Ridenbaugh Press/Water Rights

The Central Valley Flood Protection Board on January 27 began a five-month process of reviewing the draft Central Valley Flood Protection Plan, with adoption scheduled for June 2012. Officials of the Department of Water Resources made a detailed presentation of the sweeping plan to improve Central Valley flood safety at the Board’s morning meeting in Sacramento.

Jay S. Punia, Board Executive Officer, then briefly outlined steps in the review process, which welcomes input and comments by stakeholders and members of the public.

(A webcast of the meeting may be accessed through the Flood Board’s website at www.cvfpb.ca.gov. The plan and instructions for submitting comments may be accessed at www.water.ca.gov/cvfmp)

An important date is Friday, Feb. 24, the next regularly scheduled Flood Board meeting, when the public may make recommendations for key plan areas the Board should focus on in its review. On March 23, the Board agenda will include a review of the plan’s environmental documentation. During April, the public will have an opportunity to comment at two public meetings sponsored by the Board, and perhaps at a third. Dates will be announced shortly and will be posted to the Board website. Likely locations include Sacramento, Marysville and Stockton.

Regular Board meetings are scheduled for April 27, May 25 and June 22 with final Board adoption required by June. All the regular Board meetings during this five-month period are scheduled for the Resources Building at 1416 Ninth Street in downtown Sacramento.

In preparation for the Bureau of Reclamation’s initial Water Year 2012 water allocation announcement in mid-February, Reclamation is providing information on water supply conditions for the federal Central Valley Projectand comparisons of CVP reservoir storage for January 2012 with January 2011, 2010 and 2009 and the 15-year average. (Reclamation’s WY runs from October 1 to September 30.)

Water conditions over the past several years have fluctuated from “Dry” in WYs 2009 and 2010 to “Wet” in WY 2011. The California Department of Water Resources’ (DWR) first snow survey for 2011, held December 28, 2010, showed California’s mountain snowpack to be 198 percent of normal for that date. In contrast, DWR’s first Snow Survey for 2012, performed January 3, 2012, showed California’s mountain snowpack to be among the driest on record, with the snow-water content at 19 percent of normal for that date.

Despite recent rain and snowfall, hydrologic conditions are far below average for the season. As of December 31, 2011, DWR reported that the Northern Sierra 8-Station Precipitation Index Water Year total was 6.9 inches, which is about 39 percent of the seasonal average to date and 14 percent of an average water year (which is 50.0 inches). During December 2011, the total precipitation for the northern region was 0.3 inches, which is about 4 percent of the monthly average and the third driest December on record. Additionally, the San Joaquin 5-Station Precipitation Index Water Year total was 4.0 inches, which is about 31 percent of the seasonal average to date and 10 percent of an average water year (which is 40.8 inches). During December, the total precipitation for the southern region was 0.0 inches, which tied with 1989 as the driest December on record.

Although precipitation for WY 2012 has been marginal, the final snow-water content statewide for 2011 was a near-record 152 percent of the seasonal average. As a result, the CVP’s carryover storage into WY 2012 was the third-highest on record at 9.3 million acre-feet. Additionally, with two months remaining in California’s traditional “rain season,” Reclamation anticipates that precipitation totals will improve.

Reclamation balances the allocation of CVP water for agricultural, environmental, and municipal and industrial purposes. This task is driven by numerous factors including hydrology, conditions as reported by DWR, storage in CVP reservoirs, regulations, court decisions, biological opinions, environmental considerations, operational limitations, and input from other agencies and organizations. For WY 2012, Reclamation will focus on stretching water supplies, moving water where it is most needed, providing as much certainty as possible for growers and continuing to build and foster long-term water solutions in partnership with the state.

The Bureau of Reclamation has released for public review the Draft Environmental Assessment and Draft Finding of No Significant Impact for an interim renewal contract for up to 100 acre-feet/year of Central Valley Project Water for the community of Elk Creek. The proposed contract would ensure an adequate public water supply in water deficient years if the primary supply of water from the Orland Project is inadequate. The long term contract, currently under negotiation, will be covered by a separate Environmental Assessment.

The Draft Environmental Assessment and Draft Finding of No Significant Impact (EA/FONSI) were prepared in accordance with the National Environmental Policy Act, and are available at http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=8605.

Conditions have improved to the point where the Texas Commission on Environmental Quality notified Brazos River Basin junior water-right holders that their right to divert water is no longer suspended.

In the spring and summer of 2011 the TCEQ responded to a senior priority call in the Brazos River Basin by notifying junior water-right holders with a priority date of 1960 or later that their right to divert was suspended. The senior priority call has now been rescinded, and water right holders can divert water again.

The TCEQ continues to monitor the situation closely and strives to balance protection of senior and superior surface water rights while attempting to minimize the impact to junior water right holders, within TCEQ’s authority. Please note that should another priority call be made or should drought conditions persist or worsen, suspensions of junior water rights may again be necessary.

