Archive for October, 2012

Oct 31 2012

NM: BuRec works on Middle Rio options

Work toward a new biological opinion, continued drought and the possibility of dealing with even leaner water years in the future brought water managers in the Middle Rio Grande together for some serious discussions in late October.

The two-day meeting was organized by the Bureau of Reclamation with a goal of bringing key decision makers together to identify, prioritize and create action items for the development of water management tools with potential of providing greater flexibility in meeting the needs of water users, fish and wildlife and remaining in compliance with the Rio Grande Compact and the Endangered Species Act.

“We recognize the collective efforts of the agencies in this room in working together to meet many of the requirements of the 2003 Biological Opinion on the Middle Rio Grande over the last decade, and the current efforts of the agencies working toward transition of the Middle Rio Grande Endangered Species Collaborative Program to a Recovery Implementation Program,” said Reclamation’s Albuquerque Area Manager Mike Hamman. “We have the right people in the room at this critical moment to help us to continue to effectively manage the limited water supply.”

As part of the preparation for the meeting, participants from Reclamation, New Mexico Interstate Stream Commission, Albuquerque Bernalillo County Water Utility Authority, Middle Rio Grande Conservancy District and U.S. Fish and Wildlife Service worked to compile a list of potential and beneficial water management tools. The feasibility of implementing these tools to benefit the Middle Rio Grande was the focus discussion throughout the two-day meeting. More than 30 tools were evaluated ranging from seeking authorization to change the way water is managed or stored at certain reservoirs, to developing a mutually agreed upon accounting system for depletions.

Water managers are preparing for what could be another difficult year with most reservoirs in New Mexico already low heading into another winter likely to be dry. October forecasts from the National Weather Service now show that the El Ni?o weather pattern that was expected to bring moisture to New Mexico over the coming months is weak and doesn’t appear to be strengthening.

The impacts of the drought are also evident in the latest Rio Grande silvery minnow population monitoring reports. In spite of the about 56,000 acre-feet of supplemental water released by Reclamation over the last year to help boost Rio Grande flows, September silvery minnow density data is comparable to that collected in 2003. Four of the 20 sites where fish are collected were dry in September and the silvery minnow was found in only three of the remaining 16 sites. In 2003, the silvery minnow was only collected at one of the 20 monitoring sites. With support from the Collaborative Program, the silvery minnow is being actively bred and raised at the city of Albuquerque’s Bio-Park, the New Mexico Interstate Stream Commission’s Los Lunas Silvery Minnow Refugium and the U.S. Fish and Wildlife Service’s Dexter National Fish Hatchery. Plans are in place to augment the population by stocking 297,000 silvery minnow at 15 Middle Rio Grande sites beginning next week. Approximately 100,000 fish were stocked at the Big Bend National Park reintroduction sites last week.

Reclamation is already releasing water that had been leased for 2013 in order to continue to meet the flow requirements of the 2003 Biological Opinion. Water managers point out that a larger stretch of the Middle Rio Grande would have dried much earlier this summer if it hadn’t been for the coordinated efforts and releases of water from storage.

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Oct 26 2012

CA: BuRec releases Warren contract

The Bureau of Reclamation has released for public review the negotiated 25-year Warren Act contract for Delta Lands Reclamation District No. 770. The terms and conditions of the contract are in accordance with the Warren Act of 1911 and the Reclamation States Emergency Drought Relief Act of 1991.

The proposed contract would allow Delta Lands to re-divert Pre-1914 Water Rights floodwaters (non-Central Valley Project water) from the Kings, St. John’s and Tule Rivers into any unused capacity of the Friant-Kern Canal, as needed, over a 25-year period. The non-CVP water, when introduced, would be conveyed to CVP contractors, non-CVP contractors and other entities who can take delivery of the water from the Friant-Kern Canal.

