Ridenbaugh Press/Water Rights

A massive volume of water rights, the largest ever in the Australians island of Tasmania, is set for sale by the timber production firm Gunns.

The amount is about 28,000 megaliters, substantial amounts of it from natural streams. It will be put up for auction; the sale price has been estimated at $12 million to $15 million.

Irrigators in Tasmania indicated some general approval for the idea.

The Bureau of Reclamation on September 30 released the Supplemental Environmental Assessment and Finding of No Significant Impact to continue Interim Flows for the San Joaquin River Restoration Program for Water Year 2012. The document was prepared in accordance with requirements of the National Environmental Policy Act and describes the direct, indirect and cumulative environmental effects of the WY 2012 Interim Flows Project and the No-Action Alternative.

WY 2012 marks the third year of implementing the Interim Flows Project. The document extends the project originally described in the WY 2010 Final Environmental Assessment/Initial Study for an additional year. The Supplemental EA includes a review of the WY 2010 Final EA/IS, the Draft and Final Supplemental EA for WY 2011, synthesizes discussions and results where conditions have not changed and evaluates potential impacts due to implementation of WY 2012 Interim Flows in consideration of changed conditions or new information since approval of the WY 2010 Final EA/IS.

The continuation of this action will temporarily change Friant Dam operations from October 1, 2011, through September 30, 2012, to release Interim Flows as specified in the Stipulation of Settlement (Settlement) in NRDC, et al. v. Kirk Rodgers, et al. The Interim Flows would be conveyed down the San Joaquin River channel, and potentially down the Eastside and Mariposa Bypasses, to the Sacramento-San Joaquin River Delta (Delta).

WY 2012 Interim Flows would be recaptured by existing water diversion facilities along the San Joaquin River and/or in the Delta for agricultural, municipal and industrial or fish and wildlife uses, to the extent possible. Potential diversion locations for recapturing WY 2012 Interim Flow releases are Mendota Pool, Arroyo Canal, the Lone Tree Unit of the Merced National Wildlife Refuge (NWR), the East Bear Creek Unit of the San Luis NWR, Banta-Carbona Irrigation District facility, West Stanislaus Irrigation District facility downstream of the Stanislaus River confluence, Patterson Irrigation District facility between the Tuolumne and Merced River confluences and Central Valley Project and State Water Project Delta export facilities.

As described in the Settlement, the purpose of the Interim Flows is to collect relevant data concerning flows, temperatures, fish needs, seepage losses, recirculation and recapture and reuse. The SJRRP Implementing Agencies include Reclamation, U.S. Fish and Wildlife Service, National Marine Fisheries Service, California Department of Water Resources and California Department of Fish and Game. The agencies will conduct a variety of monitoring and study actions for the WY 2012 Interim Flow release period.

The Supplemental EA/FONSI is available for viewing Monday through Friday from 8 a.m. to 5 p.m. at Reclamation’s SJRRP Office, 2800 Cottage Way, Room W-1727, Sacramento, and at Reclamation’s South-Central California Area Office, 1243 N Street, Fresno. The document may be viewed on Reclamation’s website or on the SJRRP website.

The Bureau of Reclamation is seeking public comment on draft Reclamation Manual releases for water-related contracting activities. These draft releases provide definitions of key terms and revise existing definitions; restructure and clarify Reclamation’s water transfer and conversion policy; and consolidate and set-out basic pricing requirements for water-related contracts.

Specifically, the four draft releases available for review are:

Draft RM Policy Water-Related Contract and Repayment General Principles and Requirements (PEC P05). It revises an existing policy by providing a number of definitions for terms of general application for water-related contracting purposes. “Irrigation” and “Municipal and Industrial” are defined in this draft Policy to adjust and clarify the distinction between them. This ensures that municipal and otherwise non-agricultural uses that involve irrigation, such as golf courses, parks and lawns are properly categorized as M&I uses.

Draft RM D&S Water Rates and Pricing (PEC 05-01). This will replace existing PEC 05-01 and addresses cost-recovery and rate-setting requirements for water-related contracts.

Draft RM Policy Transfers and Conversions of Project Water (PEC 09). This supersedes and replaces existing RM Policy Voluntary Transfers of Project Water (WTR P02). In combination with the new definitions in PEC P05 it realigns the water use categories, defines the basic options and requirements for transfers and conversions, and preserves Reclamation’s support for beneficial transfers and conversions.

