Archive for February, 2013

Feb 27 2013

MT: Flathead compact goes to legislature

The Montana Reserved Water Rights Compact Commission on February 26 approved an agreement with the Confederated Salish and Kootenai Tribes covering water use by the Flathead Irrigation Project.

From a Compact Commission report on the agreement:

The Confederated Salish and Kootenai Tribes, the State of Montana and the United States have agreed to a series of revisions to the proposed water rights settlement released to the public in October and updated in November 2012. These revisions have been made in response to public comments that were made to the Parties in writing or during the roughly two dozen meetings across western Montana that the Parties have held over the past few months. The settlement is comprised of a proposed Water Rights Compact, which includes a series of appendices, and a proposed Unitary Administration and Management Ordinance. The documents below are the final set that the Parties expect to seek to have ratified by the 2013 Legislature.

Please note that the water rights abstracts that make up several of the Compact appendices continue to be marked as “draft.” This is because these abstracts will not become enforceable until after the Water Court approves the Compact and issues a decree including these rights. These draft abstracts are the set of abstracts that the Parties intend to have the Water Court approve at the appropriate time and they spell out the proposed quantification of the Tribes’ water rights in great detail.

After State ratification, both the US Congress and the Tribes would need to approve the settlement. After the three Parties act to ratify the settlement, it would be submitted to the Water Court for final approval.

The agreement notes, “The Tribes have the right to water that is supplied to the Flathead Indian Irrigation Project to be used for such purposes in such volumes and flow rates and from such sources of supply as identified in abstracts of water right attached hereto as Appendix 5 to this Compact. The exercise of this portion of the Tribal Water Right is subject to the FIIP Water Use Agreement entered into by the Tribes, the Flathead Joint Board of Control, and the United States. … The priority date for the portion of the Tribal Water Right used by the FIIP is July 16, 1855.”

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Feb 26 2013

New power privilege website

The Bureau of Reclamation has developed a new website to assist customers, stakeholders and those interested in developing hydropower under the Lease of Power Privilege process. “This website provides the necessary information that potential developers and stakeholder groups need on Lease of Power Privilege,” said Senior Advisor Hydropower Kerry McCalman.

Documents provided on the site include the Directive and Standard that defines the process, responsibilities, timelines and charges; flowcharts, examples and guidance documents; current LOPP projects; and guiding legislation.

Reclamation finalized the LOPP process requirements in September 2012. These requirements provide clear guidance and timelines, assign roles and responsibilities, set a standard methodology and identify potential charges for developers.

A LOPP is used when Reclamation chooses to lease its right to develop hydropower at one of its facilities when that power development doesn’t interfere with other authorized project purposes.

The new website may be found at

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Feb 25 2013

ID: On earlier adjudications

The Snake River Basin Adjudication isn’t the first general water rights adjudication in Idaho: There have been many, all smaller in scope than the SRBA but widely scattered around the Snake River Basin. One of the difficult issues in the SRBA for years has involved reconciling those earlier and more limited adjudications, which are generally not considered to be invalid, with the current one.

That came up in a subcase (65-23481) decided on February 27 by Judge Eric Wildman, bringing into play earlier adjudications in the Lemhi River and Payette River basins.

The specific case concerns a late claim to rights claimed by Allen Ranch LLP in the Payette River area, earlier reviewed by a special master.

In his description of the background, Wildman noted “The Special Master’s initial recommendation analyzed the late claim under two separate components: the stockwater claim; and the early and late period of use irrigation claim. The Special Master initially determined that the filing of the early and late period of use portion of the late claim was barred for failure of the claimant, Allen Ranch, LLP, to have the right adjudicated in the Payette Adjudication. The Special Master reasoned the Payette Adjudication decreed all rights to the Payette River established prior to October 19, 1977.

