Ridenbaugh Press/Water Rights

The Kansas Legislature has passed and sent to the governor a bill changing the standards of abandonment in the case of groundwater rights.

House Bill 2451 was introduced by Representative Kyle Hoffman on January 12, and by February 16 had passed the Senate. It was delivered to the governor at the end of the month.

A supplemental note said that “HB 2451 would amend a section of law dealing with the abandonment of water rights by deleting a requirement that groundwater rights in areas declared closed to further appropriation would no longer be required to have a means of diversion available “to put water to beneficial use within a reasonable time” in order to avoid the abandonment process. Groundwater rights in these areas would have due and sufficient cause for nonuse and therefore not be subject to abandonment.”

A background note added that “This bill was introduced at the request of a
spokesperson from the Kansas Department of Agriculture. At the hearing on the bill, proponents included the Chairman of the Kansas Water Authority who is also the Chairman of the Ogallala Aquifer Advisory Committee. He indicated the bill was an attempt to remove barriers to conserve water from the Ogallala Aquifer by allowing water right owners to maintain their water rights while not using them or having diversion works in place. A spokesperson from the Kansas Department of Agriculture indicated abandonment clauses are common in other states’ laws and they tend to foster development and use, rather than conservation. Other proponents included representatives of the Kansas Farm Bureau, the Kansas Cooperative Council, the Kansas Grain and Feed Association, the Kansas Agribusiness Retailer’s Association, the Kansas Groundwater Management Districts, and the Kansas Livestock Association. In addition, Representative Wetta reviewed written support of the legislation from a constituent, who is a former legislator. There were no opponents to the bill at the time of the hearing.”

Work toward completion of Basin 27 (the Blackfoot River basin), which has been one of the most problematic, took a substantial step ahead on February 29 when SRBA Judge Eric Wildman issued an order disallowing unclaimed water rights in that basin.

The state Department of Water Resources director’s report for the basin dates back to November 2005. About three years after that, the SRBA Court issued an order setting April 10, 2009 as a deadline for filing late claims in that basin.

Wildman noted that “The Order closing late claims takings was entered in response to a Motion to Set a Date Certain for Filing Late Notices of Claim in Basin 27 filed by the State. At the time the State’s motion was file, several hundred objections had been filed by the United States and the Shoshone-Bannock Tribes to various water rights located in Basin 27 involving the absence of an annual volume limitation. The Court’s Order closing late claims takings in Basin 27 was entered to facilitate the settlement of these objections by providing certainty to the number of claims filed in Basin 27.”

The state of Idaho last November 14 filed a notice of recommendations on unclaimed water rights in the basin; it asked that those rights be disallowed since no claim for them had been filed. (It didn’t include deferrable de minimis or stockwater uses.) A hearing on this was held on February 21.

Wildman said that no one appeared in opposition to disallowing the claims.

So, he wrote, “It is hereby ordered that all unclaimed water rights represented by the water right numbers listed on Attachment I hereto, except for any deferrable domestic and/or stockwater portion of such rights, are hereby decreed as disallowed.”

The Bureau of Reclamation and the state of Colorado are continuing negotiations on a proposed repayment contract for water from the Animas-La Plata Project. The contract will provide the terms and conditions by which the state will repay the construction costs associated with all or a portion of its statutory allocation of project water. The fifth negotiation meeting is scheduled for Wednesday, March 7, 2012, at 8:30 a.m. at 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 and identify the amount of project construction costs to be paid to the federal government by the state.

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 tri-state water war over the Lake Lanier/Apalachicola-Chattahoochee-Flint River System was goes on: Alabama and Florida have filed a request to appeal to the U.S. Supreme Court an adverse decision at the 11th Circuit Court of Appeals, a decision that itself reversed a decision adverse to Georgia by a Minnesota federal judge.

District Judge Paul Magnuson said that George had no specific right (for metropolitan Atlanta use at least) to water from Lake Lanier. The 11th Circuit thought otherwise, and now Alabama and Florida are seeking a second reversal in the case.

Florida Department of Environmental Protection spokeswoman Dee Ann Miller was quoted as saying, “Florida is concerned that [the] 11th Circuit Court of Appeals’ decision could deprive Florida of its fair share of water,” “DEP understands that the Apalachicola-Chattahoochee-Flint River System is important to Florida, Georgia and Alabama, and we believe all three states can share the waters and meet their states’ unique needs.”

