Ridenbaugh Press/Water Rights

Oral argument has been set for May 3 before the Ninth Circuit Court of Appeals regarding the legal challenge to the U.S. Bureau of Reclamation’s decision to withdraw more water from the Columbia River.

Known as the Lake Roosevelt Drawdown Project, the Bureau plans to withdraw water from the Columbia River, behind Grand Coulee Dam, and issue approximately 900 new water rights for irrigation, municipal and industrial use, and instream flow augmentation. The Columbia River is already over-allocated – and inadequate streamflows are harming aquatic habitat, water quality, and salmon migration.

The legal challenge to the Bureau’s decision to withdraw more water from the Columbia River is based on the National Environmental Policy Act, the statute that requires federal agencies to take a hard look at the environmental impacts of their actions. The Bureau of Reclamation failed to consider cumulative and indirect impacts associated with the new water diversions. For example, the Bureau is expanding a water pipe under I-90, called the Weber Siphon, that is 10 times the size of what is needed for the Lake Roosevelt Drawdown, but the Bureau failed to consider the foreseeable environmental impacts associated with future water diversions as a result of the significant increase in capacity.

The Columbia Basin Project is managed by the U.S. Bureau of Reclamation. The Project contains one of the world’s largest dams, Grand Coulee Dam, and is also the nation’s largest all-federal irrigation project. The Bureau’s efforts during the 1980s to expand the Project were found to be uneconomic and halted. The Bureau is once again trying to withdraw more water from the Columbia River to expand federal irrigation.

A wind power project sought by Black Hills Power in South Dakota appears to have little by way of obstacles – even, prospectively, some water rights.

The company said on April 28 “that it filed a request for a declaratory ruling from the South Dakota Public Utilities Commission. The request asks the commission to confirm that a proposed 20-megawatt wind farm near Belle Fourche, S.D., is reasonable and cost effective considering other renewable electricity alternatives and is an appropriate resource addition to meet the company’s resource or customer needs.”

The project also involves approvals from a string of other agencies, including the Fish & Wildlife Service and Department of Agriculture. One of those is the Department of Environment and Natural Resources, which issues permits on a number of types of projects that could have resource implications.

The Rapid City Journal reported on the DNR involvement, “The agency will also oversee a temporary amendment of the landowners’ water rights permits to allow well water to be used during construction. “The main criteria for us on the temporary permit is that it can’t interfere or adversely affect any other person’s rights for making that withdrawal,” said Eric Gronlund, engineering specialist with the DENR water rights program.”

Water – a declaration of the human right to water – is becoming one of the hot button topics in the upcoming national elections in Canada.

A statement from a collection of human rights groups included this:

The Assembly of First Nations, Amnesty International Canada and the Council of Canadians are calling on all political parties to recognize explicitly the human right to water and sanitation and to commit to ensuring that Canada meets its obligations in upholding these rights for people in Canada.

On July 28, 2010, the UN General Assembly overwhelmingly passed a resolution recognizing the right to clean and safe drinking water and sanitation. Canada and a small number of other countries abstained from the vote while the resolution was strongly supported by African, Asian and Latin American countries. On September 30, 2010, the UN Human Rights Council affirmed that the right to water and sanitation is already established in international law under legally-binding UN human rights covenants.

Maude Barlow, Council of Canadians chairperson and former Senior Advisor on Water to the 63rd President of the UN General Assembly, says, “The United Nations has already recognized water and sanitation as a human right, which means that every government must now come up with a plan of action based on the ‘obligation to respect, protect and fulfill’ these rights. I call on the next federal government to explicitly recognize these rights and for all political parties to outline what they will do to ensure that Canada meets its obligations.”

AFN National Chief Shawn A-in-chut Atleo stated, “We have made health and safety one of our priorities in this federal election with access to safe and potable water as a basic human right. Unfortunately, we still have over a hundred communities operating under boil-water advisories. First Nations have inherent rights to water in their traditional territories and these rights were never given up. First Nation leaders have called for Canada to respect the Aboriginal and Treaty right to clean drinking water and want to work in partnership with the next government on this priority, consistent with the principles of the UN Declaration on the Rights of Indigenous Peoples.”

A coalition of water users in the Lahontan Valley in northwest Nevada, along the Truckee Canal, have organized through the argument that their water and water rights are endangered.

