Ridenbaugh Press/Water Rights

The U.S. House on November 30 joined the Senate in passing the Claims Settlement Act of 2010, part of which related to farm payments but another part seeking to settle four water right suits filed by Indian tribes.

In his statement on the measure, President Barack Obama said “This bill also provides funding for settlements reached in four separate water rights suits brought by Native American tribes, and it represents a significant step forward in addressing the water needs of Indian Country.”

Spokesmen for the Departments of Justice, Interior and Agriculture applauded the bipartisan House passage of the Claims Settlement Act. The Act, which recently passed the Senate, will provide long-awaited funding for the agreements reached in the Pigford II lawsuit, brought by African American farmers; the Cobell lawsuit, brought by Native Americans over the management of Indian trust accounts and resources; and four separate water rights suits made by Native American tribes. President Obama has said that he will sign the legislation into law.

“These are truly historic settlements that do not only resolve litigation, but also offer a new relationship between many deserving Americans and the federal agencies that play an important role in their lives,” said Attorney General Eric Holder. “Bringing this litigation to a close has been a priority for this Administration, and today’s vote in Congress is a significant, historic achievement. These cases provide fair deals for the plaintiffs and for the American taxpayers.”

“Congress’ approval of the Cobell settlement and the four Indian water rights settlements is nothing short of historic for Indian nations,” Secretary of the Interior Ken Salazar said. “The settlements honorably and responsibly address long-standing injustices and represent a major step forward in President Obama’s agenda to empower tribal governments, fulfill our trust responsibilities to tribal members and help tribal leaders build safer, stronger, healthier and more prosperous communities.”

“President Obama and I made a firm commitment not only to treat all farmers fairly and equally, but to right the wrongs in USDA’s past,” said Agriculture Secretary Tom Vilsack. “I applaud those who took this historic step to ensure black farmers who faced discrimination by their government finally receive justice. And I commend those who led this fight in the U.S. Congress and I am thankful for their unwavering determination. Today’s vote will help the Department of Agriculture move beyond this sad chapter in history. The bill that passed the Senate and House includes strong protections against waste, fraud, and abuse to ensure integrity of the claims process. In the months and years ahead, we will not stop working to move the Department into a new era as a model employer and premier service provider. We also must continue the good work we started to resolve all remaining administrative claims.”

Secretary Ken Salazar meets with the Colorado River governors/Department of Interior

Secretary of the Interior Ken Salazar and other senior Interior Department officials on November 30 met with representatives of the Colorado River Basin states of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming.

As a record drought goes into its eleventh year, Secretary Salazar called today’s meeting to discuss a number of ongoing water issues confronting the Department and the States, and to continue the collaboration that has historically occurred on such issues.

At today’s meeting, the state and departmental representatives renewed their commitment to a strong working partnership with open lines of communication in order to tackle the challenges ahead.

The Colorado River provides drinking water for more than 25 million people and water for agriculture, industry, and renewable hydroelectricity. It is also the lifeblood of the Grand Canyon and other national parks, wildlife refuges and ecosystem services. The period from 2000 to 2010 has been the driest 11-year period in more than 100 years of recorded history in the basin. Accordingly, the challenges associated with meeting the many demands placed on this limited resource are growing.

The Bureau of Reclamation’s Klamath Basin Area Office has released the Final Appraisal and Optimization Study for a proposed off-stream storage project to be located at Long Lake Valley.  Reclamation used study criteria which met objectives in the 2000 Klamath Basin Water Supply Enhancement Act to evaluate the possibility of constructing the project.

The study considered possible benefits to Klamath Project irrigators and fish species in the Klamath River.  Additionally, the fishery restoration benefits of the Klamath Basin Restoration Agreement were taken into consideration.  The study findings indicate that the return on investment of the project is extremely low and does not warrant additional study.  Estimates developed in 2009 indicate the cost of the project to be between $550 million and $2.3 billion.  The range in costs is due to various options in the study, which include different sizes and combinations of storage, pumping and power generation facilities and different levels of lining for the lake bottom to prevent water loss from seepage.  The study also considered the availability of water to pump into the facility.  Based on historical inflow data and assuming current legally-mandated requirements are met, water would only be available for storage in the facility in 1 out of every 7 to 10 years.

Concerns about use of water for mining have spread to some seemingly unlikely places.

Such as Carollton, Ohio, where a group of residents said they plan to meet on December 4 to discuss their issues with the use of water by a proposed (by the Rosebud Mining Company) mine in the area.

Rosebud, based at Cadiz, Ohio, describes itself: “Since 1979, Rosebud Mining Company has actively produced high quality bituminous coal from mines located in Western Pennsylvania and Ohio. The company now operates eighteen deep mines, six surface mines, and seven preparation plants in Armstrong, Beaver, Cambria, Clearfield, Elk, and Indiana counties in Pennsylvania along with Carroll, Columbiana, Jefferson, Stark, and Tuscarawas counties in Ohio. Currently, Rosebud Mining Company is the third largest underground coal producer in Pennsylvania, providing steam and metallurgical coals to domestic & international customers.”

