Ridenbaugh Press/Water Rights

The Shoshone-Bannock Tribes are at the center of several of the remaining issues in the Snake River Basin Adjudication, but talks of resoling them – possibly out of court – have been continuing this year.

A report filed with the court on May 24 outlines the state of talks on Blackfoot River issues, water storage and other matters.
Filers of the report included attorneys for the tribes and the federal and state governments.

In a summary it said:

Several meetings and conference calls have taken place since our last status report, and draft documents have been shared and further refined. There are essentially three committees doing work: A technical sub-committee, a legal sub-committee, and a plenary committee comprised of technical, legal and policy representatives of all interested parties. All three committees have met several times in 2010. The plenary committee has met on several occasions during this period, including March 2, 2010, April 14, 2010, and May 14, 2010.
The committees continue working on two documents. The first, the Blackfoot River Water Management Plan, is very close to complete. The technical committee is finalizing some equations in the document, and it is expected to be implemented to the extent appropriate this summer. Full implementation must await the installation of a gauging station which has not yet been funded or installed. It is anticipated that the Management Plan will be ready to sign in the fall, 2010.
The second document, currently titled “Draft Blackfoot River Settlement Agreement,” has been the subject of considerable discussion, and numerous revisions have been made or proposed, the most recent being May 10, 2010. This document is awaiting some decisions as to the acquisition of storage water to ensure that the 45,000 AF expectation of the 1990 settlement agreement is not exceeded. A third issue is who would have authority to execute the Settlement Agreement on behalf of the Basin 27 water users, and the related question of whether it is feasible to create an irrigation district to represent those water users. These issues will be worked on by the relevant members of the subcommittees in advance of next meeting of the plenary committee, which is scheduled to occur on June 1, 2010.

No specific finish dates were noted, however.

[see the Snake River Basin Adjudication Digest, July 2010]

Kittitas County officials say they’re moving ahead with new development plans in spite of Washington state concerns that not enough water will be available to supply them.

The county sent a letter advising state officials of that; the state’s response is pending.

Meanwhile, the Washington Department of Ecology is proposing to adopt a new, permanent rule for managing underground water resources in upper Kittitas County to protect senior water users and streamflows.

New groundwater appropriations in upper Kittitas County have been regulated under emergency rule since July 2009. Unless new water withdrawals are mitigated, the current regulation halts new groundwater withdrawals until more is known about the impact that groundwater pumping may have on senior water users and streamflows in the Yakima River Basin.

In April, Governor Chris Gregoire directed Ecology to proceed to permanent rule making in compliance with the Administrative Procedures Act. This week, Ecology Director Ted Sturdevant signed a proposal to make permanent the regulation that allows new groundwater withdrawals only when the new appropriation is backed by an existing water right.

The proposal has been formally filed with the state code reviser and is posted online.

The proposed rule would prevent new, unmitigated groundwater appropriations until completion of a groundwater study that will characterize the relationship between groundwater and surface water in upper Kittitas County aquifers.

New housing and business developments and other new groundwater uses may occur in upper Kittitas County if they are shown to be “water budget neutral.” This may be achieved by obtaining an existing surface water right or a share of an existing water right to offset groundwater pumping.

Water use for structures with building permits vested prior to July 16, 2009, would be exempt from the new rule.

An open house and a formal public hearing on the proposed rule are scheduled for July 28, 2010, at Walter Strom Middle School in Cle Elum.

[see also Yakima Herald-Republic, June 24]

The Woodmoor Water and Sanitation District is just one of the many Front Range Colorado entities that seeks to buy water from the low-population (but not exactly drenched) Lower Arkansas Valley. It is finding that proposition increasingly difficult.

The Woodmoor district is located between Denver and Colorado Springs, in El Paso County.

On June 14, the Board of Directors of the Woodmoor Water and Sanitation District No. 1 completed contracts for additional water rights along the Lower Arkansas River.

The district’s board approved seven contracts for Holbrook Canal water, representing approximately 800 acre feet of water. This will be added to the 46.6 shares of Rocky Ford Highline that were put under contract by the board during previous meetings.