The receiving contractors/entities would be utilizing the non-CVP water for irrigation, municipal and industrial use, groundwater recharge and/or for the benefit of fish and wildlife. Uses of the non-CVP water would be limited to lands that have previously been developed and/or cultivated and have not been fallowed for three or more years. Non-CVP water, not delivered from the Friant-Kern Canal, would be discharged into the Kern River in accordance with the terms and conditions established by the Kern River Watermaster.

The draft contract is available at http://www.usbr.gov/mp/warren_act.

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Oct 24 2012

AZ: Water comment deadline extended

The comment period has been extended through November 9 on a major water settlement agreement in Arizona.

The Arizona Water Settlements Act and the Arizona Water Settlement Agreement provided for the reallocation of 96,295 acre-feet of relinquished Non-Indian Agricultural Priority Central Arizona Project water. This water was reallocated to the Arizona Department of Water Resources and is held in trust for further allocation by the Secretary of the Interior. The Director of the Department shall submit a recommendation to the Secretary of the Interior for the allocation of this water to specified municipal and industrial water users.

The Department has drafted a proposed process to reallocate this 96,295 acre-feet of NIA Priority CAP water in periodic intervals, and evaluation criteria to recommend reallocation of 75,782 acre-feet of this water by 2014. The Central Arizona Water Conservation District (CAWCD) has developed proposed pricing components for this reallocation. The U.S. Bureau of Reclamation has drafted a review process for receiving the Department’s recommendation for the allocation.

The proposed process, evaluation criteria, pricing components, and review process of the recommended allocation were presentated during a public meeting on October 2.

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Oct 18 2012

NM: Pecos adjudication nears end

Published by under New Mexico

The New Mexico Office of the State Engineer on October 17 announced a
milestone in the Pecos River Water Rights Adjudication
– its pending completion.

NMOSE attorneys representing the State of New Mexico will file a Proposed Decree which will finally determine surface water irrigation rights in the Carlsbad Irrigation District. The Proposed Decree will be filed in District Court in Chaves County on October 15. The Proposed Decree begins the last stage of the CID adjudication which provides certainty to water right owners.

“This Decree is a milestone for New Mexicans in the Pecos Valley,” said State Engineer Scott Verhines. “The drought and struggling economy have put tremendous pressure on farmers, ranchers, dairy producers, and others in Southeastern New Mexico. Completing the adjudication gives New Mexicans the certainty they need to make informed choices regarding their water rights.”

The Proposed Decree is only seven pages long. However, eight volumes containing thousands of pages and over 1200 maps depicting the water rights associated with 25,055 acres of irrigated land in the Carlsbad Irrigation District will also be filed as an Appendix to the Proposed Decree.

The State will mail over 1,500 letters to water right owners informing them of their options and opportunities to review and object to how the Proposed Decree describes the water rights of other parties. This is an important step protecting the due process rights of each water right owner.

The eight volumes of associated materials can be viewed in person at five locations around the State.

Here is how the engineer’s office summarized the adjudication materials filed in October:

These Appendices, Documents and Forms to the Partial Final Judgment and Decree on Surface Water Rights and Supplemental Rights in the Membership Phase of the Carlsbad Irrigation District Section of the Pecos River Stream System Adjudication (“CID Partial Final Decree”) summarize the elements of all water rights in the Carlsbad Irrigation District (“CID“) that were adjudicated by (a) the Partial Final Decree entered on December 10, 2004 (the “Project Phase Decree”), adjudicating the rights of the Carlsbad Irrigation District (the “CID”) and the United States to divert, impound, store, and deliver the public surface waters of the Pecos River stream system and (b) all consent, default, and other final orders entered in the individual subfiles (“Subfile Orders”) of the CID, including any amendments and corrections to those Subfile Orders.

