Ridenbaugh Press/Water Rights

The idea of drawing massive amounts of water from the Flaming Gorge area – mainly in Wyoming – and piping it southeast to the Colorado Front Range, as a way of easing that area’s water needs, won’t do the job, according to one leading Colorado water watcher.

The Colorado River Water Conservation District’s Eric Kuhn said at a meeting at Rock Springs – near Flaming Gorge – that the pipeline proposal won’t work, partly because there’s too much other demand on the limited supply in the area.

The pipeline has been proposed by a businessman at For Collins.

An effort to simplify and in some ways streamline parts of the New Mexico water rights application process was thrown out on October 28 by the New Mexico Court of Appeals.

The court said in its summary on Smith et al v. Clark et al:

We are presented in this case with a challenge to the validity of 19.25.13.27 {1} NMAC (12/30/2004) and 19.25.13.30 NMAC (12/30/2004) of the Active Water Resource Management Regulations promulgated by the State Engineer.

The dispute centers on aspects of the regulations that contemplate the administration of water rights through the determination and enforcement of priority. The district court overturned portions of the two regulations at issue because it found that they impermissibly expanded the scope of the State Engineer’s statutory authority and violated due process protections. We hold that 19.25.13.27 NMAC, the regulation addressing the State Engineer’s determination and enforcement of priority, in part exceeds the scope of authority delegated by the Legislature to the State Engineer and offends principles of separation of powers. To the extent the district court held that the application of the regulation must be limited to court adjudication decrees and licenses issued by the State Engineer, we agree. However, we disagree with the district court to the extent it held that application of the regulation may rest on subfile orders or offers of judgment. We do not address 19.25.13.30 NMAC. We therefore affirm in part and reverse in part.

The court concluded that “We thus reach the conclusion that, based upon the statutory language and the {26} historical authority of the State Engineer, the Legislature did not intend Section 72-2-9.1 to provide the State Engineer with the additional power of determining water right priorities as among water rights owners and to curtail water usage based upon such administrative determinations. … By enacting Section 72-2-9.1, the Legislature indicated its desire that priority administration not be left entirely to the State Engineer’s discretion under Section 72-2-8, and it required the State Engineer to take action to address priority administration. However, Section 72-2-9.1 did not expressly authorize the State Engineer to make such determinations beyond adjudication decrees and licenses necessary to carry out the AWRM regulations.”

No immediate response from the engineer’s office was forthcoming.

The decision could be appealed to the state supreme court.

The Washington state Supreme Court on October 28 upheld the constitutionality of Washington’s Municipal Water Law, removing uncertainty over water right certificates issued as far back as the 1950s.

In a 9-0 decision in Lummi Indian Nation v. State, et al , the Supreme Court found that the MWL does not violate the separation of powers clause of the U.S. or state constitutions or the right to due process. Several Indian tribes, environmental groups and citizens sued Washington state in 2006 contending that several sections of the MWL are unconstitutional.

Under state water law, the Washington Department of Ecology issues a certificate to use the water of the state when the water is appropriated and put to a beneficial use like a household water supply or irrigation. However, before 1998, municipalities, public utility districts and other water system providers were treated differently when the state issued water right certificates. The state issued water right permits and certificates to those providers based on needs such as accommodating future population growth, and having the “pumps and pipes” capacity to put the water to use.

The MWL was enacted by the Washington’s Legislature in 2003 to provide clarity on the nature of the pre-1998 water certificates and flexibility to municipal water suppliers in exercising their water rights. At the same time, the MWL requires those suppliers to engage in water conservation measures.

Under the law, utilities must use water efficiently. The state Department of Health includes water use efficiency requirements in its water system planning process. Utilities must demonstrate they have the water rights and the capacity to meet the needs of existing and future customers.

Not all of the opinions were positive. The Center on Environmental Law and Policy, which was on the losing side of the case, said:

Environmental plaintiffs expressed disappointment in the October 28 Washington Supreme Court decision upholding the 2003 law that purports to validate paper water rights held by public water suppliers around Washington State. The Supreme Court ruling rejects Plaintiffs’ argument that the law interferes with separation of powers between the Legislature and the Courts.

