Ridenbaugh Press/Water Rights

Reclamation announced on February 28 that it will issue a Lease of Power Privilege to the Delta-Montrose Electric Association and the Uncompahgre Valley Water Users Association to develop hydropower resources on the South Canal, a feature of Reclamation’s Uncompahgre Irrigation Project.

Reclamation will issue the LOPP based on the final environmental assessment and Finding of No Significant Impact for the proposal. These documents have been completed in compliance with the National Environmental Policy Act to address the effects of the construction and operation of hydropower facilities.

Federal policy encourages non-federal development of environmentally sustainable hydropower potential on federal water resource projects. The LOPP will ensure that the development of hydropower is consistent and compatible with existing operations and purposes of the Uncompahgre Project.

The final EA and FONSI are available on Reclamation’s web site.

Reversing a district court – not SRBA Court – decision, the Idaho Supreme Court on May 26 said that the Idaho Department of Water Resources has authority under Idaho law to impose term conditions on Idaho Power Company water licenses even if the permit didn’t include the condition.

The case, Idaho Power Company v. Idaho Department of Water Resources, concerned right 03-7018, at the Brownlee Dam on the Snake River. It was decided originally by 3rd District Judge Susan Weibe.

The case stemmed from the company’s application in December 1975 for a hydropower right at Brown (at Washington County). The department approved it the next month, and said the water had to be applied to beneficial uses by February 1980. Idaho Power eventually asked for an extension on that, but said in August 1980 that the beneficial use was underway.

During that same period, the legal wrangling that led to the Swan Falls decision early in the 80s – and implicated water rights across much of the Snake River basin – was underway. The Supreme Court recalled, “As a result, Idaho Power filed a lawsuit against the State and various water users, seeking a determination of the validity of its water rights at the Swam Falls Dam and seeking a ruling that its water rights were not subject to future upstream depletion. One of the other issues in the case brought by Idaho Power involved a subordination clause in the federal license that Idaho Power had obtained for its Hells Canyon Project. The district court held that the subordination clause in the federal license applied to all of Idaho Power’s water rights used for hydropower purposes at all of its facilities on the Snake River watershed, including its facilities at Swan Falls. On appeal, this Court reversed the district court’s holding in that regard, and remanded the case for further proceedings.” Much of that activity growing out of Swan Falls changed the legal and water landscape of the region.

Then, the Supreme Court noted, “On November 16, 2007, the Department issued a preliminary order approving a license for water right no. 03-7018. The license contained the following term condition: The diversion and use of water for hydropower purposes under this license is subject to review by the Director after the date of expiration of the Federal Energy Regulatory Commission license for Brownlee Dam. Upon appropriate findings relative to the interest of the public, the Director may cancel all or any part of the use authorized herein and may revise, delete or add conditions under which the right may be exercised. This term condition was not included in the original permit. Idaho Power subsequently filed a protest and petition for hearing, objecting to the inclusion of the term condition in the license. Idaho Power argued that because the condition was not included in the water right permit, the term condition was unlawful.”

Idaho Power later pulled its protest but did ask for a judicial review, saying the department didn’t have authority to insert a new term condition in the license.

The Supreme Court said flatly that the department had the authority:
“In this case, the statute is unambiguous, and it is unnecessary for this Court to engage in statutory construction because the plain language of I.C. § 42-203B gives the Department the authority to include a term condition in either a permit or a license. As mentioned above, I.C. §42-203B(6) provides, ”The director shall also have the authority to limit a permit or license for power purposes to a specific term. ” I.C. § 42-203B(6) (emphasis added). The Legislature’s use of the disjunctive “or” specifically gives the Department the authority to include a term condition at the licensing stage, not just at the permitting stage as Idaho Power contends. Furthermore, it is important to note that the statute specifically states, “[s]ubsection (6) . . . shall not apply to licenses which have already been issued as of the effective date [July 1, 1985] of this act.” I.C. § 42-203B(6). In other words, the Legislature included a grandfather provision in the statute that prohibits the Department from adding a term condition in any license issued prior to the statute’s enactment. Importantly, the Legislature did not include any provision limiting the Department’s authority to insert a term condition in a license, such as Idaho Power’s, that is issued after the statute was enacted.”

In a related point, the court said, “it appears that Idaho Power is arguing that it obtained a vested water right akin to a license prior to the effective date of the statute, and because the statute specifically prohibits the Department from including term conditions in licenses issued prior to the statute’s enactment, the Department lacked the authority to include the term condition in Idaho Power’s license. On the other hand, the Department argues that Idaho Power did not have a vested right in the water until it received the license from the Department.”

[see the SRBA Digest for more.]

The Bureau of Reclamation on December 30 announced the availability for public review and comment a draft Environmental Assessment concerning an agreement to supply water to Pacific Gas & Electric Company’s Colusa Generating Station. Under the agreement, a maximum of 180 acre-feet of Central Valley Project water would be supplied per year for up to 30 years.

