Ridenbaugh Press/Water Rights

If you want to use water from an irrigation district, and you don’t have a standing agreement already, how much is a fair fee for use of the water right?

That was the key question in Marvin and Sherri Rageth v. Sidon Irrigation District, decided August 24 by the Wyoming Supreme Court. It was not finally resolved, since the court said that it needs more information first. But it did outline a path to setting a series of numbers.

The court said that “the central issue presented is, in the absence of an agreement, what water delivery fee may an irrigation district charge a non-member who has a perpetual right to convey that non-member’s adjudicated appropriation to that non-member’s land outside the irrigation district’s boundaries using the irrigation district’s canal and related facilities.”

The background, according to the court decision:

District owns the Sidon Canal in Big Horn County, Wyoming, which was constructed in 1900 and has been in operation to the present. District covers approximately 13,129.98 acres with 179.57 c.f.s. of adjudicated water rights diverted from the Shoshone River through the Sidon Canal. District also has a permit for supplemental supply from Bitter Creek.

In 2008, Rageths purchased 559.75 acres situated adjacent to the Sidon Canal with 8 c.f.s. of adjudicated water rights diverted from Bitter Creek at a structure built and maintained by District and conveyed through the Sidon Canal. Their water flows in Sidon Canal for a distance of approximately 6.5 to 7 miles to pump stations where the water is pumped above the canal and used in pivots to irrigate their land. Their land is not located within District’s boundaries, and Rageths are not members of District.

District and previous owners of Rageths’ land had agreements establishing their payments for delivery of their water through the Sidon Canal, but these agreements had expired before Rageths’ 2008 purchase of their land.1 After Rageths purchased the land, they and District negotiated without success to reach agreement establishing a delivery fee. In 2008, District billed Rageths the sum of $7,560.00 for delivering their 8 c.f.s., that sum representing 75% of the gross assessment for District’s members, which was based on $18.00 per acre at the time. In 2009, District billed Rageths the sum of $11,200.00, that sum representing 100% of the gross assessment for District’s members, which was based on $20.00 per acre at the time. Rageths paid these bills under protest, and District delivered their water throughout the irrigation seasons.

In July 2009, Rageths filed their action for declaratory judgment to establish a reasonable fee for the delivery of their adjudicated irrigation water through the approximately 6.5 to 7 mile stretch of the Sidon Canal and for reimbursement of alleged overpayments of delivery fees for the prior years. After the litigation was underway, the parties engaged in mediation and, as a result, they executed a stipulation, filed with the district court on April 28, 2010, that resolved issues of ownership and rights to the use of the Sidon Canal, but not the issues of establishing for the future a reasonable delivery fee and reimbursement of alleged overpayments of delivery fees for the prior years.

The court reflected, ” it is clear that the parties disagree on how to determine the expenses necessary for the proper maintenance and operation of the Bitter Creek Diversion and the Sidon Canal, for it is to those expenses that the parties will apply the ratio of 4.26% on which they agree.”

But: “Having carefully considered the parties’ briefs, the record, the pertinent statutory provisions, and the authority revealed by our independent research, we find there exist genuine issues of material fact that must be determined only after a full evidentiary hearing. Rageths’ proportionate share of the requisite expenses must be based on an equitable apportionment determined after consideration of the various relevant factors. Consequently, we reverse the district court’s orders in No. S-10-0141 and No. S-10-0184 and remand for further proceedings consistent with this opinion.”

New Mexico Judge Jerald Valentine on August 23 delivered a judgement bringing finality to an agreement on June 8 between a number of southern New Mexico water users.

The water involved flows through the Lower Rio Grande, an area of some recent water stress.

The parties included the state, the Southern Rio Grande Diversified Crop Farmers Association, the New Mexico Pecan Growers Association and the Elephant Butte Irrigation District.

The complex agreement metes out varying results to different parties. Farmers using surface water will be limited to delivery amounts of 3.024 acre-feet, each acre, each year. Those using both surface and ground water get a comparable amount of 4.5 acre-feet. Some other farmers (such as those with groundwater-only rights) may need to file more documents with the state. A surface water right for the 90,640 acres within the Elephant Butte district will be adjudicated by the state engineer’s office, but member of that district will get all of their surface water allotment.