“As such, any rights established prior to that date but not adjudicated in the Payette Adjudication were deemed lost under principles of res judicata as well as the express language of the Payette Decree. Thereafter, the Claimant filed a Motion t0 Aller or Amend the Special Master’s Recommendation asserting this Court’s decision in Order Conditionally Granting Motion to File Late Notice of Claim; 0rder Requiring Filing of Amended Claim; Order Requesting Amended Director’s Report if Amended Claim is Filed, Subcases 74-15015 and 74-15861 (Jan 12, 2009). The Special Master followed the holding in Riggan and recommended that the claim be allowed to proceed based on law-of-the-case but recommended that the Court re-evaluate the holding in Riggan.”

The surprise in the case was the new decision’s ruling that the holding in the Riggan case was erroneous:

“Although, the Court’s ruling was not contested, it was in error in two respects. First, even if a “window” existed for the filing of a beneficial use claim, the claim would still have had to be confirmed in the final judgment, which it was not. … Similarly, in the instant case, the “window” is also irrelevant. The Payette Decree by its express language decreed all water rights established prior to October 19, 1977, and provided further that such rights having earlier priorities that were not claimed were deemed forfeited.”

Wildman said that he agreed with the special master’s legal reasoning, however, and because of that the claimant had not met the standard needed to support a late notice of claim.

He concluded, “this Court adopts the Amended Special Master ’s Report and Recommendation except for the part of the recommendation that the Claimant “be granted leave of court to file a beneficial use claim for the early and late irrigation season with a priority date no earlier than May 20, 1971, and no later than July l, 1971.” For the reasons previously explained, the Court rejects this part of the recommendation on the basis that the Claimant has failed to meet the “meritorious position” standard.”

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Feb 25 2013

AZ: Non-Indian CAP allocation discussed

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 (Department) 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 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 a portion of this water by 2014. The Central Arizona Water Conservation District developed proposed pricing components for this reallocation. The U.S. Bureau of Reclamation (Reclamation) drafted a review process for receiving the Department’s recommendation for the allocation. A public meeting was held on October 2, 2012 at the Department offices to present the background of this reallocation and these proposed components.

The Department accepted questions and comments regarding the proposed reallocation during the meeting as well as through the comment period which ended on November 9, 2012.

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Feb 25 2013

CA: BuRec releases allocation for Central Valley

The Bureau of Reclamation on February 25 announced the initial Water Year 2013 water supply allocation for Central Valley Project agricultural contractors, municipal and industrial contractors and federal refuges.

The California Department of Water Resources reports that snowpack and precipitation in the Sierra Nevada are below normal with the snow water content statewide at 70 percent of average for this time of year. Additionally, DWR’s February WY 2013 Runoff Forecast indicates a dry water year type for the Sacramento Valley and a critical water year type for the San Joaquin Valley.

The 2013 water year is unfolding in a unique way. Reclamation began WY 2013 (October 1, 2012, to September 30, 2013) with 6.9 million acre-feet of carryover storage in six key CVP reservoirs, which is 98 percent of the 15-year average for October 1. Storms in late November and December resulted in above-average snowpack conditions in Northern California and contributed to above-average storage in Shasta and Folsom Reservoirs; however, the San Joaquin River watershed did not fare as well. This mixed start to the water year was then followed by one of the driest combined Januarys and Februarys on record, leading to what has become a challenging water year.

In addition, water supplies from the state and federal pumps in the south Delta have been reduced significantly this year to protect delta smelt, a threatened species under the Endangered Species Act. Although Reclamation has operated the CVP in a manner consistent with the biological opinion designed to protect the smelt, unanticipated numbers of smelt have been observed at the pumps. Storms in December 2012 flushed large amounts of sediment into the Delta, which may have set up a situation for elevated delta smelt migration into the central and south Delta well into February. Reclamation began to cut back on pumping operations in late December to protect the smelt, and pumping reductions have been required throughout January and February.

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Feb 21 2013

SD: Floodwater rights bill dies

Published by under flood,South Dakota

What are the water rights when water floods, overflows banks and runs across usually dry property? Who has the rights, and for what?

A measure in South Dakota, which has experienced some flooding in recent years, took aim at that question, but became controversial enough to die before passage.