The Project Phase Decree adjudicated the diversion and storage rights of the CID and the United States in the public surface waters of the Pecos River Stream System (“Project Water”) and established the right of the CID to deliver Project Water to its Members (the “Members”). Attached as an exhibit to the Project Phase Decree is a Settlement Agreement executed on March 25, 2003, among the State, the CID, the United States, and the Pecos Valley Artesian Conservancy District. The Settlement Agreement is a part of and incorporated into the Project Phase Decree.

The Court determined in a series of orders (“Threshold Orders”) that the Members of the CID are the beneficial owners of Project water rights but that the nature and extent of their beneficial interest is governed by certain federal and state laws, the rules and regulations of the CID, Subfile Orders, and any applicable contracts among CID and its Members. The Threshold Orders and the Project Phase Decree are included in their entirety in Appendix E.

Certain elements of the surface water rights of the Members of CID were determined by the Project Phase Decree and the Threshold Orders. Those elements are summarized in Appendix B. The other elements of the Members’ surface water rights, together with the Members’ rights to groundwater as a supplemental supply to surface water rights (hereinafter “supplemental rights”), were determined in the Subfile Orders and other final orders entered in the individual subfiles of the Members.

A Subfile Order adjudicates the water rights described therein as of the date of the order and does not reflect any change in ownership or changes to the elements of a water right occurring subsequent to that date.

These Appendices are a summary only and do not replace, or in any way modify, the Project Phase Decree, the Threshold Orders, any Subfile Order or other order of the Court. In the event of a conflict between these Appendices and the Project Phase Decree or other court order, the Decree and court order are controlling.

There are eight Appendices:

Appendix A is this introduction with explanatory notes and definitions of terms.

Appendix B sets forth all conditions that are applicable to every subfile in the Membership Phase of the CID Section of the Pecos River Stream System adjudication (“Membership Phase“) as a consequence of the Project Phase Decree. These include the priority dates and amounts of water for all surface water rights in the Membership Phase, all provisions for the storage and distribution of water, and the legal requirements that are binding on all subfiles.

Appendix C lists, by Subfile Number, the title and date of filing of every consent order, amended consent order, amending order, and correcting order for every subfile in the CID Section.

Appendix D contains Summaries of the water rights for each subfile in the Membership Phase, valid as of the date the subfile order was entered, with an individual map showing the irrigated acreage within that subfile.

Appendix E contains the Threshold Orders and other orders entered by the Court, as well as other legal documents, that pertain to all subfiles in the Membership Phase.

Appendix F contain large-scale CID Section Hydrographic Survey Map Sheets (1999-2012), showing the adjudicated irrigated tracts for all subfiles in the CID Section and representing the Court record as of the date of the filing of the CID Partial Final Decree.

Appendix G contains a list of points of diversion of surface water and supplemental wells for all water rights in the Carlsbad Irrigation District.

Appendix H contains indices to the individual subfile Summaries in Appendix D. This sortable indice allow the Summaries to be sorted by Owner Name, CID Assessment Number , OSE Subfile Number, Court Number, OSE File Number for Supplemental Right or Surface Right, OSE Point of Diversion Number for Supplemental Right or Surface Right, and Large-Scale Hydrographic Survey Map Sheet Number.

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Oct 17 2012

OK: State considers water issue on ballot

Published by under Oklahoma

Oklahoma voters will be considering, along with much else, a specially water-oriented measure on their November election ballot: State Question 764.

A description (with argument in favor) from a presentation by the Oklahoma Water Resource Board:

$82 Billion need identified for Oklahoma’s
water and wastewater infrastructure over the next 50 years

OWRB’s five successful grant and loan programs can only satisfy 4% to 9% of the state’s projected financing demand

Perhaps the most important reason…

Ensure clean water for future generations

Small, medium and large communities ALL need access to low-cost financing

Greatest need in small- and medium-sized communities:

Historically, over 75% of OWRB’s financings went to these communities

OWRB programs allow communities access to more aggressive interest rates

This rate is often better than what most systems can get in the open market – SRF AAA and FAP AA+

Access to these rates saves systems and their customers $$$ over traditional financing options