Draft RM D&S Conversions of Project Water from Irrigation Use to Municipal and Industrial Use (PEC 09-01) provides additional requirements for conversions of project water beyond the basic requirements provided in PEC P09. It addresses the contractual options and requirements for formalizing these conversions. It also covers the option of using the Sale of Water for Miscellaneous Purposes Act of 1920 for converting water from irrigation-only projects to Municipal and Industrial uses.

The Reclamation Manual is used to establish Reclamation requirements, assign program responsibility and establish and document Reclamation methods of doing business.

The Bureau of Reclamation has awarded a $5.5 million contract to Paleo West of Farmington, New Mexico for cultural resources work necessary to support construction of the Navajo-Gallup Water Supply Project.

“This contract will initiate one of the largest cultural resource management projects in New Mexico,” said Reclamation Commissioner Michael L. Connor. “As we move forward with project construction to provide Native American communities a long-term sustainable water supply, we must ensure maximum protection and preservation of the many historic and prehistoric sites in the project region.”

The two focus areas for the cultural resources work in New Mexico are along the San Juan River and within the Chaco Canyon resource area toward Navajo chapters along Highway 491. These areas have some of the highest prehistoric site densities anywhere in the country. Paleo West will perform a variety of work including completion of a cultural resources data investigation and comprehensive report; development and implementation of a research design for data recovery and mitigation for sites impacted by construction activities; development of a geographic information system database; cultural resource site marking and monitoring during construction; historical documentation and findings reports; and development of a public outreach program to disseminate information.

Not only will the cultural resources work to be done in support of the Navajo-Gallup Water Supply Project benefit overall progress on the project, it will provide invaluable knowledge about the origins of Navajo settlement within the San Juan River Basin and the role of Chaco Canyon in the early prehistory of the region.

The Navajo Gallup Water Supply Project was authorized for construction by Public Law 111-11 as a major component of the Navajo Nation San Juan River Basin Water Rights Settlement in New Mexico. Once completed, the NGWSP will provide a reliable municipal, industrial, and domestic water supply to Navajo Nation communities, the city of Gallup, NM, Window Rock and Fort Defiance in AZ, the Navajo Agricultural Products Industry, and a portion of the Jicarilla Apache Nation Reservation. These areas currently rely on a rapidly depleting groundwater supply that is of poor quality and inadequate to meet the current and future needs. The NGWSP will divert a total of 37,764 acre-feet of water annually from the San Juan River and the existing Cutter Reservoir, treat the water at two water treatment plants, and deliver water to the cities and chapters via 260 miles of pipeline and 24 pumping plants. The project is designed to provide for the water needs of approximately 250,000 people in these Native American communities by the year 2040.

When faced with some of the biggest legislative changes to the water rights space in more than 100 years, Goulburn-Murray Water (G-MW) turned to technology to navigate through turbulent waters.

The water entitlements sector in Australia, which is worth an estimated $25 billion, and $4 billion in Victoria alone has gone from strength to strength following the introduction of the National Water Initiative in 2004 and the Commonwealth Water Act in 2007.

Both the NWI and the Commonwealth Water Act aimed to provide a national blueprint for water reform including a long term strategy for how Australia manages, measures, plans for, values, prices and trades water for its highest economic use. In Victoria, the implementation of large scale water reform in 2007 under the Victorian Government’s blueprint for water reform “Our Water Our Future” rewrote the way water entitlements were managed, traded and accounted for across the State.

With more than 700 staff, G-MW provides water-related services across more than 68,000 square kilometres in the Murray Darling Basin region.

As one of Australia’s largest rural water entitlement managers, G-MW had several priorities in tackling these industry changes.

In response to these changes the organisation realised it needed to position itself to readily adapt to future legislative changes and drive improved efficiency within its business processes through enhanced business information systems.

To tackle these objectives, G-MW implemented TechnologyOne Financials and Property & Rating in July 2007.

G-MW business systems manager John Vise said, “When it came to navigating change, getting it right from the start was critical”.

