Ridenbaugh Press/Water Rights

The U.S. Forest Service has filed an application to perfect a portion of the Animas Service Area water right owned by La Plata County and the Southwestern Water Conservation District. The application was filed in District Court, Water Division 7, on November 29th as confirmation of a number of historic existing water uses in the Animas River basin on the San Juan National Forest, Columbine Ranger District.

The Animas Service Area water right is a unique Colorado water right acquired in response to the recreational in-channel diversion water right owned by the City of Durango for whitewater recreation. A settlement between the City of Durango, La Plata County and the Southwestern Water Conservation District allowed for water to support a whitewater park on the Animas River, while setting aside two large water rights that are senior to the city’s allotment for current and future development.

The Animas Service Area water right is for the beneficial uses of irrigation, wetlands and wetland irrigation, domestic, municipal, pond, reservoir, water feature and other evaporation, industrial, manufacturing, power, geothermal, commercial, gravel and other mining, stock, wildlife, firefighting, recreation, snow and ice making, fisheries, recharge of aquifers, and augmentation and exchange to protect other water right holders.

The U.S. Forest Service filing will confirm 153 water rights for the San Juan National Forest, representing a cumulative total of about 2.3 cubic feet per second (cfs) of flow amounts in springs, and an additional 57.8 acre-feet of storage in Henderson Lake. To put the amounts into perspective, approximately 1 cfs of water per year is typically used to irrigate 30 acres of land in the Animas Valley. An acre-foot of water is enough water to cover one acre of land to a depth of one foot.

Most of the Forest Service claims are for surface-water rights to protect water for livestock at 137 small natural springs on National Forest grazing allotments in the Animas Basin. These uses have been in effect on the National Forest since the early 1900s, and altogether represent a cumulative total of almost 2.2 cfs.
Other claims being filed by the Forest Service will protect existing domestic water use and lawn watering at cabins on the National Forest. These represent only about 0.13 cfs cumulative total. Claims are also being filed to confirm the ability of the Forest Service to provide drinking water to campers at South Mineral Campground (0.0043 cfs) and to continue to provide for recreation and fisheries at Henderson Lake (57.8 acre feet).

A crane rescues/Aransas Project

The Aransas Project on December 8 filed a Notice of Intent to sue several officials of the Texas Commission on Environmental Quality (TCEQ) in their official capacity for illegal harm and harassment of whooping cranes at and adjacent to Aransas National Wildlife Refuge in violation of Section 9 of the Federal Endangered Species Act. Under federal law, TAP must wait at least 60 days before filing suit. The individuals to be sued in their official capacity include the three commissioners of the TCEQ, the executive director and the TCEQ’s watermaster for the Guadalupe River.

According to TAP attorney Jim Blackburn, the winter of 2008/2009 was the worst in recent history for the whooping crane with a death toll of 23 birds, or 8.5% of the flock. There is strong evidence that the problems experienced by the whooping cranes are directly caused by the permit programs of the TCEQ that allow too much water to be taken from the Guadalupe River Basin, especially during lower flow conditions. The TCEQ authorizes the use of surface water rights from the Guadalupe and such diversions reduce necessary fresh water inflows to the bays and estuaries.

Decreased fresh water to San Antonio Bay increases the salinity levels in the bays and estuaries that surround the Aransas National Wildlife Refuge – ecosystems that constitute the winter habitat for the last natural flock of whooping cranes. Higher salinity levels adversely affect the health of the ecological systems needed to maintain the cranes. As salinity increases, blue crabs – a major food source of the cranes – are driven away. Wolfberries – another vital food of the cranes – are also diminished by high salinities. With less food supply to nourish them, the cranes also have to fly further to find fresh water to drink.

“The TCEQ needs to develop a habitat conservation plan if there is to be any long-term hope for the future of this species and its habitat,” Blackburn said. “TAP is seeking a water management plan for this basin that reallocates water usage priorities, sets environmental flow standards for the bays, and includes a full accounting of all water uses and needs throughout the basin – all the way to the bay.”

Computer modeling completed by TAP indicates that the problems experienced by the whooping cranes last winter will be worsened if all existing water rights are fully utilized. “These impacts will be worsened by use of existing water rights yet to be drawn from the Guadalupe like the reservation of 75,000 acre feet for the proposed Exelon Nuclear power plant, or the permits for additional future water rights that were recently filed by the Guadalupe-Blanco River Authority.” Blackburn continues, “In a region with recognized water shortages, permits for massive quantities of water for industrial and municipal uses continue to be requested and granted.” Continue Reading »

The Denver Post on May 15 reviewed federal progress toward obtaining water rights for the national parks.