The U.S. House moved closer in late February toward passage of the Sacramento-San Joaquin Valley Water Reliability Act (H.R. 1837), but the White House said that it would be vetoed if it reaches the president’s desk.

The measure, opposed by both California senators and a number of the state’s U.S. representatives, would pre-empt some state state law on waters in the Sacramento River and San Joaquin Valley. It has been called by opponents the “State Water Rights Repeal Act.”

The White House said the measure:

H.R. 1837 would undermine five years of collaboration between local, State, and Federal stakeholders to develop the Bay-Delta Conservation Plan. It would codify 20-year old, outdated science as the basis for managing California’s water resources, resulting in inequitable treatment of one group of water users over another. And, contrary to 100 years of reclamation law that exhibits congressional deference to State water law, the bill would preempt California water law.

The bill also would reject the long-standing principle that beneficiaries should pay both the cost of developing water supplies and of mitigating any resulting development impacts, and would exacerbate current water shortages by repealing water pricing reforms that provide incentives for contractors to conserve water supplies.

Finally, H.R. 1837 would repeal the San Joaquin River Settlement Agreement, which the Congress enacted to resolve 18 years of contentious litigation. Repeal of the settlement agreement would likely result in the resumption of costly litigation, creating an uncertain future for river restoration and water delivery operations for all water users on the San Joaquin River.

The Natural Resources Defense Council said in a blog post that “This bill would devastate California’s rivers, the Bay-Delta estuary, our fisheries and wildlife, and the jobs and communities that depend on their health. The legislation is opposed by the State of California, California’s two Senators, more than 10 members of the state’s House delegation, the leaders of both state legislative houses, and literally hundreds of commercial and recreational fishing associations, environmental groups, water districts, local governments, and farmers.”

The Utah Legislature is moving closer toward ratifying a settlement on Colorado River water rights for the Navajo Tribe, involving a specific water allocation to the tribe and a money payment as well.

However, the proposed 81,500 acre-feet from the Colorado River and tributaries is still less than half of the amount (166,000 acre-feet) the tribe might have claimed and gotten.

Bill sponsor Representative Christine Watkins, D-Price, said the use the money would be put to – infrastructure upgrades on the reservation – is badly needed.

The bill, House Bill 127, has been placed on the House floor calendar for a final vote.

Estevan López, New Mexico Interstate Stream Commission Director, on February 28 released an opinion article suggesting opportunity in an Arizona water settlement. From the opinion:

Every hundred years or so, a great opportunity comes along to improve our lives and those around us. Not just the lives of people, but also those of the threatened Southwestern willow flycatcher, the spikedace and the loach minnow. In contrast to the mundane opportunities we encounter daily, great opportunities include opposition and difficulty. They are fraught with risks to be sorted out by sound judgment, fairness, and an eye toward the future. Those willing to engage are forced to choose between what is possible and all that is not. If we get it right, today’s decisions protect us all for the next century. And getting it right, as far as the Interstate Stream Commission is concerned, starts with good science and fair treatment.

For New Mexico and the Gila Valley, that great opportunity is before us. The Arizona Water Settlement Act of 2004 will allot the Gila Valley almost 50 percent more water than it currently has, and up to $128 Million in federal funding to build projects to support sustainable water use and enhance water conservation efforts. The Act provides enough water to improve quality of life, contribute to the survival of endangered species, and help keep the Gila River wet.

ISC enlisted top state scientists and engineers with expertise in hydrology, ecology, watershed management, agriculture, municipal water systems, and conservation to form a panel to evaluate proposals. Proposals were submitted by area municipalities, counties, irrigation groups and conservation groups. Proposals were evaluated using a grading scale in a two-tiered process.

Tier-1 narrowed the proposal field from 45 to 21 in the fall of 2011. The Tier 2 evaluation was presented to the Commission at its February 29, 2012 meeting.

The grading scale was developed with input from stakeholders and designed to protect the integrity of the process. Points were awarded based on meeting criteria including water development/conservation, feasibility, and costs. The evaluation was unbiased and isolated from lobbying.

The panel relied upon the best available science, hydrology, engineering and cost estimates to understand each application.

