes required for minimum in-stream flows and to use any funds made available to acquire additional water rights for

environmental use. 66 Further legal means for establishing in-stream flows were provided

in 2003 and 2005, upon passing of legislation authorising water rights holders to loan

their allocation to the CWCB for in-stream flow purposes for up to 10 years 67 and the

creation of water banks to facilitate additional water leases. 68 Despite these reforms as

steps toward improving the regime for environmental water allocation and increasing

available volumes, the Colorado legislature has retained the significant limitation on in-stream flow arrangements originally imposed: Colorado statutes still require that the

CWCB hold all in-stream flow rights. 69

Colorados current in -stream flow program comprises 3 major program areas: New

Appropriations (junior water rights considered by the CWCB annually and filed with the

63 37 COLO REV STAT (2005) 92-102(3). Last Retrieved Nov 18, 2012, from:http://www.lexisnexis.com/hottopics/Colorado/ 64 Ibid, 92-102(3)(b)65 Ibid, 92-102(3)66 Act of 21 May 2002 , ch 149, 2002 Colo Sess Laws 445 46. Last Retrieved Nov 18, 2012, from:http://www.state.co.us/gov_dir/leg_dir/olls/sl2002a/sl_149.pdf 67 Act of 5 June 2003, ch 362, 2003 Colo Sess Laws 2396. Last Retrieved Nov 19, 2012, from:http://www.state.co.us/gov_dir/leg_dir/olls/sl2003a/sl_362.pdf 68 Act of 25 March 2005, ch 18, 2005 Colo Sess Laws 82. Last Retrieved Nov 19, 2012, from:http://www.state.co.us/gov_dir/leg_dir/olls/sl2005a/sl_18.pdf 69 Benson, R.D. (2006) Adequate Progress or Rivers Left Behind? Developments in Colorado and WyomingInstream Flow Laws Since 2000, Environmental Law, 36 EL 1292.
http://www.lexisnexis.com/hottopics/Colorado/http://www.lexisnexis.com/hottopics/Colorado/http://www.state.co.us/gov_dir/leg_dir/olls/sl2002a/sl_149.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2002a/sl_149.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2003a/sl_362.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2003a/sl_362.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2005a/sl_18.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2005a/sl_18.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2005a/sl_18.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2003a/sl_362.pdfhttp://www.state.co.us/gov_dir/leg_dir/olls/sl2002a/sl_149.pdfhttp://www.lexisnexis.com/hottopics/Colorado/


22/27


22

relevant Water Court for adjudication), Water Acquisitions (allowing the CWCB to obtain

senior priority water rights to preserve existing or establish additional in-stream flows

with greater c ertainty, considered by the CWCB on an as -offered basis) and Water

Rights Protection (physical protection for decreed in-stream flow rights through

monitoring, evaluation and administrative support for rights entitled to water allocation,

and legal protection for in-stream flow rights via protective terms and conditions in

Water Court decrees against water right applications posing potential injury). 70 The

Colorado Water for the 21 st Century Act (2005) 71 established a basin roundtable

(comprised of a CWCB board member, public stakeholders and government agency

liaisons) within the Colorado CRB district to develop a non-consumptive needs

assessment (phase(i)) identifying environmental water requirements and proposed

projects and methods for delivery (phase(ii)). To date only phase(i) has beencompleted. 72

Conclusion.

Delivery of lasting and secure environmental flows in the CRB has been classified as a

challenge of re-allocation and statutory recognition of the environment as a legitimate,

increased priority use of water resources, in order to allow transfer and trading to re-

allocate senior water rights for the environment through mechanisms that overcome

restrictions imposed by the hierarchy of the Doctrine of Prior Appropriation. 73

Decoupling of environmental water provision in CRB states from existing limitations, by

allowing other entities beyond state agencies a role in allocation planning (through

increased stakeholder involvement and decreased reliance on regulatory officials) and

70 Merriman, D. & Janicki, A.M. (2005) Colorados In -stream Flow Program: How it Works and Why Its Good forColorado, Colorado Water Conservation Board, Denver, Colorado: U.S.A., 2. Last Retrieved Nov 22, 2012, from:http://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspx 71 Colorado Water for the 21 st Century Act (2008) 37-75-104(1,2). Last Retrieved Nov 22, 2012, from:http://cwcb.state.co.us/legal/Pages/Legislation.aspx 72 CWCB (2012) Colorado Water Conservation Board: Non-consumptive Needs (Environmental and Recreational),[Online]. Last Retrieved Nov 24, 2012, from:http://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspx 73 Garrick, D., Lane-Miller, C. & McCoy, A.L. (2011) Institutional Innovations to Govern Environmental Water in theWestern United States: Lessons for Australias Murray -Darling Basin, Economic Papers, Vol. 30 No. 2, 171.
http://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspxhttp://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspxhttp://cwcb.state.co.us/legal/Pages/Legislation.aspxhttp://cwcb.state.co.us/legal/Pages/Legislation.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/legal/Pages/Legislation.aspxhttp://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspx


23/27


23

protection (through reform of laws governing acquisition of in-stream flow rights) are

also mandatory. 74 As with many states in the CRB (and indeed the Western United

States), the legal reforms and environmental flow program in place in Colorado

represent progress both achieved and lacking when assessed against these criteria.

However, more in-stream flow rights have been established in Colorado than in any

other CRB jurisdiction, these are actively monitored and protected and the state is

enlisting the assistance and expertise of non-profit environmental organisations to

improve program effectiveness. Multiple environmental flow levels have been

prescribed and methods to deliver them investigated towards fulfillment of the goals of

phase(ii). 75 Significant financial resources have also been dedicated to this program,

providing an alternative perspective on the success claimed: acquiring senior water

rights for environmental purposes is certainly dependent on the availability of funding tocompensate previous holders. Public funding and the role of water trusts are gaining

increasing recognition as a viable approach to environmental water provision in the

CRB and means to overcome many difficult legal and institutional barriers. 76

While this situation is mirrored in the MDB by the level of funding directed at

environmental water acquisition through the Water for the Future Program and

involvement of state holders and managers of environmental water, recent reforms

under the Water Act 2007 (Cth) have promulgated an important federal foundation

through creation of the MDBA and CEWH. More fundamentally, in the MDB the

challenge of inter-jurisdictional environmental water provision amongst competing and

conflicting state interests has been addressed by statutory reform of the legislative

framework governing water rights and allocation. Legislation increasing federal

authority, and legislative instruments such as the Basin Plan 2012 (Cth) integrating

state and federal environmental water objectives and planning across MDB jurisdictions,

74 Gillian, D.M. & Brown, T.C. (1997) Instream flow Protection Issues in the states, in Instream Flow Protection:Seeking a Balance in Western Water Use, Gilllian, David M. [Ed.], Island Press, Washington DC: U.S.A., 112,113,120-122.75 Charney, S. (2005) Decades Down the Road: An Analysis of In-stream Flow Programs in Colorado and the WesternUnited States, Colorado Water Conservation Board, Denver, Colorado: U.S.A., 49. Last Retrieved Nov 10, 2012,from:http://cwcb.state.co.us/public-information/publications/documents/reportsstudies/isfcompstudyfinalrpt.pdf 76 Garrick, D., Lane-Miller, C. & McCoy, A.L. (2011) Institutional Innovations to Govern Environmental Water in theWestern United States: Lessons for Australias Murray -Darling Basin, Economic Papers, Vol. 30 No. 2, 176.
http://cwcb.state.co.us/public-information/publications/documents/reportsstudies/isfcompstudyfinalrpt.pdfhttp://cwcb.state.co.us/public-information/publications/documents/reportsstudies/isfcompstudyfinalrpt.pdfhttp://cwcb.state.co.us/public-information/publications/documents/reportsstudies/isfcompstudyfinalrpt.pdf


24/27


24

are intended to guarantee the environmental water rights of dependent ecosystems

basin-wide. If the 2 750 Gl requirement specified by the Basin Plan 2012 (Cth) is met

the CEWH will become the single largest owner of water in the MDB, controlling up to

20% of all extractive water rights. 77 Displacement of constitutionally established state

powers with respect to water resource governance was necessary as part of the reform

process. The legal protection afforded by the respective Constitutions of CRB states

prevents governments of these jurisdictions from administratively modifying existing

water rights and allocation regimes in a similar manner. Unfortunately, this likely

precludes any overarching statutory plan such as the Basin Plan 2012 (Cth) from ever

being developed for the CRB.

77 Crase, L., Dollery, B. & OKeefe, S. (2011) Managing Environmental Water: Lessons in Crafting EfficientGovernance Arrangements, Economic Papers, Vol. 30 No. 2, 123.


25/27


25

Bibliography.

Adler, R.W. (2007) Restoring Colorado River ecosystems: a troubled sense ofimmensity , Adler, Robert W. [Ed.], Island Press, Washington DC: U.S.A.

