Ridenbaugh Press/Water Rights

With a deadline looming on January 3rd , Sierra Club volunteers and friends of Bumping Lake are today mailing 400 citizen comments opposing new dams in the Yakima River Basin to the U.S. Bureau of Reclamation (BuRec) and Washington Department of Ecology (Ecology).

“People don’t want new dams that cost taxpayers billions, drown ancient forests and endangered species habitat, and force families from lakeside cabins,” said David Ortman of Sierra Club’s Columbia River Future Projects. “People want agriculture’s water waste in the Yakima Basin to end – and they support water conservation. They also support passage for salmon at BuRec’s dams on the Yakima River. But new dams? No.”

The main points from the comments are:
People oppose new dams that will drown magnificent ancient forests and endangered species habitat at Bumping Lake within the Wenatchee National Forest (nearly 2000 acres), as well as shrub steppe habitat (the Wymer Dam).
Wasteful water practices by the agriculture industry in the Yakima must end, and people support water conservation.
Existing BuRec dams on the Yakima River were built without passage for salmon, and people support salmon passage at the BuRec’s dams.
The Teanaway River deserves protection from real estate developments, but NOT as mitigation area for destroying ancient forests and endangered species habitat.
This $5 billion proposal lacks a benefit-cost analysis and does not present a range of alternatives. People are requesting that the BuRec and Ecology withdraw the Draft Environmental Impact Statement for the Yakima Integrated Water Resource Management Plan.
A number of organizations, including the Alpine Lakes Protection Society, Endangered Species Coalition, Federation of Outdoor Clubs, Kittitas Audubon, North Cascades Conservation Council, Sierra Club, Western Lands Projeyct, and Western Watersheds Project will be submitting detailed comments on the proposed “Integrated Plan,” which includes billions of dollars for new Yakima River basin dams, including a new Bumping Lake Dam and a Wymer Dam on Lmuma Creek.

“The Bumping Lake Dam, would wipe out a spectacular and rare Ancient Forest of huge trees which is the habitat for spotted owls and bull trout,” noted Brock Evans, president of the Endangered Species Coalition based in Washington, D.C. “The Wymer Dam would wipe out a substantial amount of shrub-steppe habitat for sage grouse.”

The 45-day public comment period is for the proposed Yakima “Integrated Plan”. BuRec and Ecology denied written requests from national, state and local environmental groups to extend the public comment period beyond the holidays.

Opposition to a new round of fiscally irresponsible and environmentally dam-building by the Bureau of Ecology and Washington’s Department of Ecology continues to grow. “These dam proposals don’t make either fiscal or environmental sense,” said Ortman. “Is it any wonder the agencies are contorting the public process to make public scrutiny as difficult as possible. The public needs to weigh in.”

Comments on the PDEIS may still be sent to the Bureau of Reclamation by January 3rd at: yrbwep@usbr.gov

Two Rivers Water Company said on January 4 that it has filed two Colorado District Court, Water Division 2, Water Court applications in Pueblo, Colorado to irrigate farmland and for municipal, industrial, recreation, fire protection and other beneficial uses.

The first application would allow Two Rivers to use water leased from Pueblo Board of Water Works to be stored in its reservoirs and used to irrigate farmlands in Huerfano and Pueblo County.

The second application would allow Two Rivers to use water diverted from the Huerfano River for irrigation to be stored in the Orlando Reservoir and other places upstream. In addition, it would allow water to be used for municipal, domestic, industrial, agricultural, commercial, truck washing, stock watering, recreation, fish and wildlife, fire protection and other beneficial uses including augmentation, substitution and exchange. This application would permit Two Rivers to augment water supplies to the town of Gardner.

“The water court applications are another important step in the development of our business model, which is unique among publicly traded water companies,” stated John McKowen, Founder and Chief Executive Officer of Two Rivers.