The Commission’s decisions on February 29 mark a turning point in New Mexico’s realization of the benefits provided to it under the Act. In 2014, the ISC must notify the Secretary of the Interior what water use or conservation projects New Mexico intends to pursue.

As Aldo Leopold noted, “Conservation is the positive exercise of skill and insight, not the mere negative exercise of abstinence or caution.” This is good advice for New Mexico. If we make a poor choice, we will squander a once-in a-hundred-year chance. Our goal is to keep the Gila as peacefully spectacular as it is now–a healthy river, with abundant wildlife, a vigorous local economy, and residents who cherish it as their home. Science and evenhandedness can make this happen.

Department of Water Resources snow surveyors on February 28 confirmed that California’s mountain snowpack holds far less water than normal for this time of year.

Manual and electronic readings show that statewide, snowpack water content is only 30 percent of historic readings for the date. That is a mere 26 percent of the average April 1 measurement, when the snowpack is normally at its peak before it begins to melt with rising spring temperatures.

“The weather news so far this winter has not been good, “said DWR Director Mark Cowin.”We still have good reservoir storage due to last winter’s storms, but we would like to see more rain and snow this season.”

Due to persistent dry weather, DWR on February 22 dropped by 10 percent its estimate of the amount of water the State Water Project will deliver this calendar year. The delivery estimate — or allocation — was reduced from 60 percent to 50 percent of the slightly more than 4 million acre-feet of water requested by the 29 public agencies that supply more than 25 million Californians and nearly a million acres of irrigated farmland. An acre-foot is 325,851 gallons, enough to cover one acre to a depth of one foot.

The 50 percent allocation is not severely low, and could be increased if late season storms significantly improve hydrologic conditions.

One area visited by DWR snow surveyors today was off Highway 50 near Echo
Summit, approximately 90 miles east of Sacramento.

Reclamation announced on February 28 that it will issue a Lease of Power Privilege to the Delta-Montrose Electric Association and the Uncompahgre Valley Water Users Association to develop hydropower resources on the South Canal, a feature of Reclamation’s Uncompahgre Irrigation Project.

Reclamation will issue the LOPP based on the final environmental assessment and Finding of No Significant Impact for the proposal. These documents have been completed in compliance with the National Environmental Policy Act to address the effects of the construction and operation of hydropower facilities.

Federal policy encourages non-federal development of environmentally sustainable hydropower potential on federal water resource projects. The LOPP will ensure that the development of hydropower is consistent and compatible with existing operations and purposes of the Uncompahgre Project.

The final EA and FONSI are available on Reclamation’s web site.

The Bureau of Reclamation’s Great Plains Region has selected Coleman Smith, Jr. as Wyoming Area Manager in Mills, Wyoming. Smith replaces John Lawson who retired from Reclamation on December 31.

“Smith brings a depth of expertise in operations, management and technical advising,” said Great Plains Regional Director Mike Ryan. “His skill set, along with his track record of teamwork, coordination and communication skills will help the Wyoming Area continue to be a success in the future.”

Prior to accepting the Area Manager position, Smith served as the Deputy Manager, Power Operations and Maintenance, for the Pacific Northwest Region in Boise, Idaho. In that position, Smith coordinated work of the regional power office with other federal agencies, including the Bonneville Power Administration and the US Army Corp of Engineers.

Smith first came to Reclamation in 2007 serving as the Operations, Maintenance and Technical Services Manager for Reclamation facilities in southwest Idaho and eastern Oregon in the Snake River Area Office.

“I’m honored to be selected as the Wyoming Area Manager,” said Smith, who is tentatively scheduled to take over April 8. “I look forward to the opportunities and challenges Wyoming faces in managing and developing the water resources of tomorrow.”

The Wyoming Area Office is headquartered in Mills, Wyoming, with three field offices in Alcova, Torrington and Cody, Wyo. WYAO facilities include twelve hydroelectric power plants with a combined generation capacity of approximately 250 megawatts, and 20 reservoirs, with a collective storage capacity of more than 4.5 million acre-feet, on the North Platte, Wind, Bighorn, and Shoshone Rivers in Wyoming. The WYAO also provides remote operational control for Colorado’s Big Thompson Project and Montana’s Yellowtail and Canyon Ferry hydropower facilities.