These actions are guided by the priority doctrine in Texas law. The most senior water rights are served first during times of drought with domestic and livestock uses superior to any appropriated rights. Water rights are suspended or curtailed by priority date, with the most recently issued—or “junior”—priority users suspended before senior water rights in the area.

Drought conditions continue to be widespread across the state.

Several pieces of water rights-related legislation are working their way through the Nevada legislature.

Assembly Bill 73, effective upon passage, puts into NRS 533 and 535, language that gives DWR the right to enter the land where water is being diverted or used or where any dam or obstruction is situated. It also makes it clear under 534.090 that only certificated rights can be forfeited.

Amendatory language of the bill simply declares that this has
been the practice since 1947 and is intended to clarify rather than change the existing statute to promote stability and consistency in the administration of 533 and 534.

New language clarifies the issue that a 4-year nonuse letter does NOT have to be sent to a permitteebefore forfeiting in those instances where the permitteefiled an extension of time to prevent a forfeiturebut then doesn’t put the water to
beneficial use or file another extension of time within the one year timeframe.

Domestic Well Credit Program language change that removes the requirement of having to hold a hearing on a domestic well credit program before implementing such a program. However the State Engineer must issue an order and anyone feeling aggrieved may appeal that decision.

Assembly Bill 114, effective July 1, changes the permit fee for changes of point of diversion and place of use only of an existing irrigation right to a flat fee of $750.

Assembly Bill 115, effective July 1, 2011, rewrites NRS 533.370 as a result of the Nevada Supreme Court’s decision in the Great Basin Water Network v. State Engineer appeal. It gives the State Engineer 2 years from the final date of
protest in which to act upon an application.

If the State Engineer doesn’t take action on the application, it remains active until approved or rejected.

If the State Engineer hasn’t approved, denied or held a hearing on an application within 7 years after the final date for filing a protest, he is required to republish the application at a time immediately preceding the time at which he is ready to act on the application. The cost of the republication must be paid by the applicant.

These new changes do not go into effect until July 1, 2011. The division and water right applicants need to be cognizant of the two sets of criteria.

Assembly Bill 419, effective July 1, provides a tool to deal with over appropriated basins. It says the state engineer may designate any basin where the groundwater withdrawals consistently exceed the perennial yield of the basin. It also says the state engineer shall designate a basin upon receipt of a petition by a majority of the water right holders in the basin (not domestic well owners).

After a basin has been designated a critical management area, a petition for the approval of a groundwater management plan for the basin may be submitted to the State Engineer by the majority of the water right holders in the basin that sets forth the necessary steps for removal of the critical management area designation.

If after 10 consecutive years of being designated a Critical Management Area and a groundwater management plan has not been approved for the basin, the State Engineer shall order that withdrawals, including domestic wells, be regulated
by priority.

Also, Assembly Bill 422, effective July 1, provides that a public body may lease a water right owned by the public body to an owner or holder of a water right who, as determined by the State Engineer, is over pumping.

Oklahoma City and the Oklahoma City Water Utilities Trust filed an answer on January 25 in U.S. District Court in Oklahoma City disputing the unprecedented claims to water in Southeast Oklahoma made by two Indian Tribes.

An answer is the most common way to respond to a lawsuit and is the defendant’s opportunity to respond to specific allegations brought against them in a complaint.

“The City’s answer will help protect the water sources on which many Oklahoma communities for decades have depended for tap water,” said Jim Couch, City Manager for Oklahoma City and a Trustee for the Water Utility.

The Choctaw and Chickasaw Tribes filed suit against the City of Oklahoma City and State of Oklahoma on August 18, 2011. The Tribes are claiming the rights to virtually all of the water in the Kiamichi, Clear Boggy and Muddy Boggy Basins in Southeast Oklahoma. The water supply for much of Oklahoma comes from this part of the state. The Tribes later amended their lawsuit to include a claim to the 100-mile long Atoka Pipeline that, for 50 years, has transported much of Oklahoma City’s water supply.

“The City’s answer in U.S. District Court rejects the Tribe’s claim that past treaties give them the right to all of this water. While the Tribes do have some rights, these treaties and agreements clearly do not convey the broad rights that they are claiming,” Couch said.

The City is also participating in the mediation process ordered by the court.

“The City is committed to continuing the mediation process while assuring through our answer filing in federal court that Oklahoma City and other legitimate water users will have a seat at the table in this case,” said Couch.

The original complaint filed by the Choctaw and Chickasaw Nations comes at a time when Oklahoma is in the midst of the worst drought since the days of the dust bowl. The City’s Water Utility has been working to both conserve and procure water, while the Tribes have decided this is the best time to take control over all the water in the Kiamichi, Clear Boggy and Muddy Boggy Basins.