State Engineer John D’Antonio remarked that “This settlement agreement will allow for the continued viability of the agriculture sector in the Lower Rio Grande, which has been a strong economic driver in the region.”

The Washington Department of Ecology and the Methow Valley Irrigation District have signed an agreement that settles all penalties and legal disputes outstanding since 2003.

In addition, the parties have agreed to a yearly schedule for incrementally reducing the amount of water the district will divert to improve streamflows, with a final required reduction to be achieved by the year 2016.

Under the terms of the agreement, lawsuits pending before the Court of Appeals, Okanogan County Superior Court, and the Pollution Control Hearings Board will be dismissed.

In 2002, Ecology ordered the district to limit water it diverted from the Twisp and Methow rivers on the basis that the district was unlawfully wasting water. The Methow Valley watershed is one of 16 fish-critical basins where reduced streamflows are a concern for endangered and migrating fish species. In 2003, the order was upheld by the state’s Pollution Control Hearings Board and later challenged by the irrigation district to Superior Court and the Court of Appeals.

A number of orders, notices, and penalties totaling $37,200, were issued by Ecology in an attempt to bring the district into compliance. These orders and penalties were appealed by MVID.

Under the terms of the settlement, in lieu of paying the penalties, MVID agrees to draft and submit a schedule of projects designed to help it comply with court-affirmed limits and administrative orders related to diversion rates. The projects, to total $37,200, will be paid for by patron assessments. Projects must be implemented by Dec. 31, 2015.

MVID also agrees to measure all flows diverted into the East and West Canals, beginning this irrigation season in accordance with an Ecology administrative order.

Ecology will actively support MVIDs efforts to secure funding to comply with the orders, including letters of support of funding applications and attending meetings, when requested. Ecology also will give priority to processing applications from the district or its patrons to move surface water withdrawals to groundwater wells. Seasonal groundwater withdrawals are expected to have less impact on surface water flows.

“Ecology is excited to return to a collaborative working relationship with the district. Our goal is to work with the MVID to both improve flows in the Twisp River and ensure reliable service is provided to district patrons” said Mark Schuppe, Water Resources section manager for Ecology.

Settlement negotiations have been under way since 2007.

In what was described by advocates as a major victory for Klamath Basin farmers and irrigators in Oregon and northern California, the United States Court of Appeals for the Federal Circuit has thrown out a ruling by the United States Court of Federal Claims denying Plaintiffs’ claims for $100 million in just compensation from the federal Government, and has remanded the case for further proceedings. The Federal Circuit’s decision emphasizes that on remand, the Government now “has the burden” of proving that delivering water to the Klamath Basin water users in 2001 was “impossible.” The Government also has the burden of demonstrating “with specificity” how the water districts’ repayment contracts redefined or altered the water users’ water rights.

“The Government’s decision not to deliver any water at all to the farmers in the Klamath Basin was devastating,” Nancie Marzulla, counsel for the Klamath water users, said. “We are extremely pleased that the Federal Circuit and Oregon Supreme Court have confirmed that these farmers have a property interest in water that they have put to beneficial use for over 100 years.”

The case, Klamath Irrigation District v. United States, No. 01-591 L, stems from a 2001 decision by the United States Bureau of Reclamation not to deliver any water to Klamath Basin farmers, solely for the purpose of protecting three species of fish under the Endangered Species Act. Plaintiffs filed suit in the U.S. Court of Federal Claims, alleging that the Government had taken their constitutionally protected property rights – in violation of the Fifth Amendment – or in the alternative, breached the water delivery contracts, by failing to deliver the water in 2001. In 2005, the U.S. Court of Federal Claims – relying on a 1905 Oregon statute – denied Plaintiffs’ claims, holding that there was no equitable property right in their use of Klamath Basin water for irrigation. In 2007, the Court disposed of the remaining breach of contract claims, concluding that the Government was shielded by sovereign immunity. The U.S. Court of Appeals for the Federal Circuit rejected the lower court’s rationale.

On Monday, conservationists asked the U.S. Bureau of Reclamation to withdraw its draft environmental impact statement that proposes to take more Columbia River water for expanding federal irrigation in eastern Washington. Monday was the final day of a 90-day public comment period for what is known as the Odessa Subarea Special Study.