Woodmoor continues to fill in the pieces of its Renewable Water Plan to move the district away from dependence on Denver Basin aquifer water. On Dec. 30, 2009, Woodmoor filed in Water Court an application for approval of a plan to move water upstream from the lower Arkansas River to the district service area via exchange through a system of storage facilities. At its last meeting, the district contracted for a portion of the Stonewall Springs Reservoir site near Pueblo.

This plan will eventually replace the district’s current reliance on Denver Basin aquifers for most of its water. These aquifers for decades have provided plenty of water, but now far too many communities along the Front Range are draining this resource.

Not everyone is in favor, however. Objections have been filed from ditches that Woodland has previously contracted (in contracts worth about $4 million, producing about 1,800 acre-feet) for water rights: the High Line, Holbrook and Excelsior ditch systems. They companies have been pass-throughs, since individual operators have been the contractors.

Shortly after Woodmoor sought its transfers from the Lower Arkansas, the objections began to show up in water court.

One from attorney Stephen Leonhardt, representing the Southeastern Colorado Water Conservancy District, said that “The application is speculative, and is inconsistent with statutory and case law requirements for appropriative rights of exchange.”

[see also the Pueblo Chieftain, June 23]

Everyone involved in water in Nevada knew what the Supreme Court decision of January 28 (that is, Great Basin Water Network v. Tracy Taylor) was: A decision that threw into question a mass of water rights and existing water uses around the state.

The decision was an appeal from district court reviewing what the court said was a narrow issue: “Whether the State Engineer violated his statutory duty under NRS 533.370(2) by failing to rule on Southern Nevada Water Authority‘s 1989 water appropriation applications within one year.” State law included that requirement at the time, waivable only if the parties agreed to an extension, which none did in the years following. The law was changed in 2003 “to permit the State Engineer to postpone action on pending applications made for municipal use. The district court determined that the amendment applied to SNWA’s 1989 applications”, because it found those applications were still “pending” – but the Supreme Court reversed that determination.

On June 20, however, the Supreme Court withdrew that decision and replaced it with another. Initially at least, a variety of parties (including some of those prevailing the first time) said they were happy to see the new one, because it offered clarification of what rights and agreements may still be valid.

The Southern Nevada Water Authority, which would be among the hardest hit prospectively by the earlier opinion, said in a statement:

In today’s judgment, the Nevada Supreme Court emphasized the need to balance due process issues and fairness to water right applicants.

“Voiding the State Engineer’s ruling and preventing him from taking further action would be inequitable to SNWA and future similarly situated applicants,” the opinion stated.

To address concerns among east-central Nevada residents who moved to the region after the application protest period expired in 1989 and other interested parties, the Nevada Supreme Court instead ruled that “the proper and most equitable remedy is that the State Engineer must re-notice the applications and reopen the protest period.”

SNWA General Manager Pat Mulroy said she was elated by the decision, which addressed the court’s concerns without unduly punishing an agency that had complied with all state requirements.

“This is a very fair outcome, because it allows protestants to have their voices heard without turning 100 years of water law on its ear and bogging down the water right permitting process. With Lake Mead—the primary source of water for two million Southern Nevada residents—imperiled by drought, we need to get all of the necessary permits in place so we can be ready to draw upon this available water resource if conditions warrant. This ruling puts us back on track.”

But the Great Basin Water Network, which had sued the state and largely prevailed the first time around, was not unhappy either:

The Nevada Supreme Court today re-affirmed its earlier unanimous decision that the Nevada State Engineer violated the due process rights of Utah and Nevada citizens in awarding tens of thousands of acre feet of groundwater to the Southern Nevada Water Authority to export to Las Vegas.

The Court sent SNWA back to square one, vacating the previous rulings of the State Engineer in valleys that were previously protest and requiring the Engineer to re-notice and re-open the protest period on all 1989 SNWA applications. The Court also clarified that its ruling pertains only to protested applications, relieving anxiety throughout Nevada that many unrelated applications pending before the State Engineer would be put in jeopardy.

