Ridenbaugh Press/Water Rights

Manual and electronic readings in late January indicate that California’s
mountain snowpack is holding above average water content despite a dry January. Statewide, real-time sensors show that snowpack water content is 78 percent of the April 1 seasonal average. This compares to an average reading of 55 percent for today’s date.

The above-average readings are due to heavy storms in October, November and December. January so far has recorded only about 13 percent of average precipitation for the month.

“We are still optimistic for a good water supply, but realize that we can come up short any given year,” said DWR Director Mark Cowin. “Our unpredictable weather and delivery restrictions make it clear that conservation must always be one of our top priorities.”

DWR estimates it will be able to deliver 60 percent of requested State Water Project water this year. The estimate will be adjusted as hydrologic and regulatory conditions continue to develop.

In 2010, the SWP delivered 50 percent of a requested 4,172,126 acre-feet, up from a record-low initial projection of 5 percent due to lingering effects of the 2007-2009 drought. Deliveries were 60 percent of requests in 2007, 35 percent in 2008, and 40 percent in 2009.

The last 100 percent allocation – difficult to achieve even in wet years due to pumping restrictions to protect threatened and endangered fish – was in 2006.

The Bushmen of the Central Kalahari, located in the nation of Botswana, for uncounted years made central use of a water borehole in the central Kalihari. In 2002, the borehole and the area around was was designated as the Central Kalahari Game Reserve, and the bushmen were not allowed to use it any more. When the matter moved to lawsuit, a court upheld the action.

On January 27, however, a higher court in Botswana reversed that decision, and said that the Bushmen had water rights at the borehole.

Fiona Watson of the group Survival International remarked that “This is a wonderful ruling from the appeal court of five judges, which basically has found the Botswana government guilty of degrading treatment towards the Bushmen.”

The price of farmland in central Nebraska is going up, and that means the price of water in the area is rising as well.

That was the conclusion of the Central Platte Natural Resources District, whose governing board also okayed a recommendation to increase an existing rate of $2,500 to $3,500 per acre-foot credit to the river.

The district also heps operate a water bank, and prices there will reflect the changes. Credits for the water bank similarly will cost $3,500, plus the usual 10% add-on.

The Washington Department of Ecology has approved a new water right that will significantly increase the amount of water available for use by the city of White Salmon each year.

“This water paves the way for important growth in Klickitat County and bolsters the viability of existing businesses in White Salmon while also protecting streamflows at crucial times of the year,” said Ecology Director Ted Sturdevant. “This shows yet again that if we work at it, we can balance water supplies across the needs of the economy, local communities and fish – if we value all of these needs, rather than one at the expense of another.”

The deal hammered out with the city and Klickitat Public Utility District will support business expansion, and provide water for the city for the next 20 years.

“I want to congratulate all the parties for remaining committed to finding a creative path forward,” said Gov. Chris Gregoire. “These kinds of partnerships and win-win outcomes are what we need to protect jobs and create new economic ventures.”

The decision adds 780 acre feet to the city’s water-rights portfolio, giving the city access to a total of 1,468 acre feet of water each year. An acre-foot of water represents the amount of water that would cover one acre of land at one foot deep and equals 325,851 gallons.

“The construction of the city’s new slow sand filtration plant on Buck Creek recently approved by the Department of Health, and this new water right permit from Ecology, signal an end to the long-standing water problems we’ve faced over the last seven years,” said White Salmon Mayor David Poucher.

The new water right allows White Salmon to divert more water from Buck Creek, mitigated in part by water formerly used at the Goldendale Aluminum Plant on the Columbia River near the John Day Dam.

Klickitat PUD acquired the large water right and placed it into trust after the aluminum plant closed. Recently, the city entered into a water service agreement with the PUD that sets aside a portion of that water to offset any impacts to the Columbia River associated with the new withdrawal.

Additionally, Ecology worked closely with the city, PUD, state departments of Health and Fish and Wildlife, and the Yakama Nation to minimize the impacts of the city’s diversion to Buck Creek. The creek has important fish habitat value.

