Ridenbaugh Press/Water Rights

Officials of Crow Tribe in Montana have set for March 19 a significant vote on whether to accept and ratify the Crow Tribe Water Rights Settlement Act of 2010 and the Crow Tribe-Montana Water Rights Compact.

Enrolled members of the tribe are eligible to vote.

The compact won agreement from President Barack Obama in December, and includes $460 million for water projects, as well as confirmation of a number of water rights.

A Nebraska irrigation district has called on the state water agency to declare that the Republican River is not just fully appropriated, but over-appropriated.

The state Department of Natural Resources said that it may not have the ability to change the Republican’s status, owing to 2004 legislation that governs the river fairly strictly.

But it did schedule a hearing on March 14 on Republican River Basin sustainability. (Part of the meeting concerned developing a definition for sustainability in the case of the Republican.)

Local concerns are running high. An Associated Press article noted that “The district is most concerned with portions of the river upstream of a diversion dam in Cambridge. A change from fully- to over-appropriated would put stricter limits on the amount of water that can be used in that part of the river basin. But the Natural Resources department contends it doesn’t have the authority to upgrade the basin’s appropriation status under revisions made in 2004 to a state water law. The irrigation district believes the department is incorrectly interpreting the law and wants the Nebraska Supreme Court to order the department to consider a change in appropriation status.”

That region of the Republican may be in the middle of some transition.

Natural Resources Deputy Director Jim Schneider wrote on January 12 to the Upper Republican Natural Resources District – at its request – to clarify that “the Department’s understandings and actions related to the potential retirement of approximately 3,300 groundwater irrigated arcres in the Rock Creek Subbasin by the URNMD. It is the Department’s understanding that once retired, the URNMD intends to pump to historical consumptive use from these previously groundwater irrigated acres directly into Rock Creek during Compact Call Years, thus retiming the groundwater discharge and increasing the total virgin water supply available to Nebraska.”

Montana’s senior U.S. Senator Max Baucus introduced legislation on February 23 to ratify the Blackfeet water rights compact and settle more than a century of conflict over waters in Montana. Ratifying the compact will bring clean water to reservation families, support tribal agriculture and support jobs through long-term economic development.

“Water is critical to the cultural, spiritual and economic well-being of all of us, and this bill finally establishes the Blackfeet Nation’s rights to the water that is critical the tribe’s way of life. This settlement will also support jobs and boost economic growth through water projects like irrigation and water storage that support tribal agriculture and businesses,” Baucus said. “This bill makes good on our century-old commitment to the Blackfeet people, and it’s time we get it done and continue fighting for good paying-jobs in Indian Country.”

The compact ratified by Baucus’ bill outlines the Blackfeet Nation’s authority over distributing, allocation and leasing water rights established more than 100 years ago. It also authorizes funding for the development of vital reservation water projects that create jobs, including drinking water projects, water storage projects, irrigation and stock development.

The compact is the product of more than 10 years of negotiations between diverse groups of water users in the area, which ended in 2007. It has already been approved by the Montana Legislature, which has also made a significant funding commitment to the settlement. Approval by the U.S. Senate will move the water settlement forward to the last and most significant step toward a finalizing the compact – a vote on the comprehensive settlement by the Blackfeet membership, required by the bill.

Senator Jon Tester is co-sponsoring the bill. Baucus and Tester originally introduced the Blackfeet settlement last year during the 111th Congress, and it was considered in a hearing by the Indian Affairs Committee but never approved by the full Senate. Baucus reintroduced the Blackfeet Water Rights Settlement Act last week in the 112th Congress and is working with his colleagues to move it through the Senate as quickly as possible.

In what was described by advocates as a major victory for Klamath Basin farmers and irrigators in Oregon and northern California, the United States Court of Appeals for the Federal Circuit has thrown out a ruling by the United States Court of Federal Claims denying Plaintiffs’ claims for $100 million in just compensation from the federal Government, and has remanded the case for further proceedings. The Federal Circuit’s decision emphasizes that on remand, the Government now “has the burden” of proving that delivering water to the Klamath Basin water users in 2001 was “impossible.” The Government also has the burden of demonstrating “with specificity” how the water districts’ repayment contracts redefined or altered the water users’ water rights.

“The Government’s decision not to deliver any water at all to the farmers in the Klamath Basin was devastating,” Nancie Marzulla, counsel for the Klamath water users, said. “We are extremely pleased that the Federal Circuit and Oregon Supreme Court have confirmed that these farmers have a property interest in water that they have put to beneficial use for over 100 years.”

