The National Water Rights Digest

Vol. XVI, No. 5 ISSN 1068-8994

Water rights, policy, adjudication www.ridenbaugh.com/waterrights/

Drought in the United States for 2010 does not appear to be widespread but it could be strong in a few areas. (map/U.S. Geological survey)

Top story

Floyd Dominy passes at 100

One of the longest serving Commissioners in the history of Reclamation, Floyd Dominy, has passed away at the age of 100. Dominy served as Reclamation Commissioner from 1959 to 1969 serving under Presidents Eisenhower, Kennedy, Johnson, and Nixon.

“Reclamation has a long history of ‘larger than life’ Commissioners and Floyd was certainly at the top of that list,” said Reclamation Commissioner Michael Connor. “I

hope I have the strength, determination, and tenacity to carry on the legacy that Floyd set in this position to implement my agenda for Reclamation, as he was with his.”

Dominy joined Reclamation in 1946 as a land settlement specialist. He supervised the Allocations and Repayment Branch, Division of Irrigation in 1950. He rose to Assistant Commissioner in 1957 and was named Associate

May 2010

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Commissioner in 1958. He retired from Reclamation in 1969.

Notable events that occurred during his term as Commissioner include the completion of Glen Canyon, Flaming Gorge, and Navajo dams of the Colorado River Storage Project. He also played a role in the authorization and initiation of construction of the San Luis Unit and pushed for the completion of the Trinity River Division, Central Valley Project.

Dominy was born and grew up on a farm in Adams County, Neb., and graduated from the University of Wyoming in 1932.

“This is definitely the end of an era. His was a life full of great accomplishments and he will definitely be missed,” added Connor.

East

MI: Water trust bill criticized

Michigan House Bill 5319 is short – just two pages – and its essence comes down to a sentence or so: “The waters of the state, including groundwater, are held in trust by the state. The state shall protect these waters and other natural resources that are subject to the public trust for the benefit of present and future generations.”

Short and simple it may be, but not uncontroversial. The measure, which has passed the House, has drawn concern that some existing water users may be impacted. The Oakland County committee on government has passed a measure declaring, “HB 5319 is attempting to quietly strip away these property rights without landowner compensation and poses a dangerous threat to the economic prosperity of the State of Michigan and Oakland County.”

Backers of the bill warn that while the new Great Lakes Compact does provide some restrictions on export of water from the region, it allows for some export in bottles.

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Russ Harding, senior environmental analyst and director of the Property Rights Network at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, said in an article for the Detroit Free Press, “Placing groundwater in government ownership is not needed to protect our natural resources. Worse, it is bad public policy. Michigan’s water is an economic asset and is the envy of most states. Wise use of water should be encouraged to serve as a catalyst for providing much-needed jobs in the state, rather than turning that asset into a liability by subjecting job providers to a new, costly and time-consuming permit process. Water rights are an important component of property rights. Michigan voters recognized the importance of protecting against physical taking of property by passing Proposition 4 in 2006, making it more difficult for government to take property by eminent domain. Protecting private water rights from regulatory taking is no less important.”

GA/AL/FL: Georgia files its appeal

The state of Georgia has formally filed its expected appeal to last summer’s federal court decision requiring it to send downstream a great deal of water it now uses in the Atlanta metro area.

The filing is sure to be contested by the other parties in the case, Alabama and Florida.

Last July 17 U.S. District Judge Paul Magnuson (sitting in Minnesota) delivered a ruling which threatens to cost Georgia much of the water it relies on for the Atlanta metro area. Lake Lanier, a water body in Georgia, for decades has been a source of water for metro Atlanta but also for parts of Alabama and Florida—it feeds rivers which run through those states—and the three states have battled for years over the diversions. The water has been diverted by the U.S. Army Corps of Engineers. Alabama filed a federal lawsuit over the matter in 1990, and Florida subsequently joined. Magnuson said that if by the summer of 2012 no tri-state agreement has been reached, or congressional action taken, then a large part of the Lake Lanier water will have to be sent downstream.

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Since then, Georgia has been moving on both the negotiation and congressional fronts.

Central

TX: Will planning devalue rights?

The T. Boone Pickens company Mesa Water LP is filing a lawsuit against three local Texas water planning entities arguing that their planning efforts could have the effect of devaluing his water rights.

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The suit was reported filed in March, with the statewide Texas Water Development Board noted as a defendant.

Pickens said the planning effort could have the effect of taking as much as 18,000 acre feet of water in the Ogallala Aquifer from him and another business party.

See http://www.nytimes.com/aponline/2010/04/20/business/AP-TX-Pickens-Water-Lawsuit.html?_r=1&dbk

KS: Conservation plans run aground

Entering this year’s Kansas legislative session, state Agriculture Secretary Josh Svaty offered up a major proposal aimed at cutting down water wastage.

Since the keeping of a water right is dependant on the use of the water, and that sometimes means water is wasted so it is not recorded as simply not used, the current appropriation water system encourages some water waste. Svaty sought to counter that by passing a law declaring that conservation of water was also a beneficial use.