Under the proposed agreement, the Glenn-Colusa Irrigation District would annually transfer Project water to the County of Colusa; the Holthouse Water District would transfer Project water to the County; and the County would supply Project water to the CGS. Water deliveries under the proposed transfers to the County, Holthouse, and the CGS would be through the Tehama-Colusa Canal using existing turnouts.

As aluminum manufacturer Alcoa struggles to keep its hydropower license on the Yadkin River, it is trying to reopen discussions, and start some new ones, with both friends and critics in North Carolina. So far, it may not be getting many takers.

The firm’s hydropower federal license, similar to those around the country which typically are renewed after an extensive process, is on the line. The Raleigh News & Observer summed up the recent problem: “The company recently suffered a setback on the way to a license renewal when it was revealed in a court hearing that company representatives discussed hiding from state regulators information about how water-improvement devices would work. When company e-mail exchanges surfaced, the state revoked a certification Alcoa needs to get the federal license.”

That is not necessarily the end of the story; administrative proceedings still lie ahead. But Alcoa is abruptly in need of more local friends, and it is offering benefits to the area.

The Charlotte Observer asked Governor Bev Perdue about the situation, and she replied (in a video recording), “You can tell them not to call me, and I would bet the Secretary of Commerce won’t be real eager to compromise. It’s beyond that.”

Water from Sullivan Lake will help solve critical water shortages in Northeast Washington, thanks to an agreement signed on October 22 in Newport.

Pend Oreille County’s Public Utility District No. 1 and the Washington State Department of Ecology signed a Memorandum of Agreement in a special ceremony at the district office in Newport.

Under the agreement, the Pend Oreille PUD will release 14,000 acre-feet of water from Sullivan Lake each summer, when the water is needed most. In the past, water releases have occurred only during winter.

Ecology’s Office of Columbia River (OCR) will allocate two-thirds of that water—about 9,400 acre-feet—to new water rights for Northeast Washington communities, including Pend Oreille, Ferry, Lincoln, Stevens, Okanogan and Douglas counties. This water could facilitate future residential development in the area worth $1.4 billion, increasing the property tax base by providing water for 23,500 homes.

The remainder will be used to increase stream flows to protect fish and wildlife habitat and recreational uses.

In return for the water, the PUD will receive a one-time payment of $14 million from the Columbia River Basin Water Development Account. The Legislature established the account in 2006 to help pay for water storage and conservation infrastructure projects. The money will be used to help pay for work projects that will improve water quality in the lake, restore habitat and stream flows, enhance local recreation opportunities, and lower water temperatures to healthier levels.

The $14 million state investment could not only add $1.4 billion to the tax base in our northeastern communities but it could generate $4 million per year in economic activity.

Ecology Director Ted Sturdevant said, “I want to thank all of the many partners who helped achieve this breakthrough in making new water available to a region of our state that really needs it. This was possible because of vision provided by Gov. Gregoire and the Legislature, and because of hard work by everyone who supported this effort.

“Together, we’re building a new future for Washington. The Sullivan Lake water supply agreement is the latest example of how collaborating on water solutions creates big wins all around – while fighting over diminishing supplies leads nowhere,” Sturdevant said.

Ecology’s Office of Columbia River became interested in the water storage potential at Sullivan Lake when it learned that the Pend Oreille PUD planned to surrender its license for the Sullivan Creek Hydroelectric Project. That led to discussions about how to manage Sullivan Lake in the future.

Chief Engineer David Barfield signs the largest water right permit in Kansas history.

On September 22, Kansas Chief Engineer David Barfield signed a water appropriation permit granting the largest water right in the history of Kansas. File No. 47,275 authorizes approximately 2.5 million acre-feet of water per year for hydropower use at the North Lawrence Generation proposed powerhouse on the north side of the Kansas River in Lawrence, opposite the existing Bowersock Mills & Power Company hydropower plant. This is for nonconsumptive, flow-through water use.

To put this authorized quantity in perspective, the current estimated capacity of Milford Lake (largest in Kansas) is about 350,000 acre-feet in the multipurpose pool (not including temporary flood storage). The new permit authorizes Bowersock Mills & Power Company to divert seven times the volume of water in Milford Lake for flow-through hydropower generation at its North Lawrence Chief Engineer David Barfield signs the largest water right permit in Kansas history.

The permit includes a number of special conditions to ensure that the new use does not interfere with Kansas River Water Assurance District releases. It also requires collecting special data and ensuring proper coordination of operations. This is particularly important because there are several large municipal water rights downstream.

The permit does not constitute a water right unless or until the permit holder timely completes diversion works and lawfully puts water to beneficial use during the perfection period. If this occurs, a water right certificate will be issued.