OWRB programs are reaching full capacity OWRB will use the State’s pledge to leverage funds in the bond market as projects are ready to begin construction By leveraging against the pledge of $300 Million, OWRB will be able to fund approximately $3 Billion in infrastructure projects (largest estimated need in any one period)

This is NOT a Bond Issue or a Tax Increase – Just a pledge of credit

Access to reduced interest rate financing remains insufficient to meet demand

Increased costs must be borne by Oklahomans – water/sewer bills will increase Clean, drinkable water may not be available… or it will only be available at a much higher cost for future generations

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Oct 04 2012

NV: State issues findings on east fork of Owyhee

Published by under Nevada

Nevada State Engineer Jason King on October 3 issued a determination outlining extensive and detailed findings on disputed water rights in the East Fork of Owyhee River in northern Nevada.

It may be one of the most extensive and detailed single such orders Nevada has seen. It runs well over 100 pages, and covers many technical issues as well as numerous legal matters.

The order is available on line.

The mouth of the Owyhee River, which flows into the Snake River, is in Oregon, and the river also flows through southwestern Idaho. Its upper regions and headwaters are in north-central Nevada.

Excerpts from the order of determination of rights in the east fork of the Owyhee River:

A Petition for the Determination of Water Rights of the Waters of Owyhee River and Its Tributaries was filed with the Nevada State Engineer on January 21, 1924, by Henry Winter and Barney Monestario of Whiterock, Nevada. On January 24, 1925, the State Engineer issued a Notice of Order and Proceedings in the Matter of the Determination of the Relative Rights in and to the Waters of the Owyhee River and its Tributaries, in Elko County, State of Nevada, to determine the pre-statutory vested water rights within said drainage. It was further ordered that the proceedings were to begin on the 2nd day of March 1925. The Notice of Order and Proceedings was sent to publication in the Elko Independent newspaper and was published for five consecutive weeks beginning on January 27 and ending on February 24, 1925.

The adjudication process failed to progress from the 1925 notice of proceedings until July 14, 1989, when the State Engineer issued an Order Reinstating Proceedings for the adjudication of the relative vested water rights of claimants to the surface water and groundwater of the East Fork Owyhee River and its tributaries including the natural drainage areas of said system in Elko County and Humboldt County, Nevada.

The original proceeding was divided into two separate
proceedings. One to include all rights in the natural drainage of the East Fork Owyhee River, which includes Wild Horse Reservoir, all the tributaries and the main stem of the river both upstream and downstream of said reservoir. The other proceeding is to include all rights in the natural drainage basins of the South Fork of the Owyhee River, the Little Owyhee River and their tributaries.

In accordance with the provisions of Nevada Revised Statutes (NRS) § 533.090 through 533.320, inclusive, the State Engineer also issued a Notice of Order and Proceedings to Determine Water Rights. On August 25, 1989, the State Engineer issued Order No. 1001, the Notice of Order for Taking Proofs to Determine Water Rights setting forth the requirement that all those making claims to water rights in the surface water of the Owyhee River (sometimes called the East Fork Owyhee River), the South Fork of the Owyhee River and the Little Owyhee River and their tributaries in Elko County and Humboldt County, Nevada, including the groundwater in the hydrographic area, were required to file proof of their claims between November 30, 1989, and November 30, 1990.

The notice was published weekly commencing on September 22, 1989, and ending on October 20, 1989, in the Elko Daily Free Press within Elko County, and commencing on July 19, 1989, and ending on August 16, 1989, in the Humboldt Sun within Humboldt County, newspapers of general circulation within the boundaries of the hydrographic system.

On September 5, 1989, the State Engineer sent by certified mail to each potential claimant that could be reasonably ascertained the Order Reinstating Proceedings (Order No. 995), the Notice of Order and Proceedings to Determine Water Rights (Order No. 996) and Notice of Order for Taking Proofs to Determine Water Rights (Order No. 1001).