That plan sank and kept sinking in the legislature, however, news reports are saying. One story noted this from a legislator: “Sen. Mark Taddiken, R-Clifton and chairman of the Senate Agriculture Committee, said some wealthy individual, corporation or municipality could purchase water rights and take it out of the system for decades.”

Southwest

CA: Frost water use debated

Frost is water; but water can also be used to protect crops from frost, especially highly sensitive crops such as wine grapes.

From a California Farm Bureau report on disputes over use of Russian River water in protection of grapes from frost:

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A government agency letter announcing plans to conduct unannounced, predawn inspections of farm properties marks the latest development in an ongoing controversy related to use of Russian River water to protect grapevines from frost.

Winegrape growers with vineyards along the river received the “access notification” letter, which warns farmers that the State Water Resources Control Board, National Marine Fisheries Service or state Department of Fish and Game may conduct the unannounced inspections unless the farmer sends formal notification in advance, denying permission.

The letter, signed by water board Deputy Director for Water Rights Victoria A. Whitney, states in part: “Because diversions for frost protection are weather-dependent and occur irregularly, mostly during early morning hours, initial contact prior to a site visit would be impracticable. Therefore, by this letter, you are being requested to provide reasonable access to your property. We will assume, unless informed otherwise, that you are allowing…access to your property.”

Devon Jones, executive director of the Mendocino County Farm Bureau, said she has been hearing an overwhelming negative reaction from farmers, who express concern about the potential dangers of such unannounced inspections in the dead of night.

“In terms of the property access letter, participants in the Russian River Frost Program are concerned with the liability issues that could arise if regulatory agencies perform unannounced visits during the early morning hours when frost events typically can occur,” Jones said. “We are recommending a cooperative approach with the regulatory agencies, but do not see the terms that the SWRCB put forth in the access letter as being a reasonable method for performing inspections.”

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Several growers have responded to the water board with letters denying access, while others have made use of a general access-denial letter drafted by the organizers of the Russian River Frost Program, including the Mendocino and Sonoma county Farm Bureaus.

Among other things, the letter points out that frost operations in the middle of the night are complex and can be unsafe.

“It is far too dangerous to have someone unfamiliar with my property show up unannounced in the middle of the night and invite themselves into my vineyard without creating a substantial risk of injury to themselves, employees, and property,” the response letter states. “During frost protection, the ground is wet and a wide variety of tools and equipment are in use. Not only does anyone not familiar with our particular vineyard run the risk of tripping, falling, damaging equipment or vines, or interfering with our operation, but the unexpected presence of a stranger in the vineyard can be very disconcerting for myself or my employees. Under these circumstances, what

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you are asking for creates liability concerns I am unwilling to accept.”

The response letter tells the water board that its request does not amount to “reasonable access,” but adds, “However, if you would like to conduct an inspection, please contact my designated agent or myself to make arrangements.”

Growers who would like assistance in submitting a denial letter to the SWRCB may contact the Farm Bureau offices in Mendocino and Sonoma counties.

Al White, viticulturalist at La Ribera Vineyard in Mendocino County, called the board’s access proposal “an opportunity for a major mess-up.”

“Somebody is going to get stuck, somebody is going to fall into the river. It is just not practical. It is a foolish way to approach it,” White said.

“It is unfortunate that it has come to this kind of confrontational approach because if there is anything that should be clear, it is that the grower community has come together around this frost water issue and the management of water and its impact on the streams and the other uses of that water,” he said.

The issue surfaced following a series of unusually frigid nights in the spring of 2008, when grape growers in the two counties used their irrigation systems to protect their vines from frost. Water diversions from the Russian River and its tributaries resulted in lowered flows that state biologists blamed for stranding fish.

Since that time, growers in the region, along with the Farm Bureaus in the two counties and other North Coast organizations, have formed a coalition to develop a cooperative approach to protect endangered salmon and steelhead, while also allowing for use of Russian River water for springtime frost protection.

Their comprehensive plan to accomplish this goal was presented to the SWRCB several months ago and has been discussed at a number of public meetings, during which the group presented detailed reports and statistics supporting the proposed solution. The plan, which has already been implemented, included construction of numerous off-stream storage ponds for water to use during periods of frost protection, as well as improved water flow measurements and communications among growers and water-regulating

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officials to prevent sudden and dramatic drops in water levels in the Russian River and its tributaries.

But the plan has not been adopted by the water board and has been met with some skepticism by its staff. It has asked the board to adopt strict water-use regulations that many area farmers call “draconian.”

A proposed regulation drafted by the water board staff was discussed at a series of three “working group” meetings put on by the board in February and March. Jones said the grower group has suggested revisions on a number of issues.

NV: Rights approval kicked back to state

A water right approval for General Moly Inc. mining operations in Eureka County was bounced back to state regulators who were told to do a more precise job this time of filling in objectors on the actual water conditions in the area.

General Moly, which is based in Lakewood, Colorado, was seeking 11,300 acre-feet per year for the Mount Hope molybdenum mine. The Nevada State engineer’s office had approved the request. The court said however, that objectors were not given the most recent available water modeling information, and should be before a final decision is made.