Carroll County neighbors, organized as the Carroll Concerned Citizens, said the state Department of Natural Resources has not much responded to their concerns, and “without water protections afforded by the Ohio Constitution.”

The Snake River Basin Adjudication Court has formally reassigned to itself the review of administrative appeals from the Idaho Department of Water Resources.

This isn’t a startling new development. It was in essence ordered almost a year ago (on December 9, 2009) by the Idaho Supreme Court, and followed up on July 1 with an SRBA Court administrative order governing how the appeals would be handled.
The new notice, dated November 18, formally puts all this into place.
It says:

“The above-matter is hereby assigned to the presiding judge of the Snake River Basin Adjudication District Court of the Fifth Judicial District for disposition and further hearings. All further documents filed or otherwise submitted in this matter, and all further filing fees filed or otherwise submitted in this matter, shall be filed with the Snake River Basin Adjudication District Court of the Fifth Judicial District …”

The council of the city of Chubbuck, on the north side of Pocatello, on November 23 passed a resolution allowing city government to buy additional water rights.

The Pocatello Idaho State Journal reported that, “The resolution will allow the city to enter into a loan agreement or issue revenue bonds up to $2 million for the acquisition should the district court approve the petition.”

The request probably will make its way through the Snake River Basin Adjudication Court at Twin Falls.

The California Department of Water Resources has in November published a California Drought Contingency Plan, available online. The
90-page plan contains strategies and actions State agencies can take to prepare for, respond to, and recover from droughts.

The purpose of the plan is to minimize the effects of drought by improving agency coordination; enhancing monitoring and early warning capabilities; water shortage impact assessments; and preparedness, response, and recovery programs.

Its introduction says:

The purpose of the DCP is to minimize drought impacts by improving agency coordination; enhancing monitoring and early warning capabilities; water shortage impact assessments; and preparedness, response, and recovery programs. The DCP includes a coordinated State government strategy to prepare for, respond to, and recover from droughts and water shortages, and identifies an integrated regional approach to assessing droughts, drought action levels, and appropriate agency responses as drought severity changes. This plan may be reviewed and updated with each CWP Update or as necessary to provide current information, technology, and strategies.

To accomplish the above purpose, the Drought Contingency Plan:

1. Recommends a general framework for agency planning and coordination to facilitate drought response and management.
2. Identifies activities and strategies that may be implemented to minimize drought impacts on vulnerable regions and sectors. These activities include actions that may be implemented before, during, and is after a drought with respect to planning and coordination, monitoring, local assistance, and conservation programs.
3. Identifies the State, federal, tribal, and local agencies that have the lead or supporting roles in managing the drought response activities.
4. Promotes effective use of public, private, and tribal resources to manage response and mitigation efforts.

Although the current drought will eventually end, the restrictions on pumping from the Sacramento-San Joaquin Delta will continue to impact California’s water supply. California may continue to experience significant negative economic impacts, requiring emergency responses due to widespread and deep water shortages, even in a year of average or above-average precipitation and snowpack.

Los Angeles is adjusting the flow of the water it uses, according to a recent filing with the state of California.

The filing reads:

“Please be advised that City of Los Angeles, Department of Water and Power (LADWP) has filed a Petition for Temporary Urgency Change for water right Licenses 10191 and 10192 (Applications 8042 and 8043) requesting modification to required stream flows in Lee Vining Creek and Rush Creek and Mono Basin operations in Mono County. The proposed modifications will allow LADWP to implement streamflow and monitoring recommendations for the Mono Basin Stream and Restoration Program. To view project information, please visit the Division of Water Rights website at: http://www.waterboards.ca.gov/waterrights/water_issues/programs/applications/transfers_tu_notices/index.shtml.”

The Bureau of Reclamation has released for public review the Draft Environmental Assessment and Finding of No Significant Impact for a 2010 Water and Efficiency WaterSMART grant to Shafter-Wasco Irrigation District for construction of an intertie with North Kern Water Storage District in the San Joaquin Valley.

The grant would partially fund construction of the intertie linking a North Kern Water Storage District canal to a Shafter-Wasco Irrigation District pipeline, providing flexibility in moving water between the NKWSD and the SWID. The intertie would be about two miles northeast of the City of Shafter, California.

The Senate on November 19 approved legislation to settle the water rights claims of Taos Pueblo and the claims of the Pueblos of Nambe, Pojoaque, San Ildefonso and Tesuque – claims that have been in the courts for more than four decades. The bill also provides funding to implement the settlements, and includes $180 million to implement the Navajo settlement that Congress enacted last year.