The Court’s ruling leaves the door open for case-by-case challenges to the harm caused by municipal water pumping on junior water users.

Paper water rights held by public water supplier represents water that is now flowing in rivers and aquifers. If public water purveyors are allowed to expand their rights, it will come at the expense of public values, including aquatic habitat, recreation, and water quality. Pumping will also harm junior water users.

“We have arrived at the end of the water frontier,” said Rachael Paschal Osborn, executive director of the Center for Environmental Law & Policy, one of several plaintiffs in the lawsuit. “When water purveyors pump their paper water rights, they will be taking from someone else. Regrettably, the Supreme Court has endorsed water chaos.”

The Court’s decision rejects a constitutional challenge, but acknowledges that municipal water users must demonstrate actual beneficial use of their water rights, and that parties harmed by expanded municipal pumping may bring individual cases to seek redress. The challenge to Washington State University’s “golf course” water rights is likely to be the first such lawsuit challenging specific application of the municipal water law.

Excerpts from the opinion:

“In 1998, this court held that under then-existing law, new private water rights did not fully vest until the water was put to a beneficial use, and not merely when the “pumps and pipes” capacity to use the water was built. Dep’t of Ecology v. Theodoratus, 135 Wn.2d 582, 586, 957 P.2d 1241 (1998). We cautioned then that we were not considering municipal water rights, which often receive separate treatment in water law. Id. at 594. In response to our opinion, the legislature amended the municipal water law, Second Engrossed Second Substitute H.B. 1338, 58th Leg., Reg. Sess. (Wash. 2003) (SESSHB 1338), to, among other things, explicitly define certain nongovernmental water suppliers as municipal and to make that definition retroactive. We are now asked whether these amendments violate separation of powers or facially violate due process. We conclude they do not. We reverse in part and affirm in part. …

“While the details have changed over the years, generally, our regulatory scheme has sought to balance vigorous beneficial use of the State’s waters without impairing existing uses. To that end, Washington has a multistep procedure before new water rights can be acquired. While the details will vary depending on whether the applicant seeks to appropriate surface or ground water, among other things, the would-be user first submits an application to the Department of Ecology. RCW 90.03.250; see also ch. 90.44 RCW (ground water). The department may give the applicant a temporary permit to use water while the application is being evaluated.

“Second, once the application is complete, the department directs the applicant to publish notice in a paper of general circulation. RCW 90.03.280. Meanwhile, the department determines “what water, if any, is available . . . and find[s] and determine[s] to what beneficial use or uses it can be applied.” RCW 90.03.290(1). Fourth, if the department is satisfied that water is available and the proposed use is a beneficial use, it issues a permit specifying the amounts of water that can be taken and the beneficial uses to which that water may be applied to. RCW 90.03.290(3). A water right permit represents only an inchoate right, which does not become choate until the water right is perfected. …

“We hold that these amendments do not violate separation of powers. While nothing in this opinion should be taken to forestall a proper “as applied” challenge, the challengers have not shown that the risk that some junior rights holders’ enjoyment of their rights will be impaired by operation of these amendments facially violates due process.”

The 21st Navajo Nation Council will convene for a work session on October 29 beginning at 10 a.m., to continue discussions surrounding the proposed water rights settlement of the Navajo Nation.

On September 29, a special session was held for the Council to consider Legislation 0422-10: “An Action Relating to Resources and Intergovernmental Relations: Approving the Proposed Northeastern Arizona Indian Water Rights Settlement Agreement to Resolve the Water Rights Claims of the Navajo Nation and Hopi Tribe for Water From the Little Colorado River System and From the Lower Basin of the Colorado River in Arizona in the Form of or Substantially Similar to the Form as Set Forth in Exhibit A.” The Council voted 49-32 to table the legislation.