The company’s statement: The Court’s decision remands the water rights

applications back to the State Engineer to reconsider in a new hearing, a date for which has not been set.

The Court ruled that the Petitioners’ (Eureka County and certain farmers in the Diamond Valley) due process rights to a full and fair hearing were violated when the State Engineer considered and relied upon an updated version of the Company’s hydrology model that had not been presented to the Petitioners.

Bruce D. Hansen, Chief Executive Officer, said, “this procedural flaw is disappointing given the strong legal and technical findings by the State Engineer to determine that the Company’s water applications should be granted for the

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Mt. Hope project. The updated model referenced in the State Engineer’s decision had substantially the same conclusions as the model the petitioners had reviewed. With our final hydrology models being completed this week, all parties involved will now be reviewing a single, final model, so this procedural issue can be avoided moving forward.”

The Company anticipates the State Engineer will promptly schedule a new hearing, again grant the Company’s water rights applications, and does not believe the new hearing will impact the Mt. Hope construction or production time lines. The Company continues to believe it has every right to be granted access to water for the Mt. Hope project. The District Court’s decision is separate from and does not impact the Federal permitting process and the work associated with the Environmental Impact Statement.

Tim Arnold, Mt. Hope General Manager, said, “We are clearly disappointed that the State Engineer’s original ruling was not upheld. We will continue to work with the Commissioners of Eureka County and the farmers in Diamond Valley to find a solution to their opposition to our water applications. Our scientific studies continue to indicate that our water pumping in Kobeh Valley, 15 miles to the west of Diamond Valley, will have virtually no impact to their water table and we will continue to engage and educate all stakeholders on that issue. Additionally, we will continue to develop a comprehensive long-term monitoring and mitigation plan.”

• See http://www.generalmoly.com/index.php?option=com_content&view=article&id=69:042610-general-moly-announces-nevada-court-ruling&catid=1:news-releases&Itemid=49

AZ: Big Chino-Prescott bill signed

Arizona Governor Jan Brewer on April 26 signed a bill that explicitly lets the city of Prescott use groundwater from the Big Chino Aquifer, a major development for a city heavily reliant on groundwater.

Senate Bill 1445 provides an exemption from a 1980 law on groundwater which ordinarily bans interbasin transfers. It says that, “a city or town in the Prescott Active Management Area may withdraw and transport 8,068 acre-feet per year of groundwater.”

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The key additions to the statute were: 45-543. Transportation between sub-basins or away from an active

management area; damages; non-irrigation grandfathered right not associated with retired irrigated land; service area withdrawals; permit; exempt well

45-555. Transportation of groundwater withdrawn in Big Chino sub-basin of the Verde River groundwater basin to initial active management area; exception

By the time it was signed, the bill was not especially controversial. It followed years of discussion and resolution between Prescott and the Salt River Project, which manages much of the water in the area.

“We could go on for years litigating this issue, and in the end we wouldn’t have an answer about the (Upper Verde River) impacts” from Prescott’s Big Chino pumping, Greg Kornrumph, analyst for the project’s Water Rights and Contracts Division, told the Prescott Daily Courier on April 28.

CO: Ground water protection enacted

Colorado Governor Bill Ritter on April 9 signed Senate Bill 52, which is aimed at protecting users of ground water from challenges to their rights from surface water right holders.

The bill addresses most directly the state Ground Water Commission, overseer of eight basins along the eastern plains and the Front Range. The commission has had authority to dramatically alter the boundaries of the basin and remove it from the mapped basin if the area has no finally-permitted wells.

Such changes haven’t been a problem for ground water users up to now, but sponsor Senator Greg Brophy, R-Wray, warned that “the risk is a [surface] water user would sue and pull your well out and shut it down.” The bill would tend to stabilize the borders: “you will know the wells are safe and the banks who lend you money for the wells will know they are safe.” [see the Sterling Journal-Advocate, April 9]

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NV: New state engineer

Jason King, who has been acting state engineer for Nevada on and off since the fall of 2008, was named to the job permanently effective April 19. The engineer is the chief water official in the state of Nevada.

Allen Biaggi, director of the Nevada Department of Conservation and Natural Resources, made the announcement.

King has been Acting State Engineer in place of Tracy Taylor who has recently had health concerns. King’s appointment was made in consultation with Governor Jim Gibbons and Leo Drozdoff, who will be taking over as acting director of the department May 3, after Biaggi’s retirement.

“Because of ongoing health issues, Taylor will become a deputy state engineer as of today April 19, 2010,” Biaggi said. “I want to thank Tracy for his nearly four years of service as the State Engineer. He has guided the agency through some challenging times.”

Biaggi added: “Jason (King) has done an excellent job as acting State Engineer, and we appreciate the service of both Tracy and Jason during this time of transition.”

King is a registered professional engineer and has been with the Division of Water Resources for more than 19 years.

CO: SuperDitch prompts concerns

The Lower Arkansas Valley Super Ditch Company, a bargaining agent for irrigators seeking to lease water for temporary use, has drawn some more concern, this time from the Southeastern Colorado Water Conservancy District board which has filed opposition to a Super Ditch application Water Court 2.