The case, Klamath Irrigation District v. United States, No. 01-591 L, stems from a 2001 decision by the United States Bureau of Reclamation not to deliver any water to Klamath Basin farmers, solely for the purpose of protecting three species of fish under the Endangered Species Act. Plaintiffs filed suit in the U.S. Court of Federal Claims, alleging that the Government had taken their constitutionally protected property rights – in violation of the Fifth Amendment – or in the alternative, breached the water delivery contracts, by failing to deliver the water in 2001. In 2005, the U.S. Court of Federal Claims – relying on a 1905 Oregon statute – denied Plaintiffs’ claims, holding that there was no equitable property right in their use of Klamath Basin water for irrigation. In 2007, the Court disposed of the remaining breach of contract claims, concluding that the Government was shielded by sovereign immunity. The U.S. Court of Appeals for the Federal Circuit rejected the lower court’s rationale.

In a decision on hydropower rights at the Minidoka and Palisades reservoirs, SRBA Judge Eric Wildman reviewed the back history of decrees connected to those rights and their relationship to the SRBA, and their linkages to state control of water rights under the McCarran Amendment.

He upheld in the process a decision on the case by Special Master Terry Dolan, which has been contested by parties including the Surface Water Coalition (many of the major Magic Valley and eastern water users).
The Department of Water Resources director’s report which triggered the case came on December 19, 2006, when rights at Minidoka were recommended for the federal Bureau of Reclamation, with attached conditions which included subordination – the BOR couldn’t make a call for its hydropower rights there other than against other hydropower users which were more junior. It also required that traditional water uses be respected.

The recommendations drew objections from both many of the surface water users and, in some respects, from the Bureau of Reclamation itself. Supporters of the recommendation included the state of Idaho, Idaho Power Company and a group of ground water users.
This was followed up: “On April 11, 2008, the Director filed a Supplemental Director ‘s Report with respect to the above-captioned water right claims, wherein he set forth the basis for his recommendation that the decrees for those rights include the Subordination Remark. In that Report the Director states that the Subordination Remark was recommended because of the past historical practice of treating BOR’s power water rights as subordinate to junior upstream non-hydropower rights” and because the ‘system is operated with a preference for irrigation and other non-hydropower water rights.’”

Wildman said in his review of the case that the contracts related to the Palisades reservoir and the 1968 Eagle Decree, a court decision on water rights in the area, were critical. He noted:

“The development of the Palisades Dam and Reservoir project was originally authorized in 1941 and reauthorized in 1949. Pub. L. No. 864 (1950). However, the authorization and funding of Palisades Dam and Reservoir was contingent upon the securing of an adequate water supply for the reservoir:

The continuation of construction of Palisades Dam beyond December 31, 1951, or such later controlling date fixed by the Secretary as herein provided, is hereby made contingent on there being a finding by the Secretary by the controlling date that contracts have been entered into with various water users’ organizations of the Upper Snake River Valley in Idaho that in his opinion will provide for an average annual savings of one hundred and thirty-five thousand acre-feet of winter water.

“In an attempt to secure the additional water required, negotiations commenced between the USBOR and Upper Snake River Basin water users. Issues discussed included the historical practice in the area of diverting water into canals during the winter season for stock and domestic purposes as well as the practice of passing water though Minidoka Dam in the winter for power generation. Both practices resulted in the loss of water from the system which could otherwise be stored. An agreement was reached on these and other issues, and over a period of several years more than 50 formal contracts were entered into by the USBOR and various water users in the Upper Snake River Basin memorializing the agreement. These contracts are collectively referred to as the “Palisades Contracts.”

A number of water users, including the A&B Irrigation Districts among others, entered into the deal.
He said that “The Eagle Decree professed to adjudicate rights to the use of water from the Snake River and its tributaries above Milner Dam. However, the rights decreed were expressly made supplemental to prior decrees previously entered in the following cases,” listing several local cases involving the Twin Falls Canal Company and a number of others.

How does the Eagle decree fit into the reclamation rights picture? In general, Wildman said, it doesn’t: “One of the issues addressed on summary judgment was whether the terms of the Eagle Decree are binding on the USBOR and the State of Idaho. In particular, the SWC argue that summary judgment should have been precluded in this matter because the remarks proposed by the State and USBOR fail to reflect the “common plan” established in the Eagle Decree and unlawfully expand the subordination of the rights beyond that subordination recognized and confirmed by the Decree.