“It was important for G-MW to choose a mature system that could handle future changes and migrations, so the organisation wouldn’t have to turn to consultants for advice and support.

“What we were looking for was a complete technological solution which would transform our business to meet specific legislative demands, streamline our customer management system and preserve a high standard of customer service.

“If we didn’t evolve with these changes we were simply going to be left behind and not be able to deliver quality information and service to our customers.

“Staff also needed easy access to all our corporate information to help us plan for the future of our business and produce multiple reports.”

To help deal with the ongoing complexities of water delivery rights and water entitlements, G-MW used the TechnologyOne Property & Rating system to help them establish a fully integrated and flexible revenue, regulatory and water management solution.

Energy Fuels Inc. announced on September 26 that it has reached a key settlement with two of the Objectors to the Company’s water rights’ application for the proposed Pinon Ridge Uranium and Vanadium Mill.

On Wednesday September 21, a settlement agreement was filed in State of Colorado District Court, Water Division 4, whereby Energy Fuels settled with Sheep Mountain Alliance and Living Rivers, two regional conservation groups who intervened in the water application as Objectors. In that settlement agreement SMA and LR agreed to withdraw their opposition to the Company’s water rights application in exchange for Energy Fuels implementing certain environmental and water supply protections. The Water Judge quickly approved the settlement agreement as an Order of the Court.

This settlement will lead to the Company obtaining a Final Decreed Conditional Water Right that will provide the water needed to construct and operate the Pinon Ridge Mill. A similar settlement with the Bureau of Land Management has already been approved by the Court. The only other remaining Objector, the Colorado Water Conservation Board, has given preliminary approval for a settlement pending the purchase of upstream water, which is readily available from the watershed.

“This water settlement is a major milestone for Energy Fuels and the Pinon Ridge Mill,” said Steve Antony, President and CEO of Energy Fuels. “In the Western United States water is scarce and highly significant for all projects. By settling with all of the Objectors, we will secure the water needed for the Mill and add flows to the Dolores River for enhanced wildlife and habitat protection.”

Mr. Antony continued, “We were confident of prevailing in Water Court, but we believe this settlement is in the best interests of Energy Fuels. Perhaps more importantly, it shows that Energy Fuels and Sheep Mountain Alliance can reach mutually acceptable agreements that protect the environment.”

Energy Fuels Inc. is a uranium and vanadium mineral development company. The Company received a Final Radioactive Materials License from the State of Colorado for the proposed Pinon Ridge Uranium and Vanadium Mill in March 2011. The Mill will be the first uranium mill constructed in the United States in over 30 years.

The Washington Department of Ecology has approved a significant new source of water for the Southwest Washington communities served by Clark Public Utilities.

Ecology signed a final “report of examination” this week for Clark Public Utilities to develop a new well field near the confluence of the East Fork and North Fork of the Lewis River south of Woodland. The annual supply equals 11,200 acre-feet – roughly equivalent to 3.65 billion gallons or the amount used by 33,000 homes in a year.

Ecology’s water rights decision is final pending any appeals, which must be filed within the next 30 days.

The new supply increases Clark Public Utilities’ ability to serve future growth in the central and northwest areas of Clark County.

Granting water rights today is often complicated by the complex interplay between aquifers and surface water, and the need to maintain levels of stream flow to assure healthy habitat and fish runs.

Clark Public Utilities’ planned well field is located in an area recommended by the Salmon-Washougal and Lewis Watershed Management Plan for future regional water supply development. Ecology uses the plan as the framework for making water use decisions in the watershed. Ecology agrees that siting this well field here is unlikely to impact protected stream flow levels.

“This decision demonstrates the role a locally developed watershed plan should have in laying out the priorities and other information Ecology needs when considering new water rights,” said Maia Bellon, Ecology’s manager for the water rights program.

Wayne Nelson, Clark Public Utilities General Manager commented, “We’re encouraged that with continued support from the state, we can ensure this new source is available to customers while furthering our commitment to being good stewards of the water resources here in Clark County.”

Snake River Basin Adjudication Judge Eric Wildman on September 23 issued what may be the first major order – “a logical and necessary step in the completion of the SRBA” – aimed at shutting down the SRBA.

That first step is “basin closing,” a final end to the taking of late claims in specific basins. Not all were included.