A conservancy spokesman said that it has issues with “the use of winter water and the Fryingpan-Arkansas facilities.” That filing in opposition could signal the beginning of negotiations rather than an outright fight.

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Super Ditch was formed in 2008 as a cooperative effort: “Shareholders of six major ditch companies from Pueblo County to Kansas today incorporated the Lower Arkansas Valley Super Ditch Company. The so-called Super Ditch Company is actually a bargaining agent for irrigators who are interested in leasing water for temporary use by thirsty cities, water districts, and other water users while retaining water ownership and irrigation in the valley. John Schweitzer, an incorporator and board member stated that “incorporation of the Super Ditch is a major step by valley irrigators to work together for everyone’s benefit.” Leasing water is expected to be an attractive alternative to municipalities for drought proofing, drought recovery, ground water recharge, and insurance against interstate compact calls. Municipalities and water agencies from Pueblo to metropolitan Denver have expressed interest in leasing water from the Super Ditch Company. The company already has two letters of intent to lease a total of 15,000 acre-feet per year.”

A seventh participant later joined.

NM: Emergency water delivery granted

Water is low in New Mexico this year, and a water company has gotten an emergency allowance to use additional water in the Clovis area.

According to New Mexico American Water: On March 31, 2010, the New Mexico Office of State

Engineer approved an emergency authorization relating to New Mexico American Water’s application to combine water rights for wells producing potable water for the Clovis water system. New Mexico American Water filed the application on July 30, 2008 and anticipated the need for emergency authorization at that time in anticipation of possible water shortages in the Clovis area as a result of the depletion of the Ogallala Aquifer in eastern New Mexico.

New Mexico American Water has water rights for over 51,000 acre feet of water and uses about 7,100 acre feet annually to supply Clovis. Each of the 59 wells that currently supply water to Clovis has a set water right assigned to it. Some of these wells are no longer capable of pumping the full amount of the water right assigned to the

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well; other wells have more water capacity available, but are limited by the water rights currently assigned to that well.

“Ten years ago, it took 29 wells to supply Clovis. This summer it will take 62 wells to produce about the same amount of water,” said Kathy Wright, New Mexico American Water’s general manager. “Managing our water rights comprehensively will help offset the drop in the Ogallala.”

In order to operate these wells more efficiently and provide an adequate water supply for Clovis this summer and into the future, New Mexico American Water asked to combine its water rights. In the context of the application process NMAW created a pumping schedule which allows for a small change in pumping to 15 wells to meet the peak water demands but does not harm other well owners. This application and pumping schedule were reviewed extensively by the experts for the Office of the State Engineer who determined that allowing NMAW to pump its wells in accordance with the pumping schedule is not likely to impair existing water rights and has now issued emergency authorization.

“Some of our wells have more water rights than ‘wet’ water that they can produce; other wells are capable of producing more water but are limited by their water rights,” said Wright. “The OSE approval for combining water rights will allow us to manage our water rights and wellfield more efficiently and will help us combat water shortages this summer.”

Conservation is also critically important to reduce water demand during peak demand periods to ensure that we have an adequate water supply for our community. New Mexico American Water has worked with the City of Clovis to develop a water management ordinance and has created rebate programs and communications that help customers use less water. New Mexico American Water will launch its annual conservation campaign in the coming weeks to ask customers to follow the three-day-a-week watering schedule with odd numbered addresses watering on Tuesdays, Thursdays and Saturdays and even numbered addresses watering on Wednesdays, Fridays and Sundays. New Mexico American Water also encourages everyone in the community to take advantage of rebates to install water efficient toilets, clothes washers and landscaping.

“On a hot day, people in Clovis use about twice as much water as they normally would. This summer, it’s going to be

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a challenge to meet those high demands,” said Wright. “I’m asking customers to take advantage of our rebates to install appliances and landscaping that save water, follow our three day a week watering schedule, and use water wisely.”

New Mexico American Water, a wholly owned subsidiary of American Water (NYSE: AWK), is the largest investor-owned water utility in the state, providing high-quality and reliable water and related services to approximately 60,000 people.

Founded in 1886, American Water is the largest investor-owned U.S. water and wastewater utility company. With headquarters in Voorhees, N.J., the company employs more than 7,000 professionals who provide drinking water, wastewater and other related services to approximately 16 million people in 35 states, as well as Ontario and Manitoba, Canada.

• More information can be found by visiting www.amwater.com.

UT: Holy Cross pact reached

Water rights in the Eagle River basin in Colorado have been fought over for 15 years, but a key – and maybe final – settlement – has been reached over many of them, between the cities of Colorado Springs and Aurora and Eagle County.

From a statement by Eagle County Attorney Bryan Treu: After years of litigation and months of recent

negotiations, Eagle County and the cities of Aurora and Colorado Springs reached a settlement in a 1995 Water Court case involving the cities’ proposal for development of a groundwater project at Camp Hale and a surface water reservoir in lower Homestake Creek, which would be used for future water diversions to the Front Range. Origins of the dispute date back to the 1970s; the settlement ends a protracted legal dispute over the Homestake II project water rights.