An important step in the process was the city’s proposal to divert less water from August 1 through October 31 to support fish in Buck Creek in exchange for greater access at other times of the year under a new permit. The city will rely on its wells during this crucial period. In addition, water discharged to the Columbia River at the wastewater treatment plant will be measured to ensure mitigation provisions are met under the water right.

This new permit, along with aggressive conservation work and better measurement of city diversions, will help the city respond to existing customer needs and new growth.

The southern Idaho Surface Water Coalition and other parties had it out in SRBA Court on January 18 with the Aberdeen-Springfield Canal Company and the state of Idaho over whether the company has the right to use much of the Snake River water it long has used.

It also raises some significant questions about the meaning and application of the state’s accomplished transfer statute.

The coming decision, in a series of subcases brought to Judge Eric Wildman after a finding by Special Master Terry Dolan, could have impact on a number of cases around the basin.

Aberdeen-Springfield has long-established water rights for its customers, a point not in dispute. Decreed through the Rexburg Decree and then the Eagle Decree in 1969, the organization has had water rights to delivery generally for agricultural and domestic uses.
Their position was complicated, however, by one ongoing condition and by a recent series of settlements and claims.

The Surface Water Coalition, represented in court by attorney Travis Thompson, said that much of Aberdeen-Springfield’s water – he estimated 70% – is “lost,” drained through the canal system, so that only a minority of the flow goes to beneficial use specified in the decrees.
That “lost” water also amounted, in part at least, to a recharge of the declining Snake River Plain aquifer. In 2002 the state of Idaho made moves toward encouraging recharge of the aquifer. In 2007, Aberdeen-Springfield filed an amended claim which mentioned only irrigation and – Thompson said – not specifically any recharge. But some debate has persisted about the relationship between the state and the canal company over the recharge and lost flow.

“We have conflicting testimony in the record,” he said, and he indicated that significant gaps in evidence remain.

If Aberdeen-Springfield is allowed to keep its existing diversions, he suggested, that amounts to an accomplished transfer, an expansion of use. When an objection is filed alleging such an expansion, he said, the case must go back for evaluation to the Idaho Department of Water Resources. “I still think the statute is mandatory,” Thompson said. “I don’[t think you can waive it.”

Instead, Dolan delivered an opinion which in part upheld the district’s (and state’s) contentions.

Wildman said that common practice in the SRBA has often involved simple decisions by the master in the subcase, or the judge – that it has stayed in the court system. He asked at what point an objector has to ask for remand to the department.

Attorney Kent Fletcher, for the Minidoka Irrigation District, said that the parties generally have wanted to move cases forward as best they can, so none have been inclined to want to return cases to the IDWR.

Randall Budge, attorney for Aberdeen-Springfield, said some studies have shown the amount of lost or recharged water is less than the 70% cited in some places.

He argued that the core of the case was that the Surface Water Coalition was in effect trying to ensure that some users, such as Aberdeen-Springfield, are left with relatively junior rights, less senior than those they have been assumed to have, and to push for more groundwater mitigation.

Officials of Wales, a town east of Buffalo, said on January 26 that they will try to develop local legislation to block hydrofracking in industrial natural gas drilling efforts.

The officials said their water rights could be impinged if the mining harms the quality of the water they receive.

Fracking, which has been under attack in much of the oil shale country of the Northeast, has been defined as “a process that results in the creation of fractures in rocks. The most important industrial use is in stimulating oil and gas wells, where hydraulic fracturing has been used for over 60 years in more than one million wells.”

The Utah legislature is expected to get another look at a revised draft of Senate Bill 20, a measure concerning water rights in critical water management areas – with changes that could turn around some of its key impacts.

Its formal description says it “allows a local district to hold certain water rights for recharge; addresses the requirements of a groundwater management plan; provides that artificially recharging a groundwater basin is a beneficial use of water in a critical management area.”