“The exchange of water upstream to our reservoirs and ditch systems allow us to create jobs and economic growth in Huerfano and Pueblo counties at a more accelerated pace by putting water that otherwise would have to be released downstream to beneficial use first upstream for growing crops and augmenting municipal water supplies,” McKowen noted. “In particular, a water court application we filed for the Robert Rice ditch allows us to provide augmentation water to the town of Gardner, which could be in danger of losing its water supply,” he added.

McKowen noted that Two Rivers has a unique business model among publicly traded water companies in that it actively farms high-yield, irrigated farmland while also providing wholesale water for municipal, industrial and recreational use. Both farming and wholesale water are significantly demand driven in the current economic environment and provide excellent profit margins, McKowen said, adding that one business benefits from the worldwide increase in the demand for food and the other benefits from the worldwide increase in the demand for water. In the western United States the two businesses are inextricably intertwined, McKowen noted. Two Rivers provides balance rather than the often seen, very intense competition for water between the agricultural and municipal communities, he said.

McKowen also pointed out that the symbiotic relationship between food and water allows Two Rivers to cover its overhead and generate profits from farming while its water business develops and establishes supply relationships. As a result, Two Rivers can support the development of its water business from irrigated farming and, in future years, provide support to water-short communities without permanently drying up prime farm land. Societally, McKowen noted, the Two Rivers business model provides a more holistic and sustainable solution to competing rural and urban interests.

Gary Barber, Two Rivers’ Chief Operating Officer and the architect of Two Rivers’ water strategy stated, “This is the first step of many whereby Two Rivers provides real solutions to water-short water districts along the southern portion of the Front Range of Colorado without buying and drying some of Colorado’s most productive farmland. As Chairman of the Arkansas Basin Roundtable, I have seen the tension build between smaller water districts trying to provide water to their communities and those farming communities trying to sustain agriculture. Both need water.”

Barber noted, “Two Rivers’ water assets have a special character, most importantly 70,000 acre feet of storage which can be rehabilitated at 10% of the cost, and a small fraction of the time required to build new storage. We are ideally positioned to provide the ‘wet’ water solutions to both communities. It has been a problem we have been studying at the Roundtable for several years. “

The word was, for a number of years, that the water businessman T. Boone Pickens, through the Mesa Water company he headed, was buying in and around the Texas Panhandle were destined for the big cities, notably Dallas, further south in Texas that have long-range water supply issues.

It didn’t pan out that way. Last June, he signed an agreement with the northern Texas Canadian River Municipal Water Authority to sell the water to them. The deal involved 211,000 acres in Roberts, Hemphill Lipscomb and Ochiltree counties.

That deal was finalized in late December, after the water authority worked out a series of agreements with water users in the area to buy use of water it would be getting from Pickens. The largest single recipient is expected to be the city of Amarillo.

The Amarillo Globe-News said that “Increased municipal water rates will pay for the city’s purchase and about 40 percent of the water authority’s because Amarillo’s water use accounts for about that percentage of the group’s total, City Manager Jarrett Atkinson said previously.”

The Edwards Aquifer Authority Board of Directors approved a funding and management agreement on December 28 that details how the EAA, with participation from the City of New Braunfels, the City of San Marcos, the City of San Antonio through the San Antonio Water System, and Texas State University in San Marcos, will pay for implementing a habitat conservation plan aimed at protecting threatened and endangered species whose only known habitats are the aquifer-fed Comal and San Marcos springs.

The HCP, which was developed over the past four-and-a-half years by a stakeholder group known as the Edwards Aquifer Recovery Implementation Program (EARIP), was approved by the EAA board earlier this month.

Approval of the funding and management agreement clears the way for the EAA and the other co-applicants to file the HCP and supporting documents with the U.S. Fish and Wildlife Service (USFWS) along with an application for an incidental take permit under the Endangered Species Act. If the USFWS approves the HCP and issues an incidental take permit, it would bring resolution to the decades-old conflict between the federal mandate to protect threatened and endangered species associated with the Edwards Aquifer and the region’s dependence on the same aquifer as its primary water resource. Implementation of the approved HCP will help protect the region from litigation under the Endangered Species Act and will bring unprecedented certainty to Edwards groundwater rights for as long as the HCP is in effect.