House Bill 1135, sponsored by Representative Charlie Hoffman, R-Eureka, and other House members, answered the flood water question simply: The water travelling over the land of a private land owner was that land owner’s water, at least temporarily.

The measure passed the House before engendering hot discussion around the state. It died in a Senate committee, just ahead of a hearing packed by sportsmen and others critical of the measure.

The bill grew in part out of state Supreme Court decision about nine years ago suggesting that the question of excess water was one that state law simply didn’t address, and that the legislature should consider and address it.

A web site named argued, “Attention, everyone needs to do there part to protect our outdoor heritage this could completly change South Dakota outdoors as we know it so please take the time to inform yourself and please email our South Dakota represenitives to tell them to vote down bill HB 1135 they vote will be on Tuesday the 12 of Feb. so we have no time to waste we need to get on this right of way.

“Talking points against HB 1135: Access onto water over private land; This bill is the most anti-sportsman legislation in recent years, and will in fact negatively affect every man, woman and child in SD. The intent of the bill is to overturn over 130 years of water law and make all non-meandered public waters private. Over one million acres of water will be taken from the public for use exclusively by private interests. This Legislation affects non-meandered lakes, all rivers and all streams everywhere in South Dakota.”

The opinion piece continued: “As we have seen, low water can prevail for decades, fish populations change, fur prices go up and down, and dozens of other variables enter into the use of a body of water. These distinctions do not justify depriving the public of its interest in public waters, but that is exactly what this proposed bill will do. This is an issue that could impact and completely change the tradition of access onto the public­s water here in South Dakota. The impact is not limited to fishermen and hunters. The bill also covers, wading, bird watching, or just floating on an old inner tube enjoying the sun.

“THE PROPOSED LEGISLATION IS AN OUTRIGHT GIVEAWAY OF PUBLIC PROPERTY. USFWS service numbers show a total of 932,829 wetland basins in East River SD, and 172,867 West River, for a total of just over 1.1 million wetlands and lakes. These basins and the rivers and streams that connect them comprise 9.8% of the surface area of East River, and 2.4% of West River. The average basin size is less than ­ acre. Of these 1.1 million basins, fewer than 2000 are considered to be permanent, natural wetlands. Many of these are meandered* and are not affected by HB 1135. However, the legislation does affect well over 99% of these basins. (These figures do not take into account the thousands of rivers, streams and creeks which will also be impacted by HB 1135!)”

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Feb 14 2013

TX: Edwards habitat plan approved

Published by under Edwards Aquifer,Texas

A Habitat Conservation Plan covering the Edwards Aquifer will be granted approval by the US Fish and Wildlife Service, bringing unprecedented assurance to the region’s ability to maintain local control over its most valued water resource. The US Fish and Wildlife Service today announced it has published its Record of Decision regarding its intent to approve the Edwards Aquifer Habitat Conservation Plan and issue the Incidental Take Permit in the Federal Register.

According to federal process, the ITP will be “issued” to the Edwards Aquifer Authority and its co-applicants — the City of San Marcos, the City of New Braunfels, the San Antonio Water System, and Texas State University — 30 days from the date of publication in the register. This historic achievement brings resolution to the decades-old conflict between the region’s use of the aquifer and the species protection required by the Endangered Species Act.

“Approval of the EAHCP is a momentous achievement for the entire Edwards region,” said Luana Buckner, chair of the EAA board of directors. “We finally have an answer to Judge Bunton’s decree of 20 years ago that told us to address the endangered species issue or else the federal courts would. Having a plan in place to ensure protection for the species means we now have greater assurance in our right to use the Edwards Aquifer as a water resource.”

State Rep. Doug Miller, Dist. 73, said, “Sustainable water resources are critical to the future of our state, and certainly no natural resource is as critical to a region as the Edwards is to greater south central Texas.” The former chairman of the EAA board of directors added, “I am particularly proud of the region for coming together to develop this plan. It validates that we are fully capable as Texans of managing our natural resources in a responsible way rather than having the federal government dictate to us. It also benefits protected species and preserves the economic well-being and sustainability of our diverse communities who depend on the aquifer.”