As part of the settlement, the cities have agreed to abandon any additional diversion points within the Holy Cross Wilderness Area. Additionally, the settlement greatly reduces the potential size of both the Camp Hale groundwater project and the proposed reservoir at the mouth of Homestake Creek. Water rights that the cities

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obtain through the settlement will be dedicated to cooperative development under the 1998 Eagle River Memorandum of Understanding (MOU), an agreement designed to cap the amount of trans-mountain diversions by the cities from the Eagle River basin.

Aurora and Colorado Springs have committed to working collaboratively with Western Slope water providers, including the Eagle River Water and Sanitation District (ERWSD) and the Upper Eagle Regional Water Authority, to develop mutually beneficial projects. “The cities agreeing to forever abandon additional water rights within the wilderness area is significant. Eagle County’s renewed focus to work through tough issues over the past few months to settle a 15-year-old case provides a great public benefit by protecting the Holy Cross Wilderness Area and our watershed,” said Bob Warner, ERWSD Board Chairman.

Much of the impetus for the settlement came from current Aurora Mayor Ed Tauer, whose father was mayor of Aurora during the contentious Homestake II hearings in the late 1980s. Mayor Tauer persisted in approaching Eagle County Board of Commissioners for a common sense discussion outside of the legal battle. It was recognized that such a discussion would be a logical extension of the collaborative efforts that eventually led to the Eagle River MOU. “What started as a battle has become Colorado’s best east-west partnership,” said Tauer. “It turns out that through a little listening we can preserve wild areas, support the river and help cities. The Eagle Valley team is a model for our state.”

The Homestake Partners’ water rights in the upper Eagle River basin were first developed by John Elliot in the 1940s and 50s, who envisioned water diversions from the mountains to the faster growing Front Range. In 1952, Elliot sold those rights to the cities of Aurora and Colorado Springs who subsequently developed several surface diversions and conveyances, including the Homestake Reservoir and the trans-mountain Homestake Tunnel. However, the cities did not develop all of their decreed rights before the Holy Cross Wilderness Area was established 1980.

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CA: Water project delivery at 30%

Citing April’s wintry Sierra storms, the California Department of Water Resources on April 23 increased its 2010 allocation of State Water Project deliveries to 30 percent.

“The spring storms have been good to California’s snowpack, allowing us to increase our water deliveries to communities, farms and businesses this year,” said DWR Director Mark Cowin. “Still, three years of drought, low reservoir storage and regulatory limits on Delta pumping to protect fish keep our allocations far below average and underscore the need for ongoing conservation across the state.”

The SWP allocation had been set at 20 percent of contractors’ requests earlier in April. The initial 2010 allocation estimate, made back in December 2009, was 5 percent. That projection rose incrementally as snowpack accumulated during winter and early spring. Later in May, DWR expects to make a final allocation announcement.

Electronic snow surveys indicate that statewide, water content in the mountain snowpack is 132% of normal for the date.

A final manual snow survey will be conducted on April 30.

Lake Oroville in Butte County, the key Northern California storage reservoir for the State Water Project, remains low, at 55% of capacity, recovering slowly after three consecutive dry years.

Fishery agency restrictions on Delta pumping continue to limit amounts of water that can be delivered to SWP contractors serving the Bay Area, San Joaquin Valley, Central Coast and Southern California.

In 2009, the SWP delivered 40% of the amount requested by the 29 public agencies with long-term contracts to buy SWP water. The SWP contractors deliver water to about 25 million Californians and 750,000 acres of irrigated farmland.

See http://cdec.water.ca.gov/cgi-progs/reservoirs/RES

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UT: Water access restriction bill signed

Utah Governor Gary Herbert on March 31 signed a measure, House Bill141 that could limit recreation use, including fishing, of some water ways in the state. Though not strictly a water rights measure, it could have the effect of limiting some types of water use.

The measure became intensely controversial around the state among various types of user groups, property owners on one hand and sportsmen on the other.

Herbert’s statement: “I am signing HB141 because we need to begin the

process of addressing the unfortunate gulf between outdoor recreationalists and private property owners. I recognize the potential conflict between private property rights and the right of public access to Utah’s waterways. Today, I pledge my commitment to work with both sides over the coming year to improve opportunities and arrive at a workable solution.”

“My hope is that this bill puts both sides of the equation on equal footing and allows the conversation to continue in a productive fashion. While this bill largely puts the state in the position it was in prior to a 2008 Utah Supreme Court ruling on the matter, I realize that this issue is not resolved. I have tasked Ted Wilson, as head of Governor’s Council on Balanced Resources, to represent my administration and interact with the legislative task force established through SB281. As Governor, I will also engage personally to find a common-sense solution.”

“In the meantime, I am asking property owners to join in the discussions, to avoid conflict with anglers and to be generous in allowing access as we move forward. I am also asking anglers and other recreationalists to respect the law, to follow the proclamations of the Division of Wildlife Services and to avoid conflict with land owners.”