The action grows out of an order Wildman issued on January 13 (as Basin Wide Issue 16), setting a status conference to work out the form and content of a final decree – the closing action – in the SRBA, and what steps should be taken to get there. On July 15, he appointed a steering committee to consider that question, “charged with recommending a logical order and time frame in which these issues and sub-issue should be decided.”

Idaho state attorneys suggested that one of the first moves should include specific ends to making new claims in various basins. Wildman noted that “proposed schedule divided the SRBA basins into three groups based on the following criteria: (i) the amount of subcase activity within each basin, (ii) regional distribution of the closures to spread the workload out for [the Idaho Department of Water Resources], and (iii) SRBA basins that represented an entire drainage basin.” The idea won support from the steering committee, and Wildman generally adopted it.

The department identified three initial sub-groups for shutdown:
? The Owyhee, Reynolds Creek and Jarbidge/Bruneau drainages (51, 55, 57).
? The Clearwater River drainage (81 through 86).
? More scattered basins (23, 24, 25, 43, 61).

The judge said that he plans to issuer closure order for rest of the basins on or before November 30.

Wildman wrote, “In order to allow sufficient time for the development of the final unified decree, the Court believes that basin closure procedure, as outlined in the State’s comments, should be initiated now to allow sufficient time for development of the final unified decree.”

And he noted, “Completion of claims taking in individual basins is an essential first step to completion of the SRBA. Without it, completion of the SRBA will not occur.”

Wildman set a final-final deadline of November 30 for late claims in basins 23, 24, 25, 43, 51, 55, 57, 61, 81, 82, 83, 84, 85, and 86. All claimants in those areas, he said, have received “extensive first-round and second-round Notice of Filing Requirements in the SRBA.”

Most of the judge’s 64-page order was given over to a list of water rights (just those considered substantial, not de minimis) for which no claims have been made in the SRBA.

Wildman wrote, “Claimants should examine Exhibit 1 to determine whether the listed water right numbers are active water rights. The burden of determining whether to file a motion for late claim on any of the listed water right numbers rests solely with the water right holder.”

None of this apparently covers de minimis, domestic or stockwater claims. And he will consider on November 15 an end game for federal reserved water right claims as well.

None of this affects, either, litigation ongoing concerning water right claims – only the filing of brand new claims. That means plenty of litigation still awaits in the SRBA.

Michael M. Brescia, associate curator of ethnohistory with the Arizona State Museum at the University of Arizona, has been granted the Fulbright-Carlos Rico Award for North American Studies at the University of Western Ontario.

Starting this month, Brescia will spend a year researching for a project, “Water Rights and Competing Legal Traditions in North America; Historical Perspectives.”

As the Fulbright-Carlos Rico Visiting Research Chair for North American Studies at Western, Brescia will teach courses on the comparative history of North America. He also will conduct research for his project, which examines the historic tensions between common law and civil law in the adjudication of property rights, particularly water rights, in Canada and the U.S.

One of the Pacific Northwest’s foremost water policy experts has written a new book detailing water law and water rights in Oregon.

Tonkon Torp attorney Janet Neuman is the author of Oregon Water Law: A Comprehensive Treatise on the Law of Water and Water Rights in Oregon. The book provides an overview of the state’s water resources, a history of Oregon water rights law and a comprehensive discussion of the types of water rights in the state and how they are obtained, used, regulated and reallocated. It also discusses environmental issues, public rights to use bodies of water and court adjudications related to Oregon water use.

The book is designed as a reference for policy makers and a guide for lawyers practicing in such diverse areas as real estate, trusts and estates, tax, land use and environmental law. It is available through Portland State Bookstore’s Odin Ink website.

Neuman is a former professor and Associate Dean of Faculty at Lewis & Clark Law School. She also co-directed the Natural Resources Law Institute. She is past president of the Oregon Water Trust and a former member of the State Board of Forestry. Neuman served on the Western Water Policy Review Advisory Commission, appointed by President Clinton, which in 1998 released recommendations on the future role of the federal government in western water management. She currently serves on the board of The Freshwater Trust.

Neuman works with attorneys in Tonkon Torp’s Water Law Practice Group who handle water rights transactions, water project development, permitting and litigation of water rights disputes for both government entities and private sector clients.