Benson, R.D. (2006) Adequate Progress or Rivers Left Behind? Developments inColorado and Wyoming Instream Flow Laws Since 2000, Environmental Law, Vol. 36.

Charney, S. (2005) Decades Down the Road: An Analysis of In-stream Flow Programsin Colorado and the Western United States, Colorado Water Conservation Board,Denver, Colorado: U.S.A.

Cohen, M.J. (2011) Municipal Deliveries of Colorado River Basin Water , PacificInstitute, Oakland, California: U.S.A.

Connel, D & Grafton, R.Q. (2008) Planning for Water Security in the Murray-DarlingBasin, Public Policy, Vol. 3 No.1.

Connel, D. & Grafton, R.Q. (2011) Water Reform in the Murray Darling Basin, WaterResources Research, Vol. 47.

Crase, L., Dollery, B. & OKeefe, S. (2011) Managing Environmental Water: Lessons inCrafting Efficient Governance Arrangements, Economic Papers, Vol. 30 No. 2.

CSIRO (2008) Water Availability in the Murray-Darling Basin: A report from CSIRO tothe Australian Government, CSIRO, Canberra, ACT: Australia.

CWCB (2012) Colorado Water Conservation Board: Non-consumptive Needs(Environmental and Recreational), [Online]. (http://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspx )

Davies, P.E., Harris, J.H., Hillman, T.J. & Walker, K.F. (2008) Sustainable Rivers AuditReport 1: A Report on the Ecological Health of Rivers in the Murray-Darling basin 2004-2007, Prepared by the Independent Sustainable Rivers Audit Group for the Murray-Darling Basin Ministerial Council, Murray-Darling Basin Commission, Canberra, ACT:

Australia.

Feldman, D.L. (2007) Water Policy for Sustainable Development, Feldman, David L.[Ed.]., Johns Hopkins University Press, Baltimore: U.S.A.

Gardner, A. (2006) Environmental Water Allocations in Australia , Environmental Law

Reporter, Vol. 36.Gardner, A., Bartlett, R. & Gray, J. (2009) Water Resources Law, Gardner, AlexanderW. [Ed.], Lexis Nexis Butterworths, Chatswood, N.S.W.: Australia.

Garrick, D., Lane-Miller, C. & McCoy, A.L. (2011) Institutional Innovations to GovernEnvironmental Water in the Western United States: Lessons for Australias Murray -Darling Basin, Economic Papers, Vol. 30 No. 2.
http://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspxhttp://cwcb.state.co.us/environment/non-consumptive-needs/Pages/main.aspx


26/27


27/27


Productivity Commission (2003a) Water Rights Arrangements in Australia andOverseas: Annex G, Commission Research Paper, Productivity Commission,Melbourne: Australia.

Productivity Commission (2003b) Water Rights Arrangements in Australia andOverseas, Commission Research Paper, Productivity Commission, Melbourne:

Australia.

Productivity Commission (2003c) Water Rights Arrangements in Australia andOverseas: Annex I, Commission Research Paper, Productivity Commission, Melbourne:

Australia.

Productivity Commission (2003d) Water Rights Arrangements in Australia andOverseas: Annex H, Commission Research Paper, Productivity Commission,Melbourne: Australia.

Reisner, M. (1990) Cadillac Desert: The American West and Its Disappearing Water,

Secker & Warburg, London: U.K.Transmittal letter from MDBA Chair Craig Knowles to The Hon Tony Burke MP, FederalMinister for Sustainability, Environment, Water, Population and Communities, 21November 2012.

UN (1971) Convention on Wetlands of International Importance especially as WaterfowlHabitat , Ramsar (Iran), 2 February 1971. UN Treaty Series No. 14583. As amended bythe Paris Protocol, 3 December 1982, and Regina Amendments, 28 May 1987. In force21 December 1975.

USBR (2011) Colorado River Basin Water Supply and Demand Study: Interim Report

No.1, United States Bureau of Reclamation, U.S. Department of the Interior, BoulderCity, Nevada: U.S.A.

Vidot, A. (2012) Murray-Darling Basin Plan signed into law at last, ABC Rural News[Online]. (http://www.abc.net.au/rural/news/content/201211/s3638832.htm )
http://www.abc.net.au/rural/news/content/201211/s3638832.htmhttp://www.abc.net.au/rural/news/content/201211/s3638832.htmhttp://www.abc.net.au/rural/news/content/201211/s3638832.htmhttp://www.abc.net.au/rural/news/content/201211/s3638832.htm

Documents

Assessment of Water Rights in the Murray Darling and Colorado River Basins