• See http://le.utah.gov/~2010/htmdoc/hbillhtm/hb0141.htm and http://www.utah.gov/governor/news_media/article.html?article=3087

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Northwest

WA: Suit challenges water wastes

The Okanogan Wilderness League filed a lawsuit seeking to compel the Methow Valley Irrigation District to stop wasting water it diverts from the Methow and Twisp rivers. The lawsuit, filed in the Okanogan Superior Court, seeks judicial enforcement of a 2003 Department of Ecology order that requires MVID to increase the efficiency of its water delivery system by upgrading its canals and installing water meters.

“The time has come to drag MVID out of the 19th century and into the 21st,” said Lee Bernheisel, board member of OWL. “MVID’s wasteful diversions from the Twisp and Methow rivers are harming endangered salmon and other water right holders. This harm needs to stop.”

MVID’s system is one of the oldest and leakiest irrigation systems in Washington. In 2002, the Washington Department of Ecology ordered MVID to improve its system efficiency after determining that MVID loses 80% or more of its water before it arrives at farm head gates. The Department of Ecology issued a second and more stringent order in 2003 requiring MVID to reduce its water diversions from the Twisp River to a maximum of 11 cfs, reduce diversions from the Methow River to a maximum of 20 cfs, and install meters to determine how much water MVID receives from a private irrigation ditch.

Instead of working to implement Ecology’s 2002 and 2003 orders, MVID has spent the last several years attempting to invalidate those orders through litigation. MVID has lost in every venue—most recently the Okanogan Superior Court affirmed the validity of the 2003 order and rejected MVID’s attempts to halt implementation of the order. MVID’s appeal of that decision is currently pending before the Court of Appeals in Spokane.

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“Our civil enforcement suit is intended to finally obtain enforcement of any order that was issued seven years ago,” said John Arum, attorney with Ziontz, Chestnut, Varley, Berley & Slonim, a Seattle law firm that represents OWL. “During this time, other users of water, including instream flows for endangered fish, have been deprived of water that is rightfully theirs.”

Over the years, MVID has had numerous opportunities to improve its system efficiency and reduce its water waste. For example, in the 1990s, MVID and Ecology devised a $4.7 million publicly-funded plan to update MVID’s irrigation system that would have dramatically improved its efficiency. A 1997 alternative, proposed by the Bonneville Power Authority, would have converted MVID patrons to ground water delivery that would have been 100% efficient and cost $2.6 million. However, in 2000, MVID abandoned its efficiency plans, leading Ecology to issue orders in 2002 and 2003 that are the subject of the lawsuit. Since that time, more than $7 million dollars of public funds have been spent on district upgrades with virtually no increase in water use efficiency.

“After 100 years of wasting water, 25 years of consultant studies, eight years of enforcement action, and six agency and court decisions, it is time for MVID to face up to its obligations,” said Rachael Paschal Osborn of the Center for Environmental Law & Policy and attorney for OWL.

OWL filed the suit under a little-known provision of the state Administrative Procedure Act that allows parties with an interest in a court order to seek court assistance in enforcement. The civil enforcement suit also names the Department of Ecology as a respondent.

[see the Center for Environmental Law & Policy, April 14]

ID: Idaho Power challenge (mostly) resolved

SRBA Judge pro tem John Melanson has agreed for the most part to a settlement between Idaho Power Company, the state of Idaho and other parties over the meaning of many of the terms of the original Swan Falls settlement.

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That case goes back to May 2007, when Idaho Power challenged the more commonly held meaning of the agreement from 1984, which was the original impetus for the Snake River Basin Adjudication.

Talks commenced, mainly between Idaho Power and state attorneys, over language both could agree to. In June 2009 both filed motions on proposed agreements, and negotiations centered around them, and a number of conditions were agreed to. An oral argument was held in February. Questions considered by the court included:

• Whether language in Provision 1 regarding “future beneficial uses under water rights” should be changed to “any other water right”

• Whether this Court should set a hearing schedule to determine whether the literal application of paragraph 7(D) of the Swan Falls Agreement would create a latent ambiguity and result in unintended “rebound calls”

• Whether language in Provision 1 regarding “future beneficial uses” should be clarified to include a date certain of October 1, 1984, instead of October 25, 1984.

• Whether proposed language for Other Provision 4 and Other Provision 5 should be revised to include valid beneficial use rights first claimed in the SRBA, in order to avoid “rebound calls”.

Melanson did not resolve everything in his March 25 decision; pieces of it were consolidated with Basin Wide Issue 13, to be settled separately. But he did approve most of the state’s and Idaho Power’s joint motions.

• See the Snake River Basin Adjudication Digest, May 2010.

MT: Rehberg presses BuRec on projects

Montana’s Congressman, Denny Rehberg, pressed the Bureau of Reclamation for information pertaining to their priorities and funding of Montana water projects. The Bureau testified before the House Energy and Water Appropriations Subcommittee, on which Rehberg sits.