The Friends of the Historic Truckee Canal said on their web site in April that “The Truckee Canal is the lifeblood that supports our economy and the water needed for everyone in Fernley. Studies have shown the canal supplies 75% of the ground water used by municipal and domestic wells. Whether you receive your water through the City of Fernley system or a private well, no matter where you live or how you receive water for your home or business, your water supply is in peril.
This has mandated that concerned citizens organize to protect and defend our right to a safe and continuous flow of water through the Truckee Canal.”

They also pointed out that “The Truckee Canal has been flowing at less than half of its regular flow since 2008. Since November of 2010 there has been no water in the canal.”

The immediate issue for the group is a motion to amend the Truckee River Agreement through approval of the Truckee River Operating Agreement. The group said that comments on the proposal are due at the court by May 4.

The Bureau of Reclamation’s April 2011, Total Water Supply Available forecast for the Yakima Basin indicates a full water supply for both senior and junior water rights, according to Chuck Garner, Yakima Project River Operations supervisor.

Garner said water managers are expecting a normal to above normal water supply at this time thanks to the improved snowpack during March.

“We managed to come out ahead even with the flood event that occurred on the last day of March which took some of the snowpack with it,” Garner said. “The reservoirs are well above average, and all the key indicators point to an excellent water year.”

At this time both junior and senior water rights holders are expected to receive their full water supply. The water supply forecast will be updated each month through July. Specific water delivery levels will not be determined until the storage begins to decline.

The April TWSA forecast is based on flows, precipitation, snowpack, and reservoir storage as of April 1 along with estimates of future precipitation and river flows. Other future weather conditions that determine the timing of the run-off and the demand for water are also critical in determining streamflows, distribution of water, and reservoir storage.

Garner said that the timing of the snowmelt and summer weather and irrigation demands are still important and can influence the carry over storage at the end of the season. He advises all water users in the Yakima basin to be wise about the amount of water they use.

A coalition of conservation, environmental, wildlife and fishery organizations have requested the U.S. Bureau of Reclamation to reissue and expand the scoping notice for an environmental impact statement for the Integrated Water Resource Management Plan, Yakima River Basin Water Enhancement Project Yakima.

Brock Evans, President of the national Endangered Species Coalition said, “The Bureau’s Scoping Notice failed to disclose that studying pumping water from the Columbia River to the Yakima Basin is part of the ‘package’.”

“The public needs additional time to comment on the multiple elements proposed,” said Evans. “These include flooding ancient forest, spotted owl, and bull trout habitat from a new Bumping Lake Dam; fish passage at existing reservoirs; water conservation; water marketing; and groundwater storage.”

Tom Brucker, representing the North Cascades Conservation Committee, pointed out, “The Bureau has only scheduled scoping meetings in Ellensburg (May 3) and Yakima (May 5) from 1:30-3:30 PM and 5-7 PM. We are requesting that the meetings be held until 9:00 PM and also held in Seattle and Spokane.”

The groups submitting the letter are: Endangered Species Coalition, Kittitas Audubon Society, North Cascades Conservation Council, Seattle Audubon Society, Lower Columbia Basin Audubon Society, Seattle Mountaineers, Sierra Club Washington State Chapter, Washington Wilderness Coalition, Western Lands Project, Wild Fish Conservancy, and the Western Watersheds Project.

The Bureau of Reclamation on April 25 increased the water supply allocation for South-of-Delta agricultural water service contractors from 75% to 80%.

Improved hydrology in the San Joaquin Valley and opportunities to exercise Central Valley Project operational flexibility influenced water supply conditions, allowing the allocation of 80 percent of the South-of-Delta users’ contract total of 1.965 million acre-feet. This represents an increase of 30 percentage points from the initial allocation made in February 2011 and 35 percentage points above their final allocation for last year. The allocation for all other CVP contractors remains at 100 percent of their contract totals as announced on April 8, 2011.

“The 2011 Water Year has developed into a significantly improved one for all water contractors that Reclamation serves through the CVP. Today’s increase to South-of-Delta contractors is a result of increased precipitation and runoff potential, good reservoir levels and effective operational measures,” said Reclamation Commissioner Michael Connor. “We are fortunate for the relief from the drought of the past 3 years and realize that we can return to a drier cycle at any time. For that reason, the Department of the Interior and Reclamation remain committed to finding a long-term solution to CVP water supply challenges. We see the Bay Delta Conservation Plan and its goals of achieving water supply reliability and a sustainable Bay-Delta ecosystem as the best chance at finding this balance.”