The article noted that “The Park Service already has won water rights for 25 parks in nine Western states, the last two for Colorado’s Black Canyon and Great Sand Dunes. Eight more agreements are being negotiated.”

It said that the effort to secure water rights for the Black Canyon in Gunnison National Park, on the west slope, was a process running 36 years and many appearances in court.

President Barack Obama has named Anne Castle as assistant secretary for water and science in the Department of the Interior.

A lawyer, she has extensive bckground water rights. According to the Obama Administration’s release on the appointment:

Anne Castle joined Holland & Hart LLP as a lawyer in 1981 and became a partner in 1987. She is a practitioner in water rights and water quality law, and has over twenty-five years of experience in water rights practice. She has represented a wide variety of clients in water court litigation, including adjudications of water rights, changes in water rights and plans for augmentation, and appeals. She has also represented clients in numerous water rights and water quality administrative proceedings. Her practice includes water rights conveyancing, contracts for purchase, use, and supply of water, and the evaluation and assessment of water rights.

Water rights in the bitterly-fought Klamath River basin will go to the Oregon Supreme Court for partial settlement, the high court said on January 29.

The case does not arrive in the usual way as an appeal within the state’s own court system, however. It is a referral from the 9th Circuit Court of Appeals, which had been considering water right claims filed under federal law. Federal agencies said that all the water available under those provisions were appropriated in 1905. The federal court asked the state court to determine if more rights, and if so what rights those might be, were available under state law.

On Monday, November 17, Senate Majority Leader Harry Reid confirmed that the lack of time and pressures to complete an economic stimulus package will prevent Congress from introducing a bi-partisan bill that included important protections for rivers including new Wild and Scenic River and Wilderness designations.

A silver lining in this disappointing news is that there is strong interest from Congressional leadership in passing the bill early next year, in the 111th Congress, when time is not such a significant factor as it will be during this lame duck session.

The package would have been the second largest Wild and Scenic package in history, safeguarding 852.8 miles of rivers in Oregon, Idaho, Arizona, Wyoming, and Massachusetts. The biggest Wild and Scenic package ever passed was an Oregon bill in 1988, which included 1,429.05 miles of rivers.

There are 166 Wild and Scenic rivers in our country. The Missouri River explored by Lewis and Clark, the Delaware River that cradled the American Revolution, and the Tuolumne River loved by John Muir are all protected by this visionary law. The National Wild and Scenic Rivers System is one of our country’s most important natural resource programs and protecting Wild and Scenic rivers enjoys strong bi-partisan support.

American Rivers Contact: David Moryc, American Rivers, 202-347-7550; Amy Kober, American Rivers, 206-213-0330 x23 www.americanrivers.org/gowild

A new initiative to promote cooperation between the United States and Mexico on Colorado River management will be discussed at the next public meeting of the Colorado River Citizens’ Forum (CRCF). The meeting will take place November 18, 4:00 – 6:00 p.m. (PST)/5:00 – 7:00 p.m. (MST) at the Women’s Improvement Club of Calexico, 320 Heber Avenue, Calexico, California.

The United States Section of the International Boundary and Water Commission (USIBWC) established the CRCF in 2003 to facilitate the exchange of information between the USIBWC and members of the public about Commission activities in Yuma County, Arizona and Imperial County, California.
Earlier this year, the International Boundary and Water Commission, United States and Mexico, established a Binational Core Group to facilitate U.S.-Mexico cooperation on Colorado River issues.   The Core Group includes representatives from the federal government, states, and non-governmental organizations. The objective of the joint cooperative process is to explore water conservation, shortage management, augmentation, and environmental issues with potential binational benefits in the areas of environmental, agricultural, and urban water use. USIBWC Public Affairs Officer Sally Spener will discuss the activities this group has undertaken.

The CRCF will also learn more about water management in Mexico from Engineer Jorge Soto of Mexico’s National Water Commission (Conagua). Engineer Soto will discuss the water conveyance and delivery system in Irrigation District 014 in the Mexicali Valley.   The district has over 200,000 hectares under irrigation. The region irrigates with Mexico’s allotment of Colorado River water and also relies on groundwater pumped from over 700 wells.

In other business, Gilbert Anaya, GIS Coordinator for the USIBWC, will present a briefing about the Morelos Diversion Dam sediment removal project. He will discuss the planning process and steps necessary to restore the operational capacity of the dam, located on the Colorado River near Yuma, Arizona-Los Algodones, Baja California. The USIBWC proposes to remove sediment build-up around the spillway that has caused loss of dam function and capacity in this reach. An update on the permitting process and habitat impacts will also be discussed.