State Sen. Glenn Hegar, Dist. 18, added, “The value of this HCP has been in the consensus process that built agreement where there once was disagreement. By providing coverage to all user groups including residential, municipal, recreational, and agriculture users, this HCP gives us broad economic certainty across the region, which will serve us well as we continue to work toward firming up our water supplies for the future.” Hegar authored legislation in 2007 that amended the EAA Act to include the Edwards Aquifer Recovery Implementation Program (EARIP) process that led to the development of an HCP.

The EAHCP is a plan built on region-wide consensus by over 39 stakeholder groups that participated in the EARIP. Five-plus years in the making, the EAHCP is designed to protect various species that are listed as threatened or endangered under the Federal Endangered Species Act and whose only known habitats are the aquifer-fed Comal and San Marcos springs.

The ITP protects the users of the Edwards Aquifer and associated spring systems from liability in the event incidental harm comes to the threatened or endangered species protected by the Endangered Species Act caused by use of the aquifer and spring systems. For more information regarding the EAHCP visit

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Feb 12 2013

CA: Conferring on threatened species, lower flows

State and federal officials are conferring on measures needed to provide for the water security of California and to protect the threatened delta smelt after pumping levels through the Sacramento-San Joaquin Delta were reduced in the short term to protect the fish.

In addition, the Interior Department’s Bureau of Reclamation, in coordination with California’s Department of Water Resources, is reinitiating informal consultation with the U.S. Fish and Wildlife Service and in cooperation with the California’s Department of Fish and Wildlife to evaluate a range of potential alternatives to best meet the needs of the fish and water users during this challenging water year.

Interior and California officials are also reemphasizing their commitment to move forward with the Bay Delta Conservation Plan, which would implement a long-term solution for reducing or avoiding the conflicts that are being seen again this year between water deliveries through the Delta and fishery needs.

In response to some projections that within a few weeks the current authorized incidental take threshold for adult delta smelt could be exceeded, the Service has directed state and federal water operators to further reduce pumping from facilities located in the South Delta. Over the past two months, delta smelt, a fish listed under both the federal and California Endangered Species Acts, have been steadily entrained at the water diversion pumping plants operated by Reclamation and California’s DWR in the southeastern Delta. About 75 percent of the estimated incidental take of adult delta smelt for the operating season has occurred with nearly two months left before the period of concern for adult delta smelt ends.

“The actions the Service are requesting were recommended by the joint federal-state Smelt Working Group and are intended to reduce the incidental take of delta smelt,” said U.S. Fish and Wildlife Service Pacific Southwest Regional Director Ren Lohoefener. “The current water year has unfolded in a unique way and Reclamation and the Department of Water Resources have worked hard with the Service to find solutions during a difficult season. The agencies, including California Department of Fish and Wildlife, are closely monitoring the situation and are conferring on appropriate measures to protect delta smelt while ensuring the ongoing availability of water supplies for millions of Californians.”

On Friday, February 8, the Service determined that the combined net Old and Middle River flows in the central Delta should be no more negative than -1,250 cubic feet per second (cfs) on a 14-day running average, with a simultaneous 5-day running average no more negative than -1,563 cfs. This is a decrease from the most recently permitted flow of -2,500 cfs.

“We will work closely with the Service and the Department of Water Resources to implement this change while also reassessing conditions in the Delta and available options related to our water supply operations for the next several months,” said David Murillo, Regional Director of Reclamation’s Mid-Pacific Region. “This water year underscores the need for our agencies to work together to find a comprehensive, long-term solution to achieve the dual goals of a reliable water supply for California and a healthy California Bay Delta ecosystem that supports the state’s economy.”

These actions come as state and federal agencies are considering a proposal for a new water conveyance facility to move water through the Delta and help restore the health of the ecosystem. The BDCP is designed to help restore fish populations, protect water quality, and improve the reliability of water supplies for all water users who depend on the Delta for deliveries from state and federal projects. Because the conveyance proposed as part of the BDCP would divert water from a location north of the Delta, biologists believe that take of delta smelt from operation of the South Delta facilities could be reduced.