The Department of Water Resources (DWR) will conduct this winter’s first snow survey on January 3.

One center of attention will be the manual survey scheduled for 11 a.m. off Highway 50 near Echo Summit. This and other manual and electronic surveys up and down the state will determine the amount of water in the early winter snowpack.

Statewide electronic readings indicate that today’s snowpack water content — near the end of an unusually dry December — is only 24 percent of normal for the date. At this time last year (December 27), the statewide snowpack water content was 202 percent of average.

Despite the low early readings, the snowpack and its water content can be expected to increase through the winter months to April 1, when melting snow begins flowing into streams and reservoirs.

“Thanks to good reservoir storage left over from last winter’s storms, we anticipate an adequate water supply next summer,” said DWR Director Mark Cowin. “Our initial estimate is that we’ll be able to deliver 60 percent of the slightly more than 4 million acre-feet of water requested from the State Water Project, and we hope to increase the percentage as winter storms develop.”

The initial delivery estimate for this calendar year was only 25 percent of the slightly more than 4 million acre-feet requested by the 29 public agencies that distribute State Water Project water to 25 million Californians and nearly a million acres of irrigated farmland. As winter took hold, a near-record snowpack and heavy rains sweeping the state resulted in deliveries of 80 percent of requests in 2011.

The final allocation was 50 percent in 2010, 40 percent in 2009, 35 percent in 2008, and 60 percent 2007. The last 100 percent allocation — difficult to achieve even in wet years because of Delta pumping restrictions to protect threatened and endangered fish — was in 2006.

DWR and cooperating agencies conduct manual snow surveys around the first of the month from January to May. The manual surveys supplement and check the accuracy of real-time electronic readings as the snowpack builds then melts in spring and summer. Most of the state’s major reservoirs are above normal storage for the date.

Lake Oroville in Butte County, the State Water Project’s principal storage reservoir, is at 115 percent of average for the date (72 percent of its 3.5 million acre-foot capacity). Lake Shasta north of Redding, the federal Central Valley Project’s (CVP) largest reservoir with a capacity of 4.5 million acre-feet, is 108 percent of average for the date (68 percent of capacity). San Luis Reservoir in Merced County, an important storage reservoir south of the Delta, is at 139 percent of average for the date (94 percent of capacity). San Luis, with a capacity of 2,027,840 acre-feet, is a critically important source of water for both the SWP and the CVP when pumping from the Delta is restricted or interrupted. (An acre-foot is 325,851 gallons, enough to cover one acre to a depth of one foot.) The mountain snowpack that melts into reservoirs, streams and aquifers provides approximately one-third of the water for California’s households, industries and farms.

The news media is invited to accompany DWR snow surveyors near Echo Summit on January 3. The location is Phillips Station at Highway 50 and Sierra at Tahoe Road approximately 90 miles east of Sacramento. Measurements will begin at 11 a.m. Reporters and photographers should bring snowshoes or cross-country skis and park their vehicles along Highway 50. Results should be available by 1 p.m.

The Sabine River Authority of Louisiana in January was continuing to work through the possibility of selling 600,000 acre feet of water per year from the river system to Toledo Bend Partners, which in turn would market it westward, to Texas customers. The deal would run for 99 years.

However, there are some questions, both locally and in the office of Louisiana Governor Bobby Jindal.

The Sabine authority currently has a hydropower generating agreement, which runs until 2018.

The Saline River empties into the Gulf of Mexico, and forms part of the boundary between Texas and Louisiana.

Comment deadline was set for January 6.

Jim Pratt, Executive Director of SRA Louisiana, told KTBS in Texarkana that “We feel like, based on the investigation that moving from the power supply component to the water supply: it would use less water out of the reservoir; it’s worth 25 times the amount of revenue and we can maintain more consistent higher elevations on the lake itself.”