The Special Master held that the Eagle Decree was not binding on the State or the USBOR because neither entity was a party to the Eagle Decree Adjudication and because the Adjudication was not a general adjudication. On Challenge, the SWC argues the Eagle Decree is, in essence, a dejure and de facto general adjudication that is binding upon the USBOR and the State. For the reasons set forth below this Court disagrees.”

The Eagle decree was not a general adjudication, he said, and consequently didn’t fall within the terms of the federal McCarran Amendment, which is the law requiring federal agencies to be subject to state water regulation: “Since the adjudication proceeding resulting in the Eagle Decree did not include the rights of all claimants on the Snake River and all of its tributaries, it did not fall within the term of the McCarran Amendment.”

Wildman also said, however, that “Neither the Palisades Contracts nor the Eagle Decree preclude the USBOR from subordinating its water rights.”
Wildman concluded, “For the reasons set forth above, the SWC’s Challenge is hereby denied. Pursuant to I.R.C.P. 53(e)(2) and AOl section 1 3f, this Court has reviewed the Findings of Fact and Conclusions of Law contained in the Special Master’s Order Granting Motions for Summary Judgment and Special Master Report and Partial Recommendation and Order Denying Joint Motion to Alter or Amend and wholly adopts them as its own. When the above-captioned water rights are partially decreed, the “priority date” and “other provisions necessary” remarks proposed by the State and USBOR shall be included as recommended by Special Master Dolan.”

The case was certified for appeal to the Idaho Supreme Court.

The U.S. Supreme Court asked the U.S. solicitor’s office to weight in on the battle between Kansas and Nebraska over the Republican River. In February, it did:

“This brief is filed in response to the order of this Court inviting the Acting Solicitor General to express the views of the United States. In the view of the United States, Kansas’s motion for leave to file a petition should be granted. Nebraska should be invited to file a motion to dismiss to clarify what remedies are available to Kansas for Nebraska’s alleged violation of the Compact. Nebraska should also be provided an opportunity to file a motion to assert its own claims against Kansas.”

By way of background, the brief from Acting Solicitor General Neal Katyal said that “The State of Kansas seeks leave to file a petition for the enforcement of the Final Settlement Stipulation entered into by Kansas, Nebraska, and Colorado,
and approved by the Court in its Decree of May 19, 2003. See Pet. App. B1-B57. In 1998, Kansas filed a complaint to enforce its rights under the Republican River Compact, which was approved by Congress in the Act of May 26, 1943, ch. 104, 57 Stat. 86. The FSS incorporates procedures to calculate each State’s allocation, and establishes each State’s requirements for Compact compliance.”

Of the interstate compact, the said, “Specifically, the Compact quantifies the Basin’s “virgin water supply,” which is defined as “the water supply within the Basin undepleted by the activities of man.” The Compact prescribes the specific quantities of the virgin water supply, in acre-feet per year, that each State is allocated for “Beneficial Consumptive Use,” which is defined as “that use by which the water supply of the Basin is consumed through the activities of man * * * includ[ing] water consumed by evaporation from any reservoir, canal, ditch, or irrigated area.””

Currently, the brief said, “Kansas alleges that in 2005 and 2006, which was the first water-short accounting period, Nebraska overused its allocation by a total of approximately 79,000 acre-feet, in violation of the FSS and the Compact. Pet. 9-10; Br. 22-24. Kansas further asserts that—other than in 2007-2009, which were relatively wet years—Nebraska’s groundwater pumping has generally remained at or above the levels that led Kansas to file its complaint in 1998. Pet. 9; Br. 22-24. Nebraska does not dispute that it exceeded its allocation by an average of approximately 35,505 acrefeet per year in 2005 and 2006, but discounts the significance of doing so, on the ground that compliance was difficult given the drought conditions at the time.

“Kansas requested retrospective monetary damages in the form of disgorgement of Nebraska’s profits from its overuse. Resp. Br. 8. Kansas also sought prospective relief to ensure Nebraska’s future compliance, including the shutdown of wells within 2½ miles of the Republican River and its tributaries. Ibid. Nebraska rejected Kansas’s demands, stating that Nebraska had identified errors that prevented an accurate accounting of each State’s allocation by as much as 10,000 acre-feet per year, and that those errors should be corrected before the parties could determine the extent of the violation.”

An arbitrator concluded that “Nebraska’s proposals were “problematic” and would not be adopted,” but suggested more studies be conducted on some technical issues.