The CRCF will also hear updates on two ongoing projects – the Drop 2 storage reservoir  and the lining of the All-American Canal. A groundbreaking ceremony was held in October for Drop 2. The reservoir, with a capacity of 8,000 acre-feet, is designed to store flows that are not currently captured in the lower Colorado River system. The All-American Canal project is currently under construction; the lining project is intended to conserve water by reducing seepage.

A staff report at the California Water Resources Control Board has advised that water rights assigned to the U.S. Bureau of Reclamation at the Auburn Dam project on the American River be formally withdrawn by the state.

The reasons relate to the classic water right abandonment principle in prior appropriation states: If you don’t use the water, you lose the right. In this case, the staff argued, BuRec “failed to construct the project and apply water to beneficial use with due diligence.”

The board is scheduled to act on the proposal on December 2.

The Auburn project goes back many decades, but it was largely halted in 1976 when geologic conditions (and possibly the collapse of the Teton Dam in Idaho that year) led to slowdown. Little work has been done since on the dam.

[Sacramento Bee, October 28]

A U.S. District Court judge has rejected an attempt by California irrigators and logging industry groups to strip protected status from five populations of wild steelhead trout.

The ruling rejects two separate challenges to steelhead protection in California. In the first case, anti-environment group Pacific Legal Foundation, which represents loggers and water users, argued that the National Marine Fisheries Service must make Endangered Species Act listing decisions based simply on the numbers of hatchery steelhead produced each year.

PLF asked the court to remove five separate populations of steelhead from the list of endangered species based on the presence of hatchery fish. In the second case, a group of Central Valley irrigators argued that ocean-going Central Valley steelhead population should be removed from the endangered species list based on their opinion that freshwater resident rainbow trout might someday replace extinct steelhead populations.

The ruling marks the third time that federal courts on the West Coast have rejected arguments that all fish must be treated the same when making ESA listing decisions. In the other two rulings — issued in June, 2007 by a federal district judge in Seattle and in August, 2007 by a federal district judge in Oregon — the courts confirmed that wild and hatchery salmon and steelhead should be treated differently when assessing the health of a fish population. NMFS’s scientific advisors and experts unanimously concluded that it would be “biologically indefensible” to eliminate ESA protection for endangered salmon and steelhead based on the abundance of hatchery fish. Scientists emphasized that these fish need habitat to sustain themselves into the future while hatcheries rely on an artificial environment that doesn’t produce salmon and steelhead that survive well in the wild. PLF, however, asserted that NMFS was legally required to ignore these issues and simply count the total numbers of fish in making ESA listing decisions.

In addition, the court agreed with the conservation and fishing groups that NMFS may protect steelhead without including all freshwater resident rainbow trout in the protected population. Here again, the court found that protecting steelhead was supported by unanimous scientific evidence. The court’s ruling cites extensively from reports of three different committees of independent scientists who all confirmed that steelhead form the irreplaceable backbone of the population. The court concluded that “[i]t is undisputed that the steelhead life form is indispensable to the species as a whole. It would have been arbitrary for the agency to ignore to that reality.”

Contact: ?Steve Mashuda, Earthjustice, (206) 343-7340 x 27 ?Dougald Scott, Northern California Council Federation of Fly Fishers, (831) 427-1394 ?Kate Miller, Trout Unlimited, (503) 827-5700 ?David Hogan, Center for Biological Diversity, (760) 809-9244

The U.S. Environmental Protection Agency is approving the Navajo Nation’s application to administer the underground injection control program for oil and gas-related injection wells.

The UIC program authorizes specific waste streams to be injected, and prescribes operating measures to ensure that underground sources of drinking water are protected. Under the Navajo Nation’s UIC program, the tribe will have authority to issue permits, conduct inspections, participate in enforcement actions, and support the EPA’s annual reporting.

The program will apply to roughly 400 existing oil and gas-related injection wells, known as class II wells, and any future wells located within the exterior boundaries of the formal Navajo Reservation, and on Navajo Nation tribal trust lands and trust allotments in the Eastern Agency – an area of Navajo Indian land located outside the boundaries of the formal reservation.

The EPA determined that the Navajo Nation’s class II UIC program is at least as stringent as the federal program. The Navajo Nation, which assisted the EPA in implementing and enforcing federal regulations on Navajo lands, modeled its program after the EPA’s program.
The Navajo Nation has worked diligently over the past several years to develop an effective program by enacting the Navajo Nation Safe Drinking Water Act—putting into law UIC regulations, and developing the technical, permitting and enforcement capacity to fully implement the injection well program.

The final rule will publish in the Federal Register within the next week. Additional information about this action is available on the EPA’s Web site at: http://www.epa.gov/region09/water/groundwater/navajonation