Ridenbaugh Press/Water Rights

A collection of small and cash-poor Indian tribes in southern Utah may catch a break – and obtain water rights they long have sought – with state legislative action that would simply assign the rights to them.

An article in the St. George Spectrum said that passage of the Indian Recognition Act in 1980 gave disputed lands to bands of Paiutes in Utah – Indian Peaks, Cedar, Kanosh, Koosharem and Shivwits – but not the water rights which would ordinarily have been attached to the land. Others have had use of the water. 

The Shivwits eventually obtained those rights after suing for them, but the other bands have not been able to afford the legal costs.

The paper cited state Senator Dennis Stowell, R-Dist. 28, as saying “there are three possible ways to resolve this dilemma: Sell the water rights the band owns in Beaver County to purchase water rights in Iron County, take the matter to court for a judge to decide or legislatively mandate the transfer of the band’s water rights to its reservation.” It said Stowell plans to offer a resolution in support of the Indians, to allow them use of the water.

Michigan and Ontario media went live just before Christmas with a round of arguments about whether Detroit is or isn’t taking for its drinking water, Canadian water for which it has no permit.

This much is undisputed: The U.S. city pulls in water, up to 32 million gallons per year, through a pipe that runs about 100 yards into the Detroit River – which forms its boundary with Windsor, Ontario – over the line into Canada. It has been doing this since 1964, and there is no specific permit on record allowing the water use.

The Ontario Ministry of the Environment on December 22 told the Hamilton Spectator, “The City of Detroit was unfamiliar with Ontario requirements for water takings and has never had a permit to take water.”

The Spectator wrote,  ”Detroit’s been stealing Canadian water for 44 years. . . . Alerted to the illegal water grab when Detroit conducted a screening under the Canadian Environmental Assessment Act for maintenance work on its southwest water treatment plant in 2006, the ministry now plans to exempt the city from provincial regulations. The public has until Jan. 31 to comment on a proposal to let Detroit continue to operate the intake without a permit ‘because of the historical nature and unique circumstances.’ It would also be exempt from fees ‘as administering the charge would be onerous and difficult to enforce.’”

However, the next day another paper, the Windsor (ON) Star, offered the headline, “Detroit didn’t steal Canadian water.”

It contended, “If Detroit’s been stealing our water, we’ve been an aware and willing victim for 45 years. Media reports Tuesday alleging the Detroit Water and Sewerage Department has been taking 121 billion litres of water from the Canadian side of the Detroit River without our knowledge came as a surprise to George Ellerwood, the department’s spokesman. ‘As far as we are concerned we’ve been doing it since late 1963 with the full and complete knowledge of the Canadian government,’ said Ellerwood. ‘In the 1960s when the intake was installed, because there were no provincial regulations at the time regarding the taking of water, we negotiated an agreement with the federal government. No-one has suggested we were doing anything improper or illegal.’”

It suggested that some of the confusion may have arisen from structural changes in Canadian government.

Prescott city has won a key ruling from the Arizona Department of Water Resources, not for water rights as such but a determination that a source of water can be included in the city’s estimate of 100-year assured water sources. The determination of what water resources can be included – and the resulting size of the city’s assured water supply – are critical in growth and development regulation in the area, and in state allowances for which water supplies the city can use at all.

The source in question comes from an aquifer lodges near the Verde River, which has a limited water supply. The decision to even allow its inclusion for the city for planning purposes draw some concern, especially around the Phoenix area, where Verde water also is used.

The department also threw out the Salt River Project as a party in the case.

Prescott has been considering construction of piping to the aquifers around Big Chino.

The Arizona Republic newspaper reported that “The plan has stirred opposition from a Phoenix water provider, environmental groups and some Prescott residents. Several have already filed appeals of the state decision, and it’s likely one or more of those foes will sue Prescott to block or alter the project.”

Court action on the decision still is likely.

[see Phoenix Arizona Republic, December 23]

A small citizens group has presented the selectmen of the small town of Shapleigh, New Hampshire, with a proposed ballot issue aimed at protecting water in the area from undue extraction.