“For tens of thousands of Montanans, water is the key to economic prosperity, job creation and a better quality of life

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that some in more urban areas take for granted,” said Rehberg. “It’s my job to ensure Montana gets the biggest bang for its buck. Unfortunately, this budget request makes Montana a donor state, and it’s my job to ask tough questions and hold Washington bureaucrats accountable for their decisions.”

At the hearing, Rehberg asked why the Bureau requested only $3 million for Montana’s rural water projects in Fiscal Year 2011 despite Montanans having paid roughly $50 million into the Reclamation Fund in previous years. He asked how the Bureau prioritized projects and whether the budget request reflects the Bureau’s priorities.

Rehberg also asked how long they expected it to take to finish the Rocky Boy’s/North Central and Fort Peck/Dry Prairie projects at the current rate of $1-2 million a year, emphasizing that a more rapid investment in authorized projects would be preferable.

OR: Nestle finds opposition on Gorge water

A proposal by Nestle Waters Pacific Northwest to bottle some water in the Colombia River Gorge has drawn sharp opposition from Oregon activists.

The firm has said on its web site that, “We are currently investigating the feasibility of opening a spring water bottling facility in this region to serve local markets for our products. Currently, most of our bottled spring water is shipped by truck to this area from California or British Columbia. We think it makes good environmental and economic sense to locate a bottling facility closer to our customers.”

It held a hearing on the subject at the town of Cascade Locks on March 11.

That has not diminished the opposition, however. The group Food & Water Watch has obtained so far 4,377 signatures on petitions opposed to the proposal.

The local group delivered this statement at the end of March:

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Keep Nestle Out of the Gorge, a coalition of 15 environmental and social justice organizations led by the national consumer advocacy group Food & Water Watch, today launched a coordinated campaign to prevent Nestle Waters North America from opening a water bottling facility in Cascade Locks. The groups delivered some 4,000 petition signatures against the facility to Roy Elicker, Director of the Oregon Department of Fish and Wildlife (ODFW), whose department will play a crucial role in determining whether the deal can move forward.

Nestle has asked ODFW to approve an agreement that would exchange part of ODFW’s water rights at Oxbow Springs with an equivalent amount of well water from the city of Cascade Locks. Nestle would then buy both the city’s well and spring water to bottle under its Pure Life and Arrowhead labels. While the financial details of the deal are not clear, Nestle has paid an average of $.00225 per gallon in other areas where it has brokered similar deals. A gallon of Nestle’s spring water sold in single-serve containers sells for $5.30.

While Nestle has cited the creation of 53 new jobs as a potential outcome of the proposed water bottling facility, some question the quality and safety of those positions. A report released last year by Food & Water Watch found that bottled water workers earn $10,000 less than their counterparts in other manufacturing jobs, and that their injury rate is 50 percent higher.

“Cascade Locks is just Nestle’s latest stop in its trek across America to pump precious water resources from rural communities,” said Julia DeGraw, northwest organizer for Food & Water Watch. “Preying on local economic challenges, Nestle promises new jobs in exchange for access to local water supplies. But few employment opportunities ever materialize from such transactions, and those that do pay very little, and endanger worker safety.”

In this agreement, Nestle would pump an average of 13.88 million gallons of water a month, a proposition that worries many. “Nestle has a poor track record in similar communities across the nation, said Brett VandenHeuvel, executive director of Columbia Riverkeeper. “We’re concerned that Nestle may harm springs in the Gorge.”

Keep Nestle out of the Gorge also opposes the plant because it would increase traffic and pollution to an ecologically sensitive area and could endanger local wildlife.

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A water bottling facility would introduce up to 210 truck trips a day to rural roads, potentially damaging the Gorge’s scenery and negatively affecting tourism in Cascade Locks.

WA: Applications should run faster

Under terms of a bill signed into law on April 1, the Washington Department of Ecology may be able to process their water right applications more rapidly.

Senate Bill 6267, was co-sponsored by Senator Jim Honeyford, R-Sunnyside, and has a House version co-sponsored by Representative Bruce Chandler, R-Granger. The legislators said that when the law goes into effect in July, it will result in more water applications being processed and encourage the department to contract with the private sector to complete some analysis and technical work on the applications.

Chandler said it was important to note the bill was requested by the Department of Ecology so the agency could process water rights applications more quickly. The 15th District lawmaker worked across party lines to put forward the legislation and amend it through the process.

“I appreciate the governor signing this bill, it will mean a lot for irrigators and municipal authorities to get an answer back sooner so they can proceed forward,” Chandler said. “This final product is probably the biggest win in the fight over water this year.”

Chandler voted against a change to the bill in the House that would have placed exorbitant fees on applicants, without a guarantee that the backlog of water rights applications would be shortened or that anyone would receive water. The Senate ended up stripping the amendment added in the House. Those who do not wish to pay the fee will not lose their place in line for processing under the new law.

“We have applicants who have been waiting for a decision for decades,” Chandler said. “A simple increase in funding for the department has only led to the shifting of resources away from water rights. The legislation signed into law today will ensure applicants receive something for their

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money and the department can sustain staffing for the water program to expedite those applications.”

