February 01, 2018 | Water in the West | Insights
Alletta (Letty) Belin, an attorney specializing in water law and management, has joined the Stanford University community as a Landreth Visiting Fellow working with Stanford’s Water in the West Program. Prior to joining Water in the West, Belin was Counselor to the Deputy Secretary of the Interior Department in Washington, D.C., from 2009-2017. She spent 25 years working in New Mexico and also has experience in California.
Belin recently took time out for a Q&A on her current and past work as well as reflections on water in the west moving forward:
As an attorney specializing in water and natural resources, what first drew you to the field?
The summers I spent in the Tetons and visiting national parks brought me out west, to college and law school here at Stanford. I spent most vacations backpacking in the Sierras and Rocky Mountains, which always replenished me, and gave me the idea that I might be able to use legal skills to protect the natural environment. Unfortunately, Stanford Law School didn’t have any courses or clinics focused on environmental law at the time. As it turned out, however, NRDC had just opened a small office next to the Stanford campus, and I biked over there to do volunteer work, which was my first exposure to environmental law and advocacy. Little did I know that the two lawyers I worked with there – John Leshy and Johanna Wald – would become icons in the environmental law arena. They are still my mentors and good friends.
I’ve done environmental law from every perspective—from a private litigation practice here in the Bay Area, to New Mexico where I ran the Energy, Environment, and Telecommunications Division for then Attorney General Tom Udall, to litigating for various non-profits, Indian tribes and organizations, and the Governor of New Mexico, and finally to the Department of the Interior, which had been the target of much of my previous litigation. But I will say that while I brought cases to enforce water quality requirements, for years I steered clear of other water matters because as far as I could tell the topic was so arcane and the law so complex that the litigation went on for decades without any resolution. My family’s house in New Mexico was within a pueblo where the water rights had been in litigation since 1967, and there was still no end in sight. Not surprisingly, I thought any lawyers that worked on water rights disappeared into a legal morass from which they never emerged. My views on that changed, however, when I was at the Attorney General’s office, and was asked to write an opinion on the legality of instream flows. I realized then that you can’t be an environment and natural resource lawyer in the western U.S. without understanding water – both water rights and water quality. All roads lead to water in the west and all environmental issues are connected to water in some way, shape or form.
After working at both the state and federal level on a variety of water related issues, what are some of your big takeaways for western water management moving forward?
Most importantly, we have to make every drop of water do more things than ever before. It used to be that any water user could “use up” water doing only one single thing, without thinking about what happens to the water when he or she is done with it. But now we have to make every drop do many things. In general, we are looking at less water and less water storage and more people and demands on that water. The way to cope with this is to get smarter about how we use the water. That’s the big picture.
In New Mexico, the general thinking in the past was always that as the population expanded and water demands rose over time, the problem would be solved simply by moving water away from agriculture to urban uses. Arizona also subscribed to that theory, allocating much of its Colorado River water to farming with the idea that eventually it will go to cities. Of course, it’s not that simple. Things are far more complicated than many people anticipated, particularly with the added challenges posed by climate change. We have to figure out how to conserve and reuse water in ways that get water to urban users without killing agriculture.
What about California specifically?
I think the various steps that California has taken to address the drought over the past 6 or 8 years provides a road map—or at least the beginning of a road map—for western water management in the 21st century. Governor Brown’s “California Water Action Plan” sets forth in a nutshell the range of actions – from conservation and drought management to increased water storage and flood protection, to smarter and more efficient water operations – that need to be taken. But we still have a long road ahead of us. And, at the same time that California has been so smart on many aspects of water and drought management, it also has been at the bottom of the class when it comes to groundwater – with absolutely no management or regulation until the 2014 Sustainable Groundwater Management Act. As a result of that grievous error, large parts of the state have become dependent on vast amounts of unsustainable groundwater pumping that will be extremely difficult and expensive to address.
There is much talk about water markets now, and certainly increased water marketing needs to be one of the ways that we increase water management efficiency. However, establishing viable water markets is not a panacea. It is far easier to talk about than to do because of the legal complexities.
Another area where much progress can be made in addressing water problems is by taking advantage of the vast range of technical data that is now being generated that can drive improvements in water management.
Providing water supplies for a growing population at the same time that droughts are becoming more intense, water supplies are shrinking, and our winter water storage capacity in the form of snowpack is reduced due to climate change, is no small challenge. Everywhere there are water problems. There are shortages and the complexities of water ownership and many legal obstacles in the way of reasonable water management. No doubt we will need to manage on dozens of fronts to address our water challenges. But that’s why the work being done in the Water in the West program is so important. If we combine good science with good policy, we can do it.
You’ve focused on tribal law and worked on the water settlements for dozens of tribes in the Obama administration. Can you speak a bit about what you did in the Department of the Interior specifically related to tribal water issues?