A number of area residents are concerned about the sale, however. The Toledo Bend Citizens’ Advisory Committee was originally formed in opposition to a 2001 proposal to develop an inexpensive sewer system, but has developed opposition to the water sale. Spokesmen said they were concerned about what may happen to Louisiana’s water needs decades hence.

Jindal’s approval, as governor, would be needed to execute the agreement. And so far, Jindal has been reluctant to provide it, noting a number of procedural concerns with the deal. His chief of staff said of the agreement, “I don’t think they have worked through all the complex issues with those stakeholders. They need to do that.”

The Yavapai-Apache Nation on November 17 approved by resolution support for the Hopi Tribe in opposing the issuance of a Special Use Permit to the Arizona Snowbowl and artificial snowmaking on the San Francisco Peaks from reclaimed wastewater, recovered reclaimed water or groundwater.

Hopi Tribal Chairman Leroy Shingoitewa approached the Nation on October 27, seeking support in its complaint against the city of Flagstaff, for using more than its fair share of water, and the proposed sale of water to the Snowbowl for artificial snowmaking.

The Hopi tribe contends that the sale of water for snowmaking to benefit a select few violates the public interest in this region.

By joining the Hopi Tribe, the Nation has officially consented to providing a letter in support of the Hopi Tribe to be presented to the court.

The Nation has long since opposed the use of reclaimed wastewater at Snowbowl, most notably when it joined, the Navajo Nation, White Mountain Apache Nation, Sierra Club, Tucson’s Center for Biological Diversity, and the Flagstaff Activist Network against the Forest Service in a joint lawsuit against the U.S. Forest Service in 2005.

The Ninth Circuit Court of Appeals eventually ruled that Arizona Snowbowl would be permitted to manufacture artificial snow using reclaimed wastewater on the San Francisco Peaks, despite the Nation’s and other tribes pleas to protect against cultural, spiritual, and religious desecration.

“To the Yavapai-Apache Nation, the Peaks are referred to as Dzil-cho and A’Wiih Moonih. The holy mountain has significant spiritual and cultural values. It is the home of our Gaan, northern foundation of our world, place where our prayers are emanated to God, and because of its powers the medicinal herbs gathered there are more powerful,” Vincent Randall, Apache Culture Director has said.

“The Nation will continue to lend its support to the protection of the holy San Francisco Peaks,” says Fran Chavez, Public Relations Manager.

Most water distribution for water users in the island nation of Indonesia has for decades been handled by two companies, PAM Lyonnaise Jaya (Palyja), a subsidiary of Suez Environment (based in France), and Aetra Air Jakarta (owned by a Singapore consortium).

But complaints about water service and rates have been rising in Indonesia, and now the government there is looking at overhauling the country’s water supply and distribution.

The two companies, which service the eastern and western sections of the country, have entered into discussions and negotiations. But they look at the terms and conditions they might have to deal with in different ways. And talks between the two companies have evidently hit a wall.

Meanwhile, a number of activist groups in the country have said the contracts with the companies never should have been allowed in the first place. They note that Indonesia’s 1945 constitution says “water … shall be controlled by the state and used for the maximum prosperity of the people.”

In a key stockwater case in Washington, <em>Five Corners Family Farmers v. Washington, the Washington Supreme Court said that existing provisions don’t provide a specific limitation on water use for stockwater purposes.

The court said in its summary that “By statute, the legislature requires a permit to withdraw public groundwater or to construct a well to do so. RCW 90.44.050. The statute also provides exemptions from the permit requirement for certain uses. This case concerns the scope of one of those exemptions. We conclude that, under the plain language of the statute, withdrawals of groundwater for stock-watering purposes are not limited to any particular quantity by RCW 90.44.050. Accordingly, we affirm the superior court’s grant of summary judgment to the respondents. We also affirm the superior court’s refusal to grant summary judgment against the appellants on the basis of standing and its determination that Easterday Ranches Inc. is not entitled to attorney fees as a result of the change of venue.”