“Economists, wildlife biologists, and lawyers have uniformly panned the Bureau’s proposal as environmental damaging, fiscally irresponsible, and illegal,” said Rachael Osborn, executive director for the Center for Environmental Law & Policy. “Even Floyd Dominy would blush at a proposal that returns only 10 cents on the dollar to taxpayers.” (Floyd Dominy was head of the Bureau of Reclamation from 1959 to 1971, and presided over construction of many Western dams and water projects.)

The groups said that the majority of farmers in the Odessa Subarea are dryland wheat farmers and have rejected federal water, starting in the 1940s. During the past 60 years, the Bureau has repeatedly tried to move forward with plans to expand irrigation by diverting water from the Columbia River. The current DEIS proposes 8 alternatives to provide Columbia River water to about 70 operators who have knowingly depleted the aquifer, many with illegal uncased wells. The cost to taxpayers and ratepayers for this bailout could run to $4 billion. Conservationists are calling for an alternative study that considers converting groundwater pumpers to dryland farming.

Additional problems with the Bureau’s proposal:

* The Bureau proposes to take more water from the Columbia River – despite recommendations of the National Academies of Science. More water diversions will aggravate problems for this river and its fabled salmon runs.

* The Bureau’s project will further destroy shrub-steppe habitat and the birds and wildlife that depend on the last-remaining remnants of this special habitat.

* Drawing down Lake Roosevelt will expose more toxins deposited from Teck Cominco’s lead smelter, with increasing risks to public and environmental health.

* Economists Whittlesey and Butcher (whose reviews in the 1980s are credited with stopping the Bureau from expanding the Columbia Basin Project) have reviewed the latest irrigation-expansion proposal and found all alternatives to be uneconomic.

* The Bureau failed to address the real impacts of climate change.

* The Bureau failed to discuss impacts on impending changes in the Columbia River Treaty which are likely to reduce operating flexibility at Grand Coulee Dam and Lake Roosevelt.

“Congress and Washington State need to stop squandering millions of dollars studying these infeasible water projects,” said Elaine Packard, chair of the Sierra Club’s Water & Salmon Committee in Washington State. The cost for the Odessa study is $12 million so far, roughly split between state and federal taxpayers. “Instead of fiscal folly, Congress, Governor Gregoire, and the Washington Legislature should invest in water conservation and a financially prudent water future.”

Conservation groups filing the main comment letter are CELP, Washington State Chapter of Sierra Club, Spokane Audubon Society, Lower Columbia Basin Audubon Society, Spokane Falls Chapter Trout Unlimited, and Columbia Riverkeeper. In addition, nearly 700 individuals also submitted postcards to the U.S. Bureau of Reclamation asking that the proposal be withdrawn.

The Washington Department of Ecology has issued a penalty of $17,000 to the Methow Valley Irrigation District for diverting more water than allowed from the Twisp River to the district’s West Canal.

The diversion limits, spelled out in orders made both by Superior Court and Ecology, are necessary to prevent unlawful waste of water, and to protect stream flows and interruptible water-right holders’ access to water.

MVID is required to measure hourly its surface water diversions from the Twisp and Methow rivers and report those findings weekly to Ecology. In addition, over the past decade, the district has been ordered to make upgrades to its water delivery system and implement best water management practices to prevent unlawfully wasting water.

Since beginning to report its diversions this irrigation season, MVID has violated its diversion limits from the Twisp River on 17 out of 26 days – A 65 percent violation rate. Each week, the district has been formally advised by letter that operations were out of compliance and to take actions to meet diversion limits.

In May 2005, the Pollution Control Hearings Board ruled that the irrigation district was unlawfully wasting water and upheld a December 2003 order by Ecology limiting how much water the district may divert for irrigation purposes.

In May 2006, MVID was ordered to limit its diversions to no more than 11 cubic feet per second (cfs) and 2,716 acre-feet of water per year from the Twisp River. The district also is limited to diverting 20 cfs and 4,909 acre-feet annually from the Methow River. These limits were recently upheld in Okanogan County Superior Court.

Also in 2006, Ecology provided more than $2 million in funding to pipe the West Canal. Due to spikes in construction and material costs, only about one mile of the canal was piped, which provided some improved efficiency of water use and water conservation, but not enough for MVID to meet the 11 cfs diversion limit ordered by the court.