When David Hayes, the Deputy Secretary of the Interior, told me I was going to run the Indian Water Settlement Program, I was worried because, as noted previously, I knew that Indian water rights settlements were incredibly complex and generally took many decades to reach a resolution. At the same time, having the chance to right some of the wrongs that have been done to Indian tribes was very exciting. Nothing is more important to Indian tribes than water. Legally, tribes generally have the most senior water rights, but as a practical matter, they often don’t have access to adequate water supplies. Many tribes lack clean drinking water, and droughts usually hit tribes the hardest. Running the federal government’s Indian water settlement program was hard, though. When you’re a federal employee and you go to Indian country and say “Hi I’m here to help you,” you often meet skepticism -- and appropriately so. Nevertheless, by the end of the Obama Administration we were able to complete final water settlements – with around $3 billion in federal funding – for fifteen tribes. It was a real gift to be able to do something meaningful for these Indian tribes, many of whom had been trying to resolve their water rights claims for decades.
For those of us who aren’t as familiar with tribal law, can you speak a bit more about water settlements?
As a matter of law, Indian tribes are entitled to the amount of water needed to sustain their people on their reservation. For tribes that farm, the amount of their water rights depends on the amount of irrigable acreage on the reservation. Tribes generally have very senior priority water rights that date back either to “time immemorial” when they first inhabited the area, or to the date their reservation was established. But if you look at most river systems in the west, water diversion systems were built by and for the non-Indians. The Bureau of Reclamation designed many of these systems for non-Indian farmers; relatively few federally-funded irrigation systems were built for Indian tribes. So the tribes were left high and dry. They might have the senior water right, but they lacked the infrastructure to use the water and others had appropriated the water.
For instance, the Gila River tribe had been irrigating their corn along the Gila River for hundreds of years before non-Indians settled in the area. Over time, virtually all of Gila River’s water disappeared because the upstream non-Indians diverted it for their own uses. This same scenario played out all over the west. Tribes were left without water, without water infrastructure, and without the funding and other resources needed to enforce their senior water rights and get their water back. As it turns out, Gila River is one of the tribes that successfully obtained a final water rights settlement that provides the tribe with over 650,000 acre-feet per year of water and funding to build the necessary water delivery infrastructure.
Let me also mention the Colorado River because tribal water rights are particularly important there. Indian tribes have confirmed water rights to almost 1/5 of the Colorado River (3 million acre-feet per year) and their water rights are more senior than anyone else’s. Tribes were, however, excluded from the Colorado River Compact by which the seven states on the river divided up the River’s water. Several tribes with rights to Colorado River water are now interested in marketing that water to off-reservation water users (e.g., Phoenix). However, unless congress has enacted a law expressly allowing a tribe to market its water off reservation (such a provision was included in the Gila River water settlement), tribes cannot do so. Therefore, most Colorado River Indian tribes must use all their water on the reservation. As pressure builds for more water marketing on the river, I expect legislation will be enacted allowing tribes to market their Colorado River water to others off the reservation.
Most tribes don’t have adjudicated or settled rights. Of the ~565 Indian tribes, roughly 330 of which are in the lower 48 states, 44 tribes (about 8%) have finally resolved water rights. One of the benefits of congressionally-approved settlements is that they generally include funding for water infrastructure to deliver the water to the tribes. Tribes can use that money to develop a municipal water delivery system, which happened on the Blackfeet Reservation in Montana, where a number of the towns on the reservation had been under “boil water” orders from EPA for many years due to the broken and unhealthy water system. On the Crow Reservation, also in Montana, a water settlement allowed the tribe to get a decent municipal water system and to upgrade its dilapidated irrigation system.
Unfortunately, most of the 92% of tribes without finally resolved water rights are not able to enforce their water rights against junior water users because of legal and financial obstacles.
One final noteworthy point on the topic of Indian water rights is that a number of tribes in the northwest have treaties that expressly give them the right to hunt and fish in their “usual and accustomed” off-reservation locations. These off-reservation fishing rights have spawned litigation over whether the treaty provisions place a duty on the state to protect and restore salmon habitat; the U.S. Supreme Court has just agreed to hear the central case on that important issue.
What will you be working on at Water in the West?
I’ll be focusing on three areas. First, I’m going to work on implementation of the Sustainable Groundwater Management Act (SGMA). Specifically I want to shed some light on the groundwater-surface water interaction, and specifically on how to determine what constitutes impermissible “significant and unreasonable adverse impacts” on surface water uses. I’ll be looking at various laws, cases, and legal doctrines to shed light on what should and shouldn’t be allowed based on that.
Second, I’ll be working on figuring out how we can get the federal government to manage infrastructure—dams in particular—in a more flexible way based on all the currently available technical tools. There’s no question that the Army Corps of Engineers flood management is incredibly conservative and based on a very old paradigm. The real question is: How do we make science and law and policy improve dam management? This ties back in to the discussion above on how we can manage water smarter. One way would be to use new data and technologies to manage water in a way that meets a broader range of goals. This is sorely needed in the case of Army Corps dam management.
Third, I’ll be focusing on tribal water. Sibyl Diver, who has long been working with the Karuk tribe in northern California, has connected me with the tribe to potentially help them address some water quality and related issues.