But a problem was detected in the area of over-appropriation. Stowell said that the bill as first drafted would allow property owners to petition over-appropriated rights; the change would transfer that to water right holders.

That’s something of a side issue to the bill’s main thrust. The St. George Spectrum reported, “The bill could be used as a tool for those areas that do not have water conservancy districts, Stowell said, because it allows for the formation of special local districts similar to decide what to do with those rights.”

The bill adds language to state law saying, “A local district created in accordance with Subsection (1)(a)(xiv) to develop and execute a groundwater management plan may hold or acquire a right to surface waters that are naturally tributary to the groundwater basin subject to the groundwater management plan if the surface waters are appropriated in accordance with Title 73, Water and Irrigation, and used in accordance with Title 73, Chapter 3b, Groundwater Recharge and Recovery Act.”

The bill formally was introduced in the Senate on January 24.

The Nevada State Engineer’s office on January 24 released a schedule and plan of development in reaching a decision on the hotly-contested water right applications by the Southern Nevada Water Authority in the Spring, Cave, Dry Lake, and Delamar Valleys.

In a descriptive statement from October, the office noted that “Please note that the above-referenced 1989 SNWA applications filed in Spring, Cave, Dry Lake and Delamar Valleys are the only 1989 SNWA applications that are being addressed at this time. Issues as to other applications in other basins can be raised at the time those applications are considered. It is not known when the applications in other basins will be re-noticed, but their consideration will be staggered over a number of years. As you may know, by letter dated August 26, 2010, the State Engineer indicated that the Snake Valley hearing has been postponed indefinitely.”

It also said that

it is the State Engineer’s position that the 1989 applications in Coyote Spring Valley, which are part of an ongoing study, and those in Garnet Valley, Hidden, Three Lakes, Tikapoo Valleys and California Wash, which have already been permitted and for which there were no appeals, are final decisions and are not subject to the Supreme Court’s decision. However, Applications 53947, 53949 (Tikapoo North), 53952 (Tikapoo South), 54061 (Three Lakes North), 54063, 54065, 54106 (Three Lakes South), which were not previously acted on, are protested and are still before the State Engineer for action, will be re-published and the protest period re-opened at some future date, as well as other 1989 SNWA applications that have not been acted on to date such as those in Snake Valley, Railroad Valley and Virgin River Valley. There are no 1989 SNWA applications in Indian Springs Valley.

1989 and 2010 Protests. An issue for which much criticism is being levied is that of the transfer of the 2010 protests to the 1989 applications once the 1989 applications are re-noticed. The criticism suggests that the State Engineer has the authority or discretion to accomplish this transfer. This office recognizes the duplication required in filing protests for the re-noticed applications when similar protests have recently been filed on the new applications; however, there is no statutory authority that allows a protest from one application to be applied to another application nor do the rules pertaining to the practice and procedure in hearings on protested applications grant the State Engineer that authority. Those rules are procedural, not substantive and the State Engineer’s authority is statutory not equitable. This interpretation has been confirmed by legal counsel. In light of the legal issues surrounding these applications, it is our goal that they not be remanded again over a decision that is not founded in any statute or regulation. Therefore, protests are required for both the 1989 and 2010 applications. However, if a person has already filed a protest to a 1989 application, they may file an amended protest during the new protest period without having to pay an additional protest fee. It has been noticed that many of the protests that were filed to the 2010 applications all assert the same protest grounds. Nothing prevents these Protestants from joining together to file one protest to the re-noticing of the 1989 filings; however, let it be clear that they will only be permitted to present one single case by a single representative of the group.

The protests to the 2010 applications are not invalid. They are valid as to the specific application against which they were filed, the 2010 applications, but they are not applicable to the 1989 applications. The 2010 applications remain on file as applications with priority dates junior to the 1989 applications and the protests to those applications remain on file. The 2010 applications are not as asserted merely duplicative; they are distinctively different with priorities junior in priority to other pending applications not held by the SNWA.