Under its discretionary enforcement authority, Ecology stipulated that during the 2010 irrigation season MVID would be allowed to divert up to 17 cfs of water to its West Canal, on the condition that the district adopt best water management practices to further reduce diversions and make funding applications for additional canal improvements to meet the 11 cfs diversion limit ordered by the court.

[see the Washington Department of Ecology, June 11]

From the Washington Department of Ecology:

The Washington Department of Ecology issued 16 new water use permits today for the Quincy Basin near Moses Lake. This is in addition to the 16 permits it issued on May 1.

The permits issued today and on May 1 went to people who applied for Quincy Basin “artificially-stored” groundwater (ASGW) several years ago and have been waiting for water to become available.

The artificially-stored groundwater is water that has accumulated underground over many years as a result of the federal government’s Columbia Basin Project. The Columbia Basin Project provides irrigation water from Lake Roosevelt for more than 670,000 acres of agricultural land in the Columbia Basin.

The new 16 water permits are for irrigation uses, except that one permit also will authorize the Grant County Public Utilities District #2 to use nearly 5,800 acre-feet of water per year for industrial uses for aquaculture (fish farming). Continue Reading »

The state level of a long-running water battle in the Klamath River Basin appeared, in May, to have been resolved in the wake of a counterpart federal settlement.

The limited water in the Klamath, sought after by irrigators, the Klamath Tries of Oregon, fish advocates and others, has been the subject of legal battles for more than a decade. In 2001 irrigation was shut off, hurting farmers but helping the fish; in 2002, irrigators got their water but tens of thousands of fish were reported as having been killed. In January 2008, involved groups agreed to the Klamath Basin Restoration Agreement, which provided for dam removal and an approach for apportioning the water.

That still left state water issued unaccounted for. But on May 20 the tribes and the irrigators filed with the state Department of Water Resources an agreement with a plan that reflects the federal approach.

[see Eureka (CA) Times-Standard, May 22]

From the company General Moly:

General Moly announced the Company, through a subsidiary, received approval of its water applications. The Nevada State Engineer released Ruling 5966, which granted the previously filed applications for an annual consumptive duty, or volume of 11,300 acre feet annually (afa). The vast majority of the water has as its source the Kobeh Valley ground water basin. This ground water will be utilized, and placed to a beneficial use on the Mt. Hope project.
As previously announced, the Company purchased sufficient quantities of existing irrigation and mining water rights in Kobeh Valley, adjacent to the Mt. Hope project. In the first half of 2008, the Company submitted applications to the Nevada Division of Water Resources requesting transfer of the water rights to Eureka Moly’s proposed well field as well as to change the designated use of these water rights from agricultural to mining and milling. Following a State Engineer’s hearing on these applications in October of last year, the granting of these applications was received on March 26, 2009.

During 2008, the Company explored for and tested specific water well locations in the proposed well field. This effort identified several highly productive wells and verified that the Company will be able to obtain the 7,000 gallons per minute (gpm) necessary to meet the Mt. Hope project’s life of mine production needs. The well field is conveniently located seven miles west of the planned open pit mining operation.

In addition, the Nevada State Engineer determined in his findings that Kobeh Valley pumping will have no adverse impact to the predominately agricultural users in Diamond Valley, the adjacent water basin 15 miles east of our well field site. The grants are subject to a monitoring, management, and mitigation plan by the Nevada State Engineer for the place of use, which is limited to the Plan of Operations submitted to and accepted by the BLM (Mt. Hope project area).

A Utah state House measure (House Bill 241) which would give agriculture use of water a priority higher than that of domestic uses in “times of scarcity” has drawn some sharp opposition.

The bill has cleared the House 52-18, and is awaiting Senate committee action.

In committee sessions, backers of the bill – including Mike Styler, Director Department of Natural Resources, and Todd Bingham, Utah Farm Bureau – faced off against Fred Finlinson, Utah Water Coalition; Pat Casaday, Sandy City; Scott Ruppe, Uintah Water Conservancy District; Jodi Hoffman, Utah League of Cities and Towns; and Craig Smith, a lawyer representing several public water suppliers.

The bill’s supporters said that a measure (House Bill 51) passed in 2008 gave some advantage to city water right holders, and this year have approved (awaiting the governor’s signature) an extension on those provisions.

Urban advocates warned of the risk of residents losing their drinking water.