Incidentally, Bowersock holds the second-largest water right in Kansas (and one of the oldest water rights in the state), which authorizes using 1 million acre-feet of water per year for hydropower at the existing south powerhouse on the Kansas River at Lawrence. A separate water right allows diverting an additional 150,000 acre-feet of water per year through the south powerhouse.

Bowersock said of itself that “The Bowersock Mills & Power Company is the only operating hydroelectric plant in Kansas. We welcome the public to visit and tour the plant. Visiting Bowersock is a great way to learn about Kansas history and demystify the production of electricity. Learning more about this 132 year old plant can help you understand electricity and the history of its production – but perhaps more importantly, it can help you think about the future of energy – something we all need to consider.

“A part of the flood control system of the Bowersock Dam. The baffles can be raised or lowered to control the amount of water that flows over the dam and is diverted to the power plant. A part of the flow control system of the Bowersock Dam. The baffles can be raised or lowered to control the amount of water that flows over the dam and is diverted to the power plant.

“In business since 1874, Bowersock currently provides the City of Lawrence with much needed river flow control for the public water intakes. Additionally, the water that passes through the plant produces up to 2.35 Megawatts of renewable non-polluting electrical power – enough to power nearly 1,800 homes. Bowersock is proud to be certified as a Low Impact Hydropower Facility. Achieving Low-Impact status is difficult, and as of Fall, 2008 there were only 31 hydroelectric power plants in the nation that had achieved this certification.”

Fishing businesses and conservation groups filed suit on June 3 against the Washington Department of Ecology, saying the agency has failed endangered salmon by preventing beneficial water releases over dams on the Columbia and Snake Rivers. The water releases over dams, or spill, is critical to aid migrating salmon and steelhead past the dams.

“I am fed up with Ecology’s willingness to allow the hydro-system to kill too many endangered fish and ignore both science and economic reality,” said Glen Spain, Northwest Regional Director of the Pacific Coast Federation of Fishermen’s Associations, a trade organization for West Coast commercial fishing families. “This case seeks to give salmon more of what they need to survive, as well as help the coastal and inland communities that depend on those fish for their livelihoods.”

“We have spent too much money and put in too much effort to bring back our Columbia Basin salmon and steelhead to stand by while Ecology denies the public’s fish their best chance of survival,” said Norman Ritchie, Government Affairs Director of the Association of Northwest Steelheaders.

The lawsuit, filed in Thurston County Superior Court, follows Ecology’s recent decision to deny a petition filed on behalf of the Pacific Coast Federation of Fishermen’s Associations, Northwest Sportfishing Industry Association, the Association of Northwest Steelheaders, and Idaho Rivers United to change the standards governing how much water may be released over the dams. The groups are represented by Earthjustice, a non-profit public interest law firm.

The petition sought to allow the U.S. Army Corps of Engineers to release more water in greater volume than is permitted under Washington’s current restrictions. Increasing the amount of water released – or “spilled” – over the dams increases salmon survival by allowing more fish to avoid the dam’s lethal turbines as they make their journey to the ocean.

An advocacy group seeking a free-running Eel River in northern California has filed a lawsuit at the state’s water rights governing board, hoping to force the Pacific Gas & Electric Company to tear down two dams it said are archaic.

The Epoch Times in California reported that “Peter Moreno of PG&E said they have not yet reviewed Friends of the Eel River’s petition but that the water licensing process is very thorough and all stake holders and interested groups are consulted in the process. Flow adjustments at Potter Valley have been made in the past, he said.” The company did not otherwise make a comprehensive statement on the subject.

The Friends of the Eel River said it:

… brought legal action before the State Water Resources Control Board, in an attempt to stop Pacific Gas and Electric Company, from destroying two northern California rivers essential to the restoration of California’s once-vibrant billion dollar salmon industry.

The FOER legal action challenges the diversion of almost all of the flow of the Eel River to PG&E’s Potter Valley hydroelectric project (PVP), consisting of two dams and a diversion tunnel. During the dry season, almost 98% of the Eel River flows are diverted into the Russian River. “The State Board has an obligation to ensure that PG&E’s use of water is reasonable and does not harm public trust resources in the Eel River,” noted environmental attorney Ellison Folk, with the law firm Shute, Mihaly & Weinberger. PG&E’s Potter Valley Project, however, is damaging the public trust resources by threatening the survival of the remaining populations of the state and federally listed endangered salmon and steelhead, in exchange for a negligible amount of energy it produces. Continue Reading »

Informal discussions between Utica Power Authority and the Calaveras County Water District appear to be over, and the lawsuit has begun.

Water rights in the North Fork Stanislaus River, Beaver Creek, Mill Creek, Angels Creek and French Gulch and a number of associated ditches and streams are involved. UPA’s specific stake has mostly to do with hydropower facilities, among the oldest in California.

Utica Power’s statement on the action: Continue Reading »