The Bureau of Reclamation on January 23 released a Final Environmental Assessment and Finding of No Significant Impact (Final EA/FONSI) for Pelger Mutual Water Company (PMWC) & Sutter Mutual Water Company (SMWC) Groundwater Production Element Projects, a Sacramento Valley Integrated Regional Water Management Program Grant.
The Draft EA and FONSI were released for a 30-day public review on September 28, 2011; two comment letters were received on the document, and those comments have been addressed in the FONSI.

Reclamation proposes to provide the Grant funding for the installation of one new groundwater production well in the PMWC service area and one groundwater monitoring well in the SMWC service area. This project would improve the flexibility and reliability of PMWC’s and SMWC’s water supply, particularly during dry and critically dry water years.

The Final EA and FONSI were prepared in accordance with the National Environmental Policy Act and are available online at http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=8341. If you encounter problems accessing the documents, please call 916-978-5100 (TTY 916-978-5608) or e-mail mppublicaffairs@usbr.gov.

For additional information or to request a copy of the Final EA and/or FONSI, please contact Shelly Hatleberg at 916-978-5050 or e-mail shatleberg@usbr.gov.

The Susquehanna River Basin Commission will conduct a public hearing in February to accept public comments on water withdrawal and consumptive use project applications scheduled for action by SRBC at its next business meeting in mid-March. The hearing on the project applications is scheduled for February 16, Pennsylvania State Capitol, East Wing, Room 8E-B, Harrisburg, Pa., 2:30 p.m. to 5:00 p.m.

The list of project applications scheduled for comment and information on those applications are available on SRBC’s web site. The project applications scheduled for the February 16 hearing also include those that were approved at SRBC’s December 15, 2011 hearing in Wilkes-Barre, Pa.

“The Commission has decided to reconsider its December action on those project applications because the disruptive behavior of certain individuals prevented interested persons from offering testimony at the time,” said SRBC Executive Director Paul Swartz. “We are committed to preserving the due process rights of all citizens so they can provide constructive and meaningful comments on proposed projects.”

Persons planning to present oral testimony at the public hearing are asked to notify SRBC prior to the hearing of their intent to testify and to indicate the project application(s) they plan to comment on. The notices are to be directed to Richard Cairo, General Counsel, Susquehanna River Basin Commission, 1721 North Front Street, Harrisburg, PA, 17102, Phone: (717) 238-0423, ext 306, Fax: (717) 238-2436, E-Mail: rcairo@srbc.net.

SRBC will also accept written comments on the project applications until February 27. Comments may be submitted via the internet at www.srbc.net/pubinfo/publicparticipation.htm or mailed or faxed to Mr. Cairo.

“Conducting a public hearing on project applications one month before the Commission acts on the projects is a new procedure and represents an improvement over our past practice,” said Swartz. “This change will give the public ample opportunities for commenting and will give the commissioners more time to review and consider comments before voting on proposed projects.”

That change, which makes SRBC’s process more consistent with the processes followed by other regulatory agencies, is one of many procedural changes SRBC has put into practice to enhance the public participation process.

Blue Castle Holdings Inc. on January 20 received approval from the State of Utah to use existing water rights for the Blue Castle Nuclear Plant Project (BCP) in Green River.

BCH leased the water over 4 years ago from the Kane County and San Juan County Water Conservancy Districts for the expected 60 years of plant operations. After a strict review of the Districts’ applications for changing the points of diversion, places of use, nature of use, and storage of water, Utah’s State Water Engineer approved the 53,600 acre feet of water per year from the Green River for the proposed nuclear electricity generation project.

The approved water for the BCP was allocated previously for electric generation by Utah’s State Water Engineer for use in coal fired power plants that were not constructed. The proposed two-unit Blue Castle Nuclear Project would increase the electricity generated in Utah by approximately 50%, adding between 2,200 to 3,000 Megawatts of installed electrical capacity, using less than 1% of the State’s current water diversion.

Aaron Tilton, CEO of BCH, commented on the decision: “We realized early on that there would be a detailed and deliberate process adjudicated by the State of Utah before the water rights were approved for use at the project. We are pleased that the State Water Engineer, after a thorough review of all requirements under State law, determined that the water was available for withdrawal from the river, that its use at the proposed new nuclear power plant site would not interfere with other water users, that the proposed plan is physically and economically feasible and would not prove detrimental to the public welfare and the environment.”

The Office of the State Engineer received approval this
week from New Mexico Governor Susana Martinez, the State Personnel Office, and the Department of Finance and Administration, to hire needed technical staff in the agency’s Water Resource Allocation Program. Approved are six engineering positions in the Office of the State Engineer District IV-Las Cruces office and one engineering position in the District II-Roswell office. These are in addition to several positions currently being recruited for these offices.

It is anticipated that the State Personnel Office will be posting these job openings using the new NEO-GOV recruitment system.