Pursuant to requests from several potential claimants, the State Engineer extended the period for filing Proofs of Appropriation to November 30, 1991. By letter dated September 4, 1991, the State Engineer again extended the deadline for filing Proofs of Appropriation until June 15, 1992. Pursuant to additional requests to extend the deadline for filing Proofs of Appropriation, the State Engineer extended the deadline multiple times until December 15, 1994.

Field investigations of the hydrographic system, ditches diverting water, and irrigated lands were conducted on May 13-16, June 17-25, July 22-29 and August 19-25, 27 and 28, 1997, May 24-May 28, 1999, June 18 and 21, 2001, July 17, 19 and 20, 2001, and August 20-22, 2001. The field investigators’ observations and measurements were reduced to reports of field investigations. Surveys and their corresponding maps were caused to be prepared and submitted by the claimants to the Nevada Division of Water Resources, Office of the State Engineer.

Pursuant to a Memorandum of Understanding dated April 9, 1991, the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation, the United States and the State of Nevada began negotiation of the water rights claimed by the United States for the Duck Valley Indian Reservation. On July 22, 1992, Amendment No. 1 was added to the Memorandum of Understanding. In 2006, the claimants reached a settlement and signed the Agreement to Establish the Relative Water Rights of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation and the Upstream Water Users, East Fork Owyhee River (hereinafter the Duck Valley Settlement Agreement). The Agreement was ratified by the United States Congress on March 30, 2009, and was titled Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement (hereinafter the Duck Valley Settlement Agreement).

The Duck Valley Settlement Agreement provides that the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation shall have the right to 111,476 acre-feet of surface water from the East Fork Owyhee River Basin and a right to the entire flow of all springs and creeks originating within the exterior boundaries of the Duck Valley Indian Reservation. The priority date of the Tribes’ water right is April 16, 1877, and the period of use is from January 1st through December 31st of each year. The Duck Valley Settlement Agreement provides that the Tribes may divert, consume and store their water or authorize others to divert, consume and store tribal water. The Tribes shall have the right to 2,606 acre-feet of groundwater based on all groundwater historically or currently used on the Duck Valley Indian Reservation and a potential for additional groundwater if it can be substantiated that more water is available for use. The Duck Valley Settlement Agreement provides that the water right of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation is to be administered on the Duck Valley Indian Reservation exclusively by the Tribes in accordance with a water code to be adopted by the Tribes within three years of the effective date of the Duck Valley Settlement Agreement and by the Secretary of the Interior prior to that time. Use of the Tribes’ water rights off the Duck Valley Indian Reservation is subject to applicable federal and state law.

Pursuant to NRS § 533.140, on April 29, 2010, the State Engineer affixed his signature to the Abstract of Claims and Preliminary Order of Determination. By Notice dated May 20, 2010, the State Engineer provided the Claimants with copies of the Abstract of Claims and Preliminary Order of Determination and informed the Claimants that in accordance with NRS § 533.145 objections to the Preliminary Order of Determination would be accepted until August 18, 2010. The Claimants were also informed that the evidence, maps, plats, proofs of claims and related data were open for inspection from July 19, 2010, through August 18, 2010, in Carson City, Nevada.

Pursuant to NRS § 533.145, objections to the Preliminary Order of Determination were filed by the United States Department of Interior, Bureau of Land Management, the United States Department of Agriculture, Forest Service, Doris Widerburg, the United States Department of Interior, Bureau of Indian Affairs together with the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation (BIA/Tribes) and the Upstream Water Users. Since NRS § 533.145 does not require objectors to serve copies of their objections on the other parties to the adjudication, the State Engineer posted the objections on the Nevada Division of Water Resources’ website so that all were fully informed of the issues raised by those objections.