The schedule as released by the state engineer’s office:

February 2011 – Republication of applications anticipated during February 2011.

Late March 2011 – Protest period closing anticipated for late March 2011.

Late April 2011 – Final date for suggestions for holding hearing in orderly and expeditious manner and parties to provide information regarding number of witnesses they anticipate and an estimate of the time needed to put on their case by April 29, 2011. Possible pre-hearing conference around this same date.

July 1, 2011 – First evidentiary exchange is anticipated to be July 1, 2011.

August 26, 2011 – Second evidentiary exchange is anticipated to be August 26, 2011.

September, October and November 2011 – Administrative hearing to be held Monday through Friday, September 26-30, October 3-7, October 10-14, recess through October 28, and reconvene for hearing October 31 – November 4, Monday through Thursday November 7 through 10, and November 14-18, 2011.

Late January 2012 – Proposed draft rulings due to State Engineer.

March 2012 – State Engineer’s ruling.

The National Fish and Wildlife Foundation said in January that it has completed purchase of five water rights, for about $22 million, around the Mason Valley Wildlife Management Area.

Flow in the area was estimated at 28 cubic feet per second, along with ground water rights and supplemental ground water rights.

The area is located along the Walker River near Yerington, and includes “Extensive wetlands, and marshes along the Walker River provide habitat for nesting and migrating waterfowl. Ponds within the wildlife management area offer fishing for bass, crappie and bluegill. Hunting for waterfowl, turkey, deer.”

A variety of rehabilitation and wildlife assistance projects have been underway in the area for some time. Duck Unlimited has reported this water-related effort:

“At Mason Valley WMA, Ducks Unlimited is collaborating with the Nevada Department of Wildlife on a series of beneficial habitat enhancement efforts, along with water conservation and re-use projects. Included are a several pipeline construction, well rehabilitation and seasonal wetland restoration and enhancement projects. The pipeline projects recirculate water from the lower reaches of the WMA to the upper end of the site, where the water is released into managed wetland units. The water itself is either re-used water obtained from the Sierra Pacific Power Company cooling ponds (located adjacent to Mason Valley) or tail water received from the Mason Valley Fish Hatchery. Once the recirculated water moves through the managed wetland units and reaches the lower end of the WMA, it is piped to the Walker River, where it is released. In total, approximately 30,000 feet of pipeline are being installed to support the beneficial water reuse project. Well rehabilitation projects are restoring the performance of three groundwater wells that supply water to the WMA.”

The Department of Water Resources on January 21 increased its
projected 2011 deliveries of State Water Project water to 60 percent of contractors’ requests, up 10 percent from the December forecast.
In 2010, the State Water Project delivered 50 percent of a requested 4,172,126 acre-feet, up from a record-low initial projection of 5 percent due to lingering effects of the 2007-2009 drought.

“Today’s allocation increase reflects robust early winter precipitation and an impressive Sierra snowpack,” said DWR Director Mark Cowin. “But prudent water planning dictates caution as we monitor the rest of California’s rainy season.”

Despite mostly dry conditions this month, precipitation so far this winter is over 66 percent of average for the entire water year (October 1-September 30). December precipitation was 195 percent of average. And near-record snowfall in the Sierra and other mountain ranges assures above-drought runoff into reservoirs and streams this spring and early summer.

Statewide, snowpack water content is more than 150 percent of average for the date and 79 percent of the average, April 1 seasonal total. In addition, most major reservoirs are above normal storage levels.Lake Oroville in Butte County, the State Water Project’s principal reservoir, is at 101 percent of normal storage for the date after gaining 550,000 acre-feet in December.

It currently is holding 2.34 million acre-feet. Remaining winter weather will determine whether if fills to its 3.5 million acre-foot capacity. Lake Shasta north of Redding, the federal Central Valley Project’s largest reservoir with a capacity of 4.5 million acrefeet, is at 113 percent of normal storage for the date (75 percent of capacity).