The solicitor said that “The Court should grant Kansas leave to file its petition. Kansas alleges an interstate dispute, involving an alleged violation of this Court’s decree, that is of sufficient importance to warrant this Court’s exercise of its original jurisdiction, and there is no other forum in which the controversy practicably can be resolved. The United States additionally suggests that this Court provide a mechanism for the parties to address certain threshold legal issues. Resolution of those issues, which could be placed before the Court in a motion to dismiss, would significantly narrow the scope of any proceedings before a Special Master. In addition, the Court should allow Nebraska to file a motion to assert its own claims against Kansas if it wishes to pursue these claims before this Court.”

Two small New Hampshire cities, Kingston and Newton, said in February that they have proposed warrant articles, legal devices that could led to formation of municipal water districts. The point: More control over groundwater, which residents are concerned is at risk of being withdrawn by water corporations.

At present, the towns have no management control over the groundwater.

The local Eagle-Tribune said on February 15 that “voters in the two towns were asked to consider the articles for placement on the ballot March 8. The articles were sent to the ballot in both towns, but not before some anxious residents spoke out. Some people are worried commercial bottling companies and developments will suck their towns dry of water. But others are worried a water district would mean they would have to pay for water.

The Wyoming Area Office of the Bureau of Reclamation in Mills, Wyo., will increase the release of water to the North Platte River in February 2011, according to John H. Lawson, Wyoming Area Manager. The early increase in releases will be initiated to provide space in the reservoirs for potential inflow from spring runoff.
The total storage for the North Platte Reservoir System as of January 31, 2011 is 2,212,700 acre-feet (af), which is 141% of the 30-year average of 1,564,800 af. The total conservation storage capacity is 2,787,800 af for the North Platte Reservoir System. The high storage is due largely to above average inflows over the past three years. The early releases to provide additional space for regulation of runoff this spring have been incorporated into our monthly operating plans which show that all ownerships fill.

Release of water from Glendo Reservoir will start at 500 cubic feet per second (cfs) on the morning of February 22 to raise the elevation of Guernsey Reservoir approximately four feet during the last week of February. On March 1 Glendo releases will be increased to 1,000 cfs and further increases will be made in early March in order to reach a release of 3,500 cfs by mid March. Release of water from Guernsey Reservoir will be initiated on the morning of February 28 with a flow of 500 cfs and will be increased during the week to 1,500 cfs on March 3. Starting on March 8 the releases will again be increased from Guernsey Reservoir until a release of 3,500 cfs is reached by mid March.

The present release of 500 cfs from Gray Reef Reservoir is expected to increase on February 23 to 750 cfs. Further increases in the release from Gray Reef Reservoir will be made starting February 28 in order to reach a release of 2,700 cfs by March 5. The planned releases will be adjusted, as necessary, based on river conditions.

March and April releases for the purpose of evacuating water in preparation for spring runoff have not been necessary since 1998. These releases will result in unusually high flows in the North Platte River in Eastern Wyoming and Western Nebraska for the months of March and April.

These releases will result in changing reservoir levels. The public should be aware of the changing flows in the North Platte River along with the changing reservoir levels and take proper precautions.

The city of Emporia, Kansas is looking to add water rights, saying that it is beginning to be boxed in by the limited amount of water available to it now.

The city would buy additional rights, though from exactly where – likely on the Neosho River – is not yet clear. The application went to the Kansas Division of Water Resources.

Consultant reports have indicated that more water will be needed by the city in the future. And city officials point out that when new businesses inquire about the city, they often ask about the availability of water.

Reclamation’s Western Colorado Area Office said on February 17 that it will start negotiations on a proposed repayment contract for the Animas-La Plata Project with the state of Colorado for all or a portion of the state’s statutory allocation of project water. The first negotiation meeting is scheduled for Friday, February 25, 2011, at 9:00 a.m. at the Bureau of Reclamation’s office, 835 E. 2nd Ave., Suite 300, Durango, Colo. 81301.

The contract to be negotiated will provide for storage and delivery of project water, identify the amount of project construction costs to be paid to the federal government by the state, and provide for operation and maintenance of the project.

All negotiations are open to the public as observers, and the public will have the opportunity to ask questions and offer comments pertaining to the contract during a thirty minute comment period following the negotiation session.

The proposed contract and other pertinent documents will be available at the negotiation meeting, or can be obtained on our website under Current Focus or by contacting Brett Griffin of the Bureau of Reclamation, 835 East Second Avenue, Suite 300, Durango, Colorado, 81301, telephone (970) 385-6531 or e-mail bgriffin@usbr.gov.