The governor vetoed two sections that would have allowed well relocation for ground water rights already issued by the agency. Wells occasionally need to be moved within a quarter mile from the original well needing extensive repair or when ground water is compromised. Those sections vetoed would have codified the practice.

Despite the section vetoes, Chandler said the legislation is still a great move forward.

WA: Everett looks at, away from bottler

The city council and other residents of Everett, Washington are taking a close look at a proposal from bottler Tethys Enterprises, which is asking for the use of some of the city’s water in some of its beverage products.

Top Tethys executive Steve Winter, who lives in nearby Arlington, said that the effort would provide jobs (possibly 1,000 or so) and would be environmentally friendly. The business would to seek to build a 1 million-square-foot “green” plant, where it would provide teas and other products (not bottled water as such).

Some Everett critics of the idea note that the proposed contract would run 30 years and cut into the city’s water support through that time. And they note that some of the company’s proposed operations practices could be changed depending on business and marketing conditions in the future.

Such concerns eventually led Everett Mayor Ray Stephanson to order city attorneys to back away from work on a planned contract with Tethys.

In a letter to Winter, Stephanson wrote, “As a steward of the City’s water resource, I have had questions about whether your proposal truly promotes the City’s long-term best interests. My concerns have been heightened by your most recent refusal to accept a contractual provision regarding jobs.”

[see Everett (WA) Herald, April 13, and April 14]

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International

Canada: Native consult rules clarified The Alberta Court of Appeal has turned back a challenge

to the province from the Tsuu T’ina Nation and Samson Cree Nation, which argued that the province had not adequately consulted them before developing a new water management (and water rights) plan.

The plan, okayed in August 2006, covered the South Saskatchewan River Basin.

This is not the only lawsuit growing out of the water plan; another is proceeding as well in another court.

[see the Calgary (AB) Herald, April 29]

Egypt: Holding off on Nile signature

Sounding a lot like some American states reluctant to sign water agreements, the government of Egypt – through Egyptian Minister of Water Resources and Irrigation Mohammed Nassr Eddin Allam – said on April 19 his country will not be bound by any compact limiting its rights to the River Nile.

A group of African countries in the Nile basin have developed a Cooperative Framework Agreement of the Nile Basin Countries, which would seek to govern use of the river water. Egypt, the most downstream of the countries, is one of those most impacted.

The Egyptian minister said, however, that any such deal “will not be binding to Egypt and will not have a legal impact to its right in water.”

The Ethiopian Reporter said, in an article (“Is the Nile Cooperation Framework Agreement doomed to be stillborn?“) noting the background of the agreement: “The

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only agreement that has been reached to date on the use of the Nile is the 1959 accord signed between Egypt and Sudan at the behest of their then colonial master England. The agreement not only excludes the other riparian countries, which are the river’s source and contribute the majority of its waters, but also provides that the exclusive beneficiaries of the Nile are the two countries and sets out the amount of water each of them can use as well as the purpose to which they can put the river. The NBI was signed precisely because the agreement was said to be unfair and not legally binding on the other basin countries. It was right and indeed timely that a consensus was reached by the nine basin countries, excluding Eritrea, namely Ethiopia, Kenya, Uganda, Tanzania, Rwanda, Burundi, the Democratic Republic of Congo, Sudan and Egypt, to put in place a new cooperation framework agreement.”

India/Pakistan: Pushing the issue

Reports from India suggest that nation’s government may be about to press Pakistan over its claims to water in the two nations’ borderlands.

The Economic Times reported on April 6 that, “During foreign secretary-level talks in February, Pakistan had handed over a non-paper on water, listing a series of complaints and suggestions. India is now expected to respond to it. An initial study on Pakistan’s non-paper has concluded that the issues raised by Pakistan are `frivolous.’ It is also felt that the technical issues—which include timely sharing of data and information—could be easily resolved within the Indus Water Commission. The Pakistan government had started highlighting water as a major concern ahead of the foreign secretary-level engagement and this was taken up by elements like Lashkar founder Hafiz Saeed in what is seen here as an attempt to whip up sentiments against India.”

No specific timeline was indicated.

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Meetings/Conferences April 14-16 Central Valley Water Tour, Water

Education Foundation. Based at Bakersfield. See www.watereducation.org

May 16 The Sustainable Operations Summit. San Antonio. Texas.

June 3 Water Matters! Global Water Conference. Pittsburgh, Pennsylvania. http://www.pittsburghwed.com/watermatters

August 23-27 2010 Watershed Management Conference: "Innovations in Watershed Management Under Land Use and Climate Change" Madison, Wisconsin.

THE NATIONAL WATER RIGHTS DIGEST To subscribe: � write to Ridenbaugh Press, P.O. Box 834; Carlton, OR 97111. � call us at (503-852-0010 � e-mail stapilus@ridenbaugh.com � http://www.ridenbaugh.com/nwrd Subscription rates: � Print copy, delivered by first class mail -- $129 per year. � Electronic copy by e-mail through the Internet -- $99 per year. Publisher: Randy Stapilus • Editor: Linda Watkins © 2010 Ridenbaugh Press. The Digest is published monthly.