A presentation was provided by Mr. Stanley Pollack, Navajo Department of Justice, Honorable George Arthur (Burnham, San Juan, Nenahnezad), and Ben Cowboy, Navajo Water Rights Commission at the special session. After considerable discussion, the Council concluded more public education be provided and input garnered from communities on the proposed settlement agreement.

As directed, public education forums took place across the Navajo Nation, with a special session scheduled for Nov. 4 to consider the water rights settlement.

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.

The Bureau of Reclamation has released for public review and comments the Draft Environmental Assessment and Finding of No Significant Impact for the temporary acquisition of water for the East Bear Creek Unit of the San Luis National Wildlife Refuge for wetlands management.

Reclamation will enter into a temporary water service contract with the Merced Irrigation District to provide a minimum of 500 acre-feet and up to a maximum of 2,000 acre-feet of water in November and December 2010 for wetland habitat management. The proposed action does not involve any construction activities and will not cause any land use changes.

The Draft EA and FONSI were prepared in accordance with the National Environmental Policy Act and are available online.

Lyons County officials in October were developing a legal structure to provide some protections for lands (and their owners) in areas where water rights have been removed to other places. The waters have in some cases been sent to Lake Walker to boost its levels.

The trigger has been the Walker River Basin Project, which has rearranged some water use in the Lyons County area. What’s being developed is a plan for mitigating the effects of those water shifts.

The Bureau of Reclamation has released for review the Draft Environmental Assessment and Finding of No Significant Impact for the proposed long-term groundwater banking of up to 10,500 acre-feet per year of the city of Tracy’s available Central Valley Project surface water supplies with Semitropic Water Storage District, and return of up to 3,500 acre-feet per year of the banked water to the city.

The proposed action would provide Tracy with more operational flexibility in use of its CVP water, through contract year 2035, by directly banking surplus supplies in the Semitropic Water Storage District. The banking would occur when the city’s CVP water supplies exceed demand.

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

Secretary of the Interior Ken Salazar led a groundbreaking ceremony on October 14 for the Delta–Mendota Canal/California Aqueduct Intertie project, which will improve water supply reliability for locations south of the Delta when completed as expected by 2012.

At the event in Tracy, California, he was joined by Senator Dianne Feinstein and a host of other federal, state and local leaders celebrating the start of construction of an underground link between the two Central Valley canals south of the Sacramento-San Joaquin River Delta.

“Linking of these two canals by a new underground pipeline and pumping plant will improve water supply reliability in a part of California hardest hit by dry conditions and loss of jobs,” the Secretary said. “Today’s groundbreaking is historic. It not only represents the efforts of all the partners gathered here to help alleviate California’s water crisis but also the timely action taken under President Obama’s American Recovery and Reinvestment Act to deliver water—and create jobs—while safeguarding the environment of the West.”

Interior spent $15.8 million of its ARRA funds for the completion of the Delta-Mendota Canal / California Aqueduct Intertie Project. CALFED funding for the Intertie is $8.8 million. The remaining funding has come from contributed funds and Reclamation’s Water and Related Resources funding. The total Intertie project cost is approximately $28 million. The Secretary said that statewide California received a total of more than $452 million in ARRA funding related to water.

Interior’s Bureau of Reclamation, the San Luis & Delta-Mendota Water Authority and the California Department of Water Resources are partnering to construct the Delta-Mendota Canal/California Aqueduct Intertie.

In addition to Secretary Salazar, other speakers at the groundbreaking for the Delta-Mendota Canal/California Aqueduct Intertie included U.S. Senator Dianne Feinstein and Congressmen Dennis Cardoza, Jim Costa, and Jerry McNerney Secretary for Natural Resources Lester Snow represented the state of California. Mike Stearns, Chairman of the Board of the San Luis and Delta-Mendota Water Authority, spoke on behalf of his agency. Numerous other dignitaries present also included Deputy Secretary of the Interior David J. Hayes; Bureau of Reclamation Commissioner Mike Connor, members of the state legislature, leaders of local governments and irrigation districts.