The measure, which has obtained a significant number of local petition signatures, would amend an earlier adoption (on September 20) by town voters, 204-38, of a local moratorium on large water extraction. That measure included a six-,onth moratorium on such activities.

The Reno Gazette Journal is reporting that a former treasurer of the Panther Valley Water Users Association is under investigation of selling for personal profit water rights that the association didn’t even own, among other things.

Investigators said the treasurer, Robert Klein, may have embezzled $2 million

One investigator was quoted as saying, “Mr. Klein has fled the area and this is an ongoing case. Once there’s a warrant, we’ll seek him out then. It’s a complicated case. This guy had carte blanche for eight years.” [Reno (NV) Gazette-Journal, December 21]

The Bureau of Reclamation has completed the Yakima River Basin Water Storage Feasibility Study Final Planning Report/Environmental Impact Statement and is distributing it to the public in anticipation of its formal filing with the US Environmental Protection Agency on December 19.

The purpose of the storage study is to develop and evaluate alternatives that could create additional water storage for the Yakima River basin and assess their potential to improve anadromous fish habitat, enhance the reliability of irrigation water supplies during dry years, and provide water to meet future municipal water demands.

In the Final PR/EIS, Reclamation identifies and evaluates four alternatives – three joint alternatives and the No Action alternative. The four alternatives are: ” No Action ” Black Rock ” Wymer Dam and Reservoir ” Wymer Dam Plus Yakima River Pump Exchange
Reclamation selected the No Action alternative as the preferred alternative because the evaluation revealed that each joint alternative:

” Required significant investment of federal funds ($1 billion to $7.7 billion) plus millions of dollars in annual operating costs ”

Did not provide positive benefit-cost ratios required to be considered economically justified ”

Accrued natural resource benefits, for anadromous fish, in varying degrees ”

Met the municipal water supply goal ”

Did not have acceptability by the community at large as a stand-alone approach to meeting the Storage Study goals ”

Did not adequately meet the four criteria, completeness, effectiveness, efficiency, and acceptability, used to evaluate federal water resource projects

Only the Black Rock alternative consistently met the irrigation water goal. “None of the alternatives adequately met the criteria or were economically justified.

Additionally, they could not provide adequate fishery benefits to be considered the preferred alternative,” said Gerald Kelso, manager of Reclamation’s Upper Columbia Area Office.

Normally, following publication of a Final EIS, Reclamation would not make a decision on how to proceed for at least 30 days; however, since this Final PR/EIS contains new information about the Black Rock Alternative seepage mitigation features, there will be a 45-day comment period for the Final PR/EIS. Responses to these comments will be included in a record of decision, anticipated to be completed in the spring of 2009.

Contact David Kaumheimer, Environmental Program Manager. Phone: (509) 575-5848 ext. 232; Fax: (509) 454-5650. TTY users may dial 711 to obtain a toll free TTY relay. Or email: storagestudy@pn.usbr.gov.

The Pechanga Band of Luiseno Indians and the Rancho California Water District announced December 17 an agreement on a framework, developed with the assistance of the Metropolitan Water District and a team appointed by the United States Department of Interior, that will resolve Pechanga’s longstanding claims to water rights in the Santa Margarita River Basin.

The framework agreement will provide Pechanga with rights to water that are equal to those that were set forth in the original federal court Fallbrook Decree. Pechanga will receive water from the Wolf Valley Basin and other sources as outlined in a new supply agreement expected to be entered into among Pechanga, Metropolitan Water District and the United States on behalf of the Tribe. No other water user in the Santa Margarita Basin will be affected by this agreement.

Pechanga has also agreed to provide a portion of the settlement contribution that they expect to receive from the federal government to the Rancho California Integrated Resource Plan Project, an initiative that will enhance water supply and quality for Southwest Riverside County through 2050. This could result in anywhere from $10 to $20 million in federal funds for the project.

“This framework agreement, while still subject to additional federal review and approvals, marks a historic milestone in our long battle to preserve our water rights,” said Tribal Chairman Mark Macarro.