Adult delta smelt migrate into the Delta and spawn during the winter and early spring months. Depending on Delta conditions during their upstream migration, some adults may enter areas of the Delta where they become vulnerable to entrainment at the federal and state pumping plants. At the pumping plants, entrained smelt are sampled periodically. Entrainment of delta smelt often results in mortality and is considered incidental take under the Endangered Species Act.

Authorized incidental take represents the amount of harm to a threatened or endangered species expected to result from the operation of the state and federal projects while operating in compliance with the biological opinion. If the estimate of incidental take is exceeded, Section 7 consultation will be reinitiated to evaluate the adequacy of the protections in place, the basis for the amount of authorized incidental take, and, where available, improvements in the measures needed to protect the species. Reinitiation of consultation will ensure that the delta smelt is not jeopardized as a result of modifications to the incidental take statement or other provisions of the Biological Opinion.

The first delta smelt was counted at the pumps on Dec. 12, 2012, and the Service initiated Action 1 of Reasonable and Prudent Alternative component 1 of the Biological Opinion on Dec. 17, 2012.

This action, the seventh determination made this 2012-2013 water year to comply with the biological opinion, was taken based on information about Delta conditions provided by participants of the Delta Conditions Team, and considered in the Smelt Working Group recommendations. All of the Determinations and the Smelt Working Group Notes are posted on the web site of the Service’s Bay-Delta Fish and Wildlife Office at

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Feb 12 2013

CA: Conaway preservation settlement released

The Bureau of Reclamation on February 12 announced the availability of the draft Amendatory Contract between the United States and Conaway Preservation Group, LLC, Diverter of Water from Sacramento River Sources, Settling Water Rights Disputes and Providing for Project Water.

The Contract being amended is “Contract No. 14-06-200-7422A-R-1, dated March 4, 2005”. This amendatory contract is intended to recognize the impending assignment of 10,000 acre-feet of base supply to the Woodland Davis Clean Water Agency. The changes to the contract reduces the amount of base water supply by 10,000 acre-feet under the Conaway Contract, approves a new point of diversion, and adds municipal and industrial as a purpose of use. The assignment has been approved by the State Water Resources Control Board on December 21, 2012 and Conaway’s Water Right License was amended to reflect the assignment.

The Contract is available on Reclamation’s website.

Written Comments may be sent to Natalie Wolder, Bureau of Reclamation, 1140 West Wood Street, Willows, CA 95988. You may also contact Natalie by phone at 530-934-1356 or email The comment period is 60-days. All comments must be received by close of business Friday, April 12

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Feb 07 2013

NM: Habitat restoration may help with supply

Published by under New Mexico

The New Mexico Interstate Stream Commission has scheduled additional construction and maintenance to begin in mid-February on the Atrisco Habitat Restoration Project to reduce vulnerability to the drought and help protect both our environment and water users.

The Atrisco Habitat Restoration Project is part of the agency’s effort to create and enhance habitat for the endangered Rio Grande silvery minnow and other native species in the Albuquerque reach of the river. These efforts contribute to federal Endangered Species Act compliance and help water users in the middle Rio Grande valley, especially during these times of drought.

Area residents should expect truck traffic to cause temporary traffic slowdown on Central Ave west of the Rio Grande Bridge from February 11-25 as crews haul materials to the project site.

Construction of the project will occur in the Rio Grande Bosque and floodplain about one-half mile north of the Central Avenue Bridge on the west bank of the river within Rio Grande State Park between February 28 and March 20. Access to construction areas will be restricted from 7:00 am – 5:00 pm Monday through Saturday however, bosque trails should remain accessible. The public is urged to use caution when construction equipment is present and to obey all safety signs.

The Interstate Stream Commission is working on this project with cooperation and support from the Albuquerque Bernalillo County Water Utility Authority, Bureau of Reclamation, City of Albuquerque Open Space Division, Middle Rio Grande Conservancy District, Middle Rio Grande Endangered Species Collaborative Program, and US Fish and Wildlife Service.

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