The original suit, brought by the Great Basin Water Network, Defenders of Wildlife, Trout Unlimited, and fifty individual area residents, claimed that the State Engineer had failed to take timely action on the original water applications filed in 1989 and had improperly excluded groups and individuals from participating as protestants in the water appropriation process.

“The Nevada Supreme Court’s new, modified opinion confirms its central holding in this case,” said Simeon Herskovits, lead attorney for the opposition. “The Court has held that the State Engineer’s previous rulings on SNWA’s contested 1989 applications effectively are void, and those applications must be subjected to a new public notice and re-opened protest process, thus creating a new opportunity for anyone with an interest to protest these dangerous applications and challenge the State Engineer’s flawed previous rulings.”

“The Court also expressly addressed and disapproved of the efforts of SNWA and allied interest groups to manipulate the Legislature to retroactively change the record as to the 2003 Legislature’s intent regarding its statutory amendments to state law affecting the 1989 applications,” Herskovits said. “The Court pointed out to do so would be illegitimate and would not merit deference from the courts,” he said.

The case now goes back to district court and then to the state engineer for further action.

[see also Reno Gazette Journal, June 20]

The Bureau of Reclamation has released for public review the Draft Environmental Assessment and Draft Finding of No Significant Impact for the long-term annual exchanges of up to 4,000 acre-feet of water between Paramount Citrus Association and related companies and the Tulare Irrigation District.

The project would allow the annual exchanges, from 2010 through 2027, from the Tulare Irrigation District Central Valley Project water allocation, under a Friant Division long-term water service contract, for an equal amount of Paramount Citrus Association’s non-CVP water that is derived from its ownership of Rayo Ranch.

Rayo Ranch holds shares to Wutchumna Water Company (WWC). WWC began diverting Kaweah River water in the 1800s, historically diverting an average of 56,000 acre-feet per year under its pre-1914 appropriative right. The Rayo Ranch water would be delivered to TID for use within its contract service area, in compliance with the Reclamation Reform Act and Friant Biological Opinion. PCA and Paramount Farming Company have historically transferred and exchanged water among their companies.

TID’s CVP water would be delivered to various PCA and Paramount Farming Company lands in Cawelo Water District, Kern-Tulare Water District, Madera Irrigation District, North Kern Water Storage District, Shafter-Wasco Irrigation District, and Southern San Joaquin Municipal Utility District.

The Draft Environmental Assessment/Draft Finding of No Significant Impact were prepared in accordance with the National Environmental Policy Act and are available online.

The public can continue sending comments until Aug. 31, 2010, on two proposed water management rules for the Grays-Elochoman (WRIA 25) and Cowlitz (WRIA 26) watersheds, the Washington Department of Ecology said.

The comment period was to end June 4, 2010. Ecology added the extra time to field more questions and comments about the draft rules.

Ecology held hearings in Morton and Longview to gather public input in late May
2010. At those meetings and in comments submitted to the agency so far, Ecology heard:

• Concerns that wells will be metered and people charged for water use. (Ecology response: metering is not required in either rule draft.)

• Feedback that the water reservation size for future permit-exempt wells is too small.

• General comments about how reservations for future water use will be divided among users.

• Other questions and comments about the purpose of the instream flow rules and how the watershed plan was developed.

Ecology will respond to all comments in a publication titled “Concise Explanatory Statement” before a final decision is made on either rule.

Ecology developed rule proposals for WRIAs 25 and 26 primarily to:

• Provide certainty that water is available to meet future needs.

• Protect those who already have water rights and stream flow critical to salmon and other in-stream uses.

The draft rules are based on recommendations developed by the locally led
watershed planning unit. The local cities and counties provided the planning unit with the information and data that was used to develop the recommendations. Cowlitz, Lewis, Skamania and Wahkiakum counties approved the joint plan covering both watersheds in July 2006.