Prior to setting an administrative hearing under the provision of NRS § 533.150, and by several notices dated November 10, 2010, and April 15, 2011, July 28, 2011, the State Engineer indicated that some of the issues raised by the objections could be addressed in writing without the time and expense of addressing such matters at an administrative hearing and provided the objectors with timeframes to respond to said objections. The State Engineer finds that the objections were able to be addressed and an Order of Determination issued using the responses and replies that addressed the objections.

Discussion concerning federal reserved reserved water rights.

The United States Department of Agriculture, Forest Service (USFS) filed Proofs of Appropriation R-07331 and R-08687 claiming an implied federal reserved water right under the Organic Administration Act of 1897 for firefighting purposes with a priority date of November 5, 1906. This claim was filed as one for an implied federal reserved water right from any and all sources, including groundwater, whether named or not, and the quantity claimed is the amount necessary to suppress fires on national forest lands located within the East Fork Owyhee River drainage, which includes, but is not limited to, fire suppression, water at fire camps, road watering and watering pack stock.

The State Engineer’s analysis in the Preliminary Order of Determination was that the State Engineer found nothing in the legislative history and the primary purposes of the Organic Administration Act of 1897 to believe these claims have anything to do with the primary purposes of the reservation. The State Engineer further found that these claims were so unspecific as to source and quantity that they could never be recognized in an adjudication proceeding under Nevada Water Law. The USFS objected to the rejection of these claims and argues in making the claims it is not obligated to meet state law requirements.

The USFS states that the United State Supreme Court’s decision in United States v. New Mexico, found that the primary purposes of the forest
service reservations under the Organic Administration Act of 1897 are for the purpose of securing favorable conditions of water flows and to furnish a continuous supply of timber for the use and necessities of citizens of the United States. It indicates that the Court noted that the key “…objects for which the forest reservations should be made are the protection of the forest growth against destruction by fire and ax, and preservation of forest conditions upon which the water conditions and water flow are dependent.

The objects for which the forest reservations should be made are the protection of the forest growth against destruction by fire and ax, and preservation of forest conditions upon which the water conditions and water flow are dependent. The purpose, therefore, of this bill is to maintain favorable forest conditions, without excluding the use of these reservations for other purposes. They are not parks set aside for nonuse, but have been established for economic reasons. (Emphasis added.)

The USFS argues that this clearly demonstrates that Congress intended to secure sufficient water to protect forest growth against destruction by fire. The State Engineer notes that the USFS did not include the full quote from the case, which is:

“’In the national forests there must always be kept in mind as primary objects and purpose the utilitarian use of land, of water, and of timer, as contributing to the wealth of all the people.’ HR Rep No. 700, 64th Cong, 1st Sess, 3 (1916).” “The water that would be ‘insured’ by preservation of the forest was to ‘be used for domestic, mining, milling, or irrigation purposes under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder.’ [Citation omitted.] As this provision and its legislative history evidence, Congress authorized the national forest system principally as a means of enhancing the quantity of water that would be available to the settlers of the arid West.”

Proofs of Appropriation R-07331 and R-08687 state that the USFS claims to reserve any and all sources, including groundwater, whether named or not. The means of diversion is identified as “by whatever means is appropriate, including but not limited to, pumps but water might also be dipped by helicopters. The total quantity claimed is the amount necessary to suppress fires, which includes but is not limited to fire suppression, water at fire camps, road watering and watering packstock.

The State Engineer finds that while suppression of fires certainly supports the primary purpose of securing favorable conditions of water flows and furnishing a continuous supply of timber for the use and necessities of citizens of the United States, it must be addressed in light of the fact the same court held that a primary object and purpose was that the forests were to be used for domestic, mining, milling, or irrigation purposes under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder and that Congress authorized the national forest system principally as a means of enhancing the quantity of water that would be available to the settlers of the arid West. The State Engineer finds to determine that every drop of surface and groundwater found anywhere in a national forest is reserved to the USFS with an 1897 priority would defeat the purpose of using the forests.

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