“Generations of Pechanga leaders have struggled to secure our access to this important resource. This agreement will allow all parties involved to avoid costly and protracted lawsuits and finally bring about a resolution to this struggle.”

The agreement will provide the Rancho California Water District with the benefits of a Dry Year Supply Agreement, which will permit Rancho to supplement its water supplies in dry years.

The LCRA Board of Directors approved four resolutions related to the LCRA-SAWS Water Project, giving guidance focused on protecting and benefitting the lower Colorado River basin. As work on the feasibility studies progresses, LCRA staff requested guidance on key policy assumptions related to: projections for firm municipal and industrial water needs in the lower Colorado River basin; planning for expected needs for agricultural irrigation; use of groundwater for agricultural needs and how water reserved for future use should be factored into the project studies.

The LCRA-SAWS Water Project is a water-sharing proposal to develop alternative supplies and conserve water that could help meet long-term needs in the lower Colorado River basin and the San Antonio area. LCRA and the San Antonio Water System are in the fifth year of an in-depth study of the proposal’s technical, environmental and financial feasibility.
At its December 17 meeting, the Board directed staff to include in the project studies: updated water projections for municipal and industrial growth that is occurring and was not reflected in previous planning projections; adequate water supplies to meet agricultural water needs on an interruptible basis; and limitations on groundwater use for dry periods when there is not enough surface water. The Board also directed that 50,000 acre-feet of water reserved in LCRA’s Water Management Plan will be kept in reserve and that LCRA will explore opportunities to make water supply available to the project.

LCRA staff will incorporate the guidance from the Board into the feasibility studies and will have results in spring 2009 that will show whether project requirements can be met and how much water may be available for SAWS. Project plans call for state and federal permit applications to be filed within the next two years and a draft implementation plan to be presented to the LCRA Board of Directors in 2015. At that time the LCRA Board must find that the project will adequately protect and benefit the lower Colorado River basin in order for the project to go forward. Also, the SAWS Board of Trustees must determine whether the amount of water and cost meets SAWS’ needs.
LCRA will hold project update meetings on February 3 in El Campo and Feb. 5 in Burnet.

For more information, please contact 1-800-776-5272, Ext. 7208, or lcrasawswaterproject@lcra.org.

Ken Salazar

Colorado Senator Ken Salazar appeared on Tuesday to be a day away from becoming the secretary of Interior-designate in the new Obama Administration. An attorney and a former state attorney general, he may be the most water rights-attuned Interior secretary in decades.

Some of the reason for that is personal. As his Senate biography notes, he has deep background in the water rights-sensitive “Colorado’s San Luis Valley, where they [his family] have farmed and ranched the same land for five generations.” He has been a farmer himself, and practiced water law in private practice for more than a decade; he was highly active in the subject on the state level as well, especially as director of the state Department of Natural Resources. And Colorado has been one of the most water rights-active states in the country.

News media nationally reported today the probable Interior announcement. The Washington Post remarked, “Salazar, whose selection by Obama was confirmed by Democratic officials on Monday, will become a key player in setting the new administration’s environmental, energy and land-use policies. The Interior Department is tasked with conserving most federally-owned land and managing programs related to Native American populations and territories.”

The government of Newfoundland and Labrador took a major step Tuesday with its quick passage of legislation essentially seizing much of the property owned in the province by the industrial giant AbitibiBowater. By Wednesday, the blowback began including the prospect of legal action.

The province’s action was quick: The measure, proposed by the provincial government, was introduced on Tuesday and passed before the day was out. The seizure was broad-based, and water rights were only a component of it – but were included among the assets considered the be “repatriated” to the province.

The firm said on Wednesday, through spokesman Jean-Philippe, that “We were just basically kicked out of the province by a last-minute piece of legislation . . . Because of what we have on the table, we will have to review our options, including of course any legal considerations. AbitibiBowater also needs to assess how this destabilizing precedent opens the door to some potential Canada-U.S. trade issues.”

AbitibiBowater is a major producer of newsprint, wood and other products, and has facilities elsewhere across Canada in other provinces.

The statement from Premier Danny Williams: Continue Reading »