The local watershed planning unit is meeting July 15 and Aug. 12 to consider
updating some of its original recommendations. Once Ecology receives new
recommendations, the agency can make decisions about potential changes to the proposed rules. The public is welcome at both meetings, which begin at 2 p.m. at the Cowlitz Administration Building.

If the proposed rules are significantly revised, Ecology will announce a new
comment period. All comments received – whether during this current comment period or a future comment period – will be evaluated and answered before rules are adopted.

As promised, Ecology will return to Morton and Longview for community meetings to further discuss the rules. These dates will be set later this summer as new information is available.

The New Mexico Interstate Stream Commission voted on June 16 to postpone action on an innovative water agreement between the Commission and Intel Corporation.

“This proposed agreement between the Interstate Stream Commission and Intel is an excellent example
of a public-private partnership that will greatly benefit our community as well as one of New Mexico’s largest employers and will also protect senior water users and our environment,” said Interstate Stream Commission Chairman Jim Dunlap of Farmington. “Nevertheless, in the interest of openness and
transparency we believe it is in the best interest to delay action to allow the public to better understand the agreement.”

Under the proposed agreement the Interstate Stream Commission will receive water rights and funds from Intel in exchange for assuming part of Intel’s obligation to offset Rio Grande depletion impacts that result from Intel’s ground water pumping. The Interstate Stream Commission plans to meet that
obligation using water that it has available to it, including water rights Intel will convey to them, relinquished Rio Grande Compact credits and other sources available to the Interstate Stream Commission.

“This proposed agreement will cut down transfer of water rights out of agriculture. It provides water and money to help with protection and insulation from potential endangered species act threats to water users. It ensures full offset of all future Intel stream depletions,” said Interstate Stream Commission Director Estevan López. “This agreement is good for New Mexico from many different perspectives.”

Under the terms of the agreement, the state would receive about 741 acre-feet of senior water rights that would ultimately be placed in the Strategic Water Reserve for ecological projects aimed at solving endangered species issues in the Middle Rio Grande. In addition, Intel will also provide $1 million a year for 10 years, adjusted for inflation, for the Strategic Water Reserve and for dealing with endangered species issues on the Middle Rio Grande.

Two Rivers Water Company has entered into a two year lease agreement with the Orlando Reservoir No. 2 Company LLC to supplement water for its farming operations in Pueblo County, Colorado.

The water lease completes the first step in a process to acquire the water rights which include 3,100 acre feet of additional storage and 19 cubic feet per second of direct flow. The water rights leased and to be acquired are “Reed Decrees” and among the most senior rights on the Huerfano River, in southern Colorado. The lease will ensure Two Rivers’ has the necessary water to expand its farming operations to 2,500 acres in the 2011 growing season.

John McKowen, CEO of Two Rivers Water Company, stated, “This is another step forward in our step by step process of re-building farming operations on the Huerfano-Cucharas Irrigation Company ditch system. By repairing the ditch system and enhancing our water rights we can ensure we will receive the water necessary to plan and develop profitable farming operations.”

The Bureau of Reclamation has released a Draft Environmental Assessment and Draft Finding of No Significant Impact for the proposed construction of up to six new wells within the Grassland Water District.

Reclamation would provide funding under Title IV of the American Recovery and Reinvestment Act of 2009 for the construction of up to six new wells within the Grassland WD. The new wells will supplement the refuge and private wetlands water supply associated with the Grassland Resource Conservation District.

The Draft EA/FONSI was prepared in accordance with the National Environmental Policy Act and is available for public review and comments. The documents are available online.

The Bureau of Reclamation has selected Walter Larrick to serve as the Yakima Field Office Manager in Yakima, Wash. He replaces Dawn Wiedmeier who accepted the position of Deputy Area Manager for the Columbia-Cascades Area Office.

Larrick began his Federal career as a fishery biologist with the Yakima Field Office in 1992. Before coming to Reclamation, he worked in western Washington, Alaska, and eastern Washington as a fishery biologist.

[see Bureau of Reclamation releases, June 15]