Given the improved precipitation, the CVP will likely enter the next water year with improved reservoir carryover storage, which is encouraging for the 2012 Water Year. Reclamation will continue to monitor precipitation, forecasted snow melt runoff, operations and water demands to determine if an additional increase in the allocation for South-of-Delta agricultural contractors is warranted. The current allocations and other background information are available.

The North Delta Water Agency said on April 25 that property owners have agreed to pay more to uphold an exceptional contract with the State that protects water quality and supply for lands within the Agency’s boundaries, an area spanning approximately 300,000 acres and portions of four counties in the north Delta. Official results will be announced at the May 4, 2011, NDWA Board meeting, at which time the Board will consider action to adopt the new assessment rates.

Ballot tabulation was completed by a third-party finance and accounting firm on Friday, with results showing that 64% of the weighted ballots returned by property owners were in favor of the benefit assessment. In total, 3,620 of the approximately 15,100 ballots were returned, representing approximately 62% of the total possible weighted vote.

Assessment revenues – which have not been increased since 1997 – are primarily used to pay for a contract with the State that assures NDWA landowners a dependable supply of suitable quality water for reasonable and beneficial use. Under the contract, the State is required to release enough stored water from the State Water Project into the northern Delta to make up for deficiencies in natural flow available to meet the needs of NDWA landowners, even during water shortages; and, ensure that the supply of water will be sufficient to hold back the intrusion of salt water, providing a minimum standard for water quality.

“Many property owners, especially those with large agricultural parcels, understand that the contract is an insurance policy for our water rights,” said Henry Kuechler, Chair of the North Delta Water Agency Board. “Given the increasing scrutiny on water rights and water allocations, we need the protections now more than ever before.”

The assessment is expected to raise approximately $1.25 million each year, if levied at the maximum rates. In addition to covering annual contract payments to the State, assessment revenues will be used to defend and enforce contract protections. The latter may become necessary in the face of proposed changes to water resources legislation, policies, and plans, such as the Bay Delta Conservation Plan and the Delta Stewardship Council’s Delta Plan.

In a case centering in recharge for irrigation, and a dispute over their role in an irrigation district subcase, SRBA Judge Eric Wildman on April 4 set up guidelines for remanding issues to the Idaho Department of Water Resources – and said, a special master finding to the contrary, that it was needed in this instance.

The issue concerns the Aberdeen-Springfield Canal Company and four of its subcases in the SRBA, two involving waster drawn from the Snake River and two involving groundwater. Al are supposed to be used for irrigation. The director’s 2006 reports for those subcases provided for those uses, but remarks were added with particular indication of place and amount of use, and a recommendation now that “accomplished change of purpose in use” had occurred in one case.

Objections were filed, and some editing occurred on the department’s side. Still, in April 2008, objections were filed from a number of parties, and the dispute went a special master. In June 2009, a special master’s order “(1) recharge for irrigation was recognized as a beneficial use of water before the enactment of the groundwater recharge statute in 1978, and (2) a portion of the ASCC’s diversion from the Snake River decreed ‘for irrigation and other purposes’ in water right 01-23B was lawfully changed to ‘recharge for irrigation’ with a priority date of February 6, 1895.” Continue Reading »

Pursuant to W.S. § 16-3-103 (a)(ii)(A), the Wyoming State Board of Control will hold a public hearing on proposed amendments to its rules which were drafted to streamline the Subdivision Development requirements and Authorization for Detachment of Water Rights for Change of Use or Place of Use and Petition for Voluntary Abandonment of Water Rights and to make non-substantive corrections to the November 2004 rules and forms.

For further information, contact Nancy D. McCann at (307) 777-5958. The hearing will be held at 1:30 p.m., May 11, 2011 at the Wyoming State Library, located at 2800 Central Avenue, Room 104 in Cheyenne, Wyoming 82001. Participation in the hearing will also be available via video conference.

The purpose of this hearing is for the State Engineer’s Office to gather oral comments from affected persons in the support of and opposition to adoption of the proposed rules. State Engineer’s Office personnel will not offer responses to comments or questions arising during the hearing.

Written comments on the proposed rules are still being accepted through May 1.