The background of the case was laid out:

“Easterday seeks to operate a large cattle feedlot in Franklin County. In order to provide water for the 30,000 head of cattle operation, Easterday drilled a well into the Grande Ronde aquifer. At the suggestion of the Department of Ecology, Easterday acquired water rights from a neighboring farm. This transfer, referred to as the Pepiot Transfer, gave Easterday the right to withdraw 316 acre feet of water per year, which is approximately 282,106 gallons per day. This water is used both for stock drinking water and other feedlot purposes; under the transfer up to 66 acre feet per year, or approximately 58,921 gallons per day, may be used of stock drinking water. The estimated stock drinking water required is between 450,000 and 600,000 gallons per day. Easterday contends, and the Department agreed, that Easterday’s withdrawal of the additional groundwater for stock-watering purposes is exempt from statutory permit requirements.

“Scott Collin, Five Corners Family Farmers, the Center for Environmental Law and Policy, and the Sierra Club filed a declaratory judgment action against the State of Washington, the Department, and Easterday in Thurston County Superior Court. Appellants sought a declaration that the stock-watering exemption from the permit requirement in RCW 90.44.050 is limited to uses of less than 5,000 gallons per day. Appellants further sought an injunction ordering Easterday to cease groundwater use without a permit. Thurston County Superior Court granted Easterday’s motion to change venue to Franklin County but denied Easterday’s request for attorney fees pursuant to RCW 4.12.090.

“Franklin County Superior Court allowed multiple agricultural organizations to intervene as defendants. The parties filed cross motions for summary judgment. The court concluded that genuine issues of material fact precluded Easterday’s motion for summary judgment on the basis of standing but granted the summary judgment motions of Easterday, the Department, and the intervenors with respect to the interpretation of RCW 90.44.050, which the court held unambiguously provides an exemption from the permit requirement for withdrawal of any amount of groundwater for stock-watering purposes. Appellants filed a notice of appeal, seeking direct review by this court. Easterday filed a notice of cross appeal, seeking review of Thurston County Superior Court’s refusal to grant Easterday attorney fees for the change of venue and Franklin County Superior Court’s failure to dismiss for lack of standing. We retained the case for decision.

A Utah and Wyoming water right holder failed in his attempt to get a clarification of his water rights, after courts determined that such efforts were premature without a clear challenge.

In its December 20 decision in Daniel Berman and Steve Bond v. John Yarbrough and Jerry Olds (water officials in Utah and Wyoming), the Utah Supreme Court held,

“In this appeal, Daniel Berman challenges the denial of his Motion to Enforce the Memorandum Decisions and Orders of the Court (the Motion to Enforce or the Motion). As part of his initial action, Mr. Berman asked the district court for a declaratory judgment quantifying his Utah water rights. Mr. Berman also sought an injunction ordering a Wyoming water official to deliver this water to his property in Wyoming. The district court issued the declaratory judgment, but expressly reserved ruling on any enforcement issues. The court made no ruling regarding enforcement of the Utah water rights and did not order the Wyoming water official to undertake any action. Sometime later, after a different Wyoming water official denied Mr. Berman’s request for the amount of water announced in the declaratory judgment, Mr. Berman filed the Motion to Enforce. In the Motion, Mr. Berman asked the court to order Wyoming water officials, including those who were not parties in the declaratory action, to deliver the amount of water quantified in the declaratory judgment. The court denied the Motion to Enforce and Mr. Berman filed an appeal.

“We conclude that a motion to enforce cannot be used to address matters beyond the scope of the underlying judgment it seeks to enforce. In this case, the declaratory judgment merely quantified Mr. Berman’s Utah water rights; it did not include any directive to the Wyoming water officials. Thus, there was nothing in the declaratory judgment to enforce against the Wyoming water officials. We therefore hold that Mr. Berman’s Motion to Enforce was procedurally barred.”