A construction contract for the Intertie project was awarded to Shimmick Construction Co. of Oakland, California, in July 2010. The project will provide about 160 much-needed construction jobs in an area hard hit by drought and job loss.

The Secretary noted that statewide California received even more than anticipated in stimulus funding related to water. The addition of the Intertie to the initial list of ARRA projects brought the total spent on drought relief and large and small water infrastructure projects to $288.6 million across the state. If that figure added to the $163.9 million from the ARRA spent on Title XVI water recycling projects and water conservation challenge grants, a total of $452.5 in stimulus funds went to California to help alleviate the water crisis while protecting the environment.

“We included the Delta-Mendota Project as a high priority action in the Interim Federal Action Plan for the Bay Delta and added Recovery Act funding for it because it is an excellent project that facilitates the smarter supply and use of Bay-Delta water,” the Secretary noted. Secretary Salazar said that the Intertie will potentially increase average annual deliveries to the Central Valley Project by as much as 35,000 acre-feet by addressing conveyance conditions in the Delta Mendota Canal that presently restrict use of the C. W. “Bill” Jones Pumping Plant near Tracy to less than its design capacity.

The Delta-Mendota Canal receives water pumped by the Jones plant and is the primary federal delivery facility sending water to Central Valley Project contractors south of the Delta. The State Water Project’s California Aqueduct operates in much the way. The connection between the two will improve overall water supply reliability.

The many other projects in the state for which Bureau of Reclamation stimulus funds have been or are being invested include the Red Bluff Diversion Dam to build a screened pumping plant to protect fish populations while delivering water to agricultural users; the Folsom Dam to address safety concerns and repair infrastructure; the Contra Costa Canal to protect water supplies for 500,000 Californians and build fish screens; the Trinity River to honor the Department of the Interior’s responsibility to Native American tribes; and the Battle Creek Salmon/Steelhead Restoration project, which will help restore fisheries that support thousands of jobs in northern California.

“These investments under the ARRA represent only part of what Interior is doing in relation to California water,” the Secretary concluded. “Our people in the Bureau of Reclamation, the Fish and Wildlife Service, the U.S. Geological Survey, and my office are working night and day on the Bay Delta Conservation Plan, on the new integrated science program that we and the Commerce Department are developing in response to the National Academy of Sciences Report, and on a host of other actions to improve and increase efficiencies in California’s water system, while also protecting the environment. We are in this for the long haul with our state partners and others—thanks to all of you.”

The non-binding ruling from Arbitrator Martha Pagel on October 7 found that Kansas did not act unreasonably in refusing to approve Colorado’s Compact Compliance Pipeline Proposal. However, the Arbitrator stated “The CCP Proposal, in general, provides a reasonable and necessary approach for meeting Colorado’s compact obligations.” Colorado State Engineer Dick Wolfe expressed optimism that approval for the Colorado Compliance Pipeline will eventually be received.

The Arbitrator found that, with certain clarifications and revisions as recommended in her ruling, the CCP Proposal “represents an appropriate and necessary augmentation plan that should be approved by the RRCA.” The majority of the Arbitrator’s decision focused on additional details that the Arbitrator felt should have been included to allow Kansas to approve the CCP Proposal. Colorado recognizes its obligations to be in compliance with the Republican River Compact. Therefore, it continues to negotiate with Kansas to ultimately seek approval of its CCP Proposal.

The Republican River begins on the eastern plains of Colorado, flowing into Nebraska and Kansas, where it then flows into the Kansas River. The waters are divided among the three states by the 1942 Republican River Compact. In 1998, Kansas filed a lawsuit against Nebraska and named Colorado as a party to the lawsuit. The States settled that lawsuit in 2002. One part of the 2002 settlement required the States to submit future disputes to a mandatory dispute resolution process, including non-binding arbitration. The current dispute arose from the lack of approval by Kansas and Nebraska to Colorado’s CCP Proposal on two previous attempts in 2009 before the Republican River Compact Administration. The RRCA is comprised of a representative from each of the three states including Dick Wolfe as Colorado’s Commissioner.