The legislation – which must pass the House of Representatives before being sent to the president – resolves disputes over two of the longest-standing water rights cases in New Mexico. The Taos Pueblo Indian Water Rights Settlement Act, which settles the Abeyta case, approves an agreement signed in 2006 by officials from Taos Pueblo, the State of New Mexico and other interested water rights owners in the Taos area. The measure quantifies Taos Pueblo’s water rights and also protects the interests of local acequias, the Town of Taos, and other water users.

The Aamodt Litigation Settlement Act approves the 2006 agreement entered into between the Pueblos, the State, Santa Fe County, and non-Indian water rights owners in the Pojoaque Valley. The legislation resolves the water rights claims of the Pueblos in the Rio Pojoaque stream system and authorizes the construction of a regional water system in Santa Fe County that will benefit Pueblo and non-Pueblo residents.

In addition to codifying the Aamodt and Taos settlements, the bill includes $147.8 million to begin implementing them now and authorizes an additional $150.5 million to fully implement them in the years to come.

“With the strong backing of the Obama administration, we are able to finally bring these long-standing water claims to a positive conclusion. Under these settlements, thousands of New Mexicans will have the certainty about their water rights – a goal that is 40 years in the making,” Senator Jeff Bingaman said.

“Decades of work and negotiation have gone into the passage of this agreement to resolve the water rights claims of five tribes along New Mexico’s Rio Grande,” said Senator Tim Udall. “In an arid state like ours the importance of water rights cannot be overstated and this resolution is mutually beneficial to all water users in the Pojoaque and Taos valleys.”

The measure includes $66 million to purchase water rights and construct a number of projects to help improve water use efficiency, groundwater management, and water quality in the Taos Valley. The Pueblo will use its funding to assist with management of its water resources as specified in the settlement. The measure authorizes an additional $58 million in future spending, subject to the appropriations process to fully implement the settlement. The State of New Mexico is expected to contribute approximately $20 million to the effort.

Separately, the bill contains $81.8 million toward the implementation of the Aamodt settlement; it will be used to construct of a water system in the Pojaoque Valley that will serve Pueblo and non-Pueblo residents. An additional $92.5 million has been authorized for the project, also subject to the appropriations process. The State of New Mexico and County of Santa Fe will contribute approximately $117 million toward the cost of the water system and settlement implementation.

Finally, the bill sets aside $180 million to implement a third water settlement approved by Congress last year and construct the Navajo-Gallup pipeline.

“One of the most important aspects of this legislation is that it contains funding to implement the settlements of three of the longest-standing water rights cases in our state’s history. I applaud all of the parties who have worked so hard and for so long on these settlements,” Bingaman said.

“What also makes this passage so significant is that it puts in place the funding necessary to finally close the book on these agreements,” Udall continued. “It’s a major accomplishment that could not have been reached without the support of the President and the tribes, city, county, and community groups involved. I look forward to the House’s passage of this landmark legislation for these tribes.”

The legislation was included in a package of bills that also settled Native American water rights claims in Montana and Arizona and resolved the United States’ outstanding liability obligations to tribal members across the nation in the Cobell litigation and for farmers in the Pigford litigation.

On the Montana side,

In December 2009, the parties in the lawsuit agreed to settle the case, but federal lawmakers have yet to fund the settlement, which includes funding to resolve historical accounting and damage claims, establish a Trust Land Consolidation Fund and support Indian Scholarships.

Montana Blackfeet Tribal member Elouise Cobell, who first brought the suit against the federal government, thanked both senators for their effort in the fight.

“I want to thank Senators Baucus and Tester for leading the fight in the Senate to provide a long-overdue conclusion to this settlement. Too many Native Americans have died waiting for justice. My greatest optimism lies ahead hoping that today’s news gives way to permanent reform in the way the Departments of Interior and Treasury account for and manage Individual Indian Money accounts,” Cobell said.

“I want to thank Elouise Cobell for all her hard work and determination. This is an important step toward closing the chapter on a bitter legacy of broken promises. This settlement serves as a reminder that we have a trust obligation to American Indians and we’ve got to fight to hold the U.S. Government accountable,” said Baucus.

The legislation passed today also ratifies the Crow-Montana Water Rights Compact, which outlines the tribe’s authority over distributing, allocating and leasing water rights. It also provides funding for the development of water resources for irrigation, power, and other uses.

“Passing this water rights settlement is long overdue,” Tester said. “I’ve supported this settlement since it was in the Montana Legislature, and I’m pleased we finally crossed the finish line. A lot of folks worked together to get this through the Indian Affairs Committee and through the full Senate. It will lead to more opportunity and more reliable water resources for the Crow people.”

Tester negotiated with Wyoming’s senators for an entire year on details of the agreement. Baucus, the chairman of the powerful Senate Committee on Finance, made funding available to implement the settlement agreement, built a bi-partisan compromise around the package that passed today, and led the successful effort to push the bill through the Senate.