Republican compact agreement gives full credit for Nebraska’s river augmentation projects — The Kearney Hub

October 25, 2014

Republican River Basin by District

Republican River Basin by District


From The Kearney Hub:

An agreement approved Wednesday by the Republican River Compact Administration gives Nebraska 100 percent credit for groundwater that natural resources districts are using to augment river flows for compact compliance. It also ensures that water stored in Harlan County Reservoir for compliance won’t go to waste, according to a press release from Upper Republican NRD officials in Imperial.

They said it is hoped the agreement will lead to a similar deal for 2015 and to a new, positive working relationship between Kansas and Nebraska that benefits water users in both states.

“The resolution approved by the RRCA allows water now being held in Harlan County Reservoir to be released to Kansas during the 2015 irrigation season when it can be beneficially used, without compromising Nebraska’s ability to maintain compact compliance,” Nebraska Department of Natural Resources Deputy Director Jim Schneider said. He chaired the meeting in Denver. “The ability of the states to work together in resolving these issues is a significant step forward.”

There are two augmentation projects: Rock Creek Augmentation Project in Dundy County operated by the URNRD and Nebraska Cooperative Republican Platte Enhancement project in Lincoln County operated by the Upper, Middle and Lower Republican NRDs, along with the Twin Platte NRD.

Combined, the projects will add about 63,500 acre-feet of water to the Republican River system for 2014. Without the agreement, Nebraska’s credit would have been 37,000 a-f.

Nebraska officials have said that without the augmentation projects to ensure adequate flows into Kansas for compact compliance an alternative could be shutting down irrigation on more than 300,000 crop acres in Nebraska.

URNRD General Manager Jasper Fanning said Wednesday’s agreement “should provide Nebraskans assurance that water being added to streams in 2014 effectively prevented a shutdown of more than 300,000 irrigated acres in the basin this year and that we aren’t being required to do more than what we should under the agreement.”

He said it benefits water users in both Kansas and Nebraska…

The agreement approved by representatives of the compact states, Colorado, Nebraska and Kansas, means Kansas water users could get 20,000-25,000 a-f next year and the balance could be used by Nebraska Bostwick Irrigation District irrigators downstream from Harlan County Dam.

The agreement follows last week’s oral arguments before the U.S. Supreme Court on a special master’s recommendation on penalties for Nebraska’s overuse of compact water in 2005 and 2006…

A final decision by the court is expected by the end of June.

More Republican River Basin coverage here.


Republican River Basin: “You want more than damages” — Antonin Scalia

October 15, 2014
Republican River Basin by District

Republican River Basin by District

From Omaha World-Herald (Joseph Morton):

The court heard oral arguments Tuesday in the latest twist of the 1943 Republican River Compact signed by Kansas, Nebraska and Colorado. The case pits Nebraska against Kansas — not only over the amount of money Nebraska owes, but also to set the ground rules for what are sure to be future battles over the use of a critical but stressed resource.

Justices had sharp questions for both sides. They expressed skepticism about Kansas’ claim for higher damages as well as Nebraska’s desire to rewrite the formula used to calculate water usage.

As is typical in such interstate disputes, a special master earlier had reviewed the case for the court. He found that Nebraska owes $5.5 million — $3.7 million in basic damages with an additional $1.8 million attributed to the gains made by Nebraska farmers as a result of the violations. Nebraska is challenging the extra $1.8 million penalty.

Kansas Solicitor General Stephen McAllister, however, urged the justices to go significantly higher in penalizing Nebraska, contending that Nebraska’s actual gains were much larger than $3.7 million, or even $5.5 million. If Nebraska winds up with more in benefits than it is penalized for the excess water, he said, it will have no incentive to work hard at compliance in a future drought.
Justice Antonin Scalia focused on the extra penalty that Kansas is seeking.

“You want more than damages,” Scalia told McAllister. “You want to say, ‘I not only want to receive what it cost me, what your violation cost me, but I want in addition to receive any benefits that you got from the violation.’ … That’s not a normal contract remedy.”

Justice Samuel Alito pointed out that Nebraska’s violations of the compact had been ruled unintentional. But McAllister said Nebraska knew it was exposing Kansas to risk and described it as “more than negligent” on Nebraska’s part.

“These were massive violations on Nebraska’s part, knowing they were in trouble and just really not taking any kind of adequate steps,” McAllister said.

Nebraska Chief Deputy Attorney General David Cookson defended Nebraska’s efforts to stay in compliance
with the compact and to mitigate the situation once the problems were revealed. Still, he faced questions from Justices Elena Kagan and Ruth Bader Ginsburg, both of whom cited the special master’s findings that while Nebraska’s violations were not an intentional breach, the state should have seen what was coming.

“The special master also said essentially … that you were a conscious wrongdoer, that you failed to act, refused to act in the face of a known risk,” Kagan said to Cookson. She said the special master found that “unless there was some very lucky fortuitous thing that happened, the quite foreseeable effect of your actions was going to be that Kansas didn’t have enough water.”

Cookson said Nebraska does not agree with the findings about what Nebraska should have known or the idea that it took no action.

“Nebraska seized control of its consumptive use in 2002 while it was still negotiating the compact, and through 2006 reduced its pumping (by 35 percent),” Cookson said. “At the same time, however, Nebraska could not reasonably foresee that its allocations were going to fall even below the historical low period of record in this basin, which was the Dust Bowl.”

Nebraska also has asked the court to go along with the special master’s finding that the formula for calculating water usage should be reworked because it is unfair. Chief Justice John Roberts expressed skepticism about taking such a step, however.

“The idea of a special master or this court changing the nature of that agreement is a pretty radical one,” Roberts said.

The court is expected to rule before the end of the year.

After the arguments, Cookson told The World-Herald that it’s impossible to gather from the court’s questions which way the justices are leaning. They often play devil’s advocate and push harder on the side they ultimately agree with in order to sharpen the arguments in their favor.

“The court was very engaged,” Cookson said. “They asked questions that pushed the boundaries of both sides’ arguments.”

More Republican River Basin coverage here.


Twin Lakes Reservoir and Canal Co, Aspen and the #ColoradoRiver District reach deal

October 15, 2014

From the Aspen Daily News (Brent Gardner-Smith):

The city of Aspen and Front Range water interests have reached a compromise 20 years in the making that allows more water to be sent east when the spring runoff is plentiful, in exchange for bolstering flows when the Roaring Fork River is running low in the fall. The deal is between the Twin Lakes Reservoir and Canal Co., which operates transbasin diversion tunnels underneath Independence Pass, and the city of Aspen and the Colorado River District, which works to protect water rights on the Western Slope.

The deal, which has its roots in a 1994 water court application from Twin Lakes that sought to increase diversions during the runoff in high-snowpack years. It will leave 40 acre-feet of water in Grizzly Reservoir when Twin Lakes exercises its rights under the 1994 proposal. That water will be stored in the 500-acre-foot reservoir and released into the Roaring Fork for about three weeks in late summer, when seasonal flows are at their lowest. The water must be called for and released in the same year it was stored.

Grizzly Reservoir, located about 8 miles up Lincoln Creek Road near the Continental Divide, is a component of the transbasin-diversion system. A tunnel underneath the reservoir channels water underneath the mountain to the south fork of Lake Creek in the Arkansas River basin, on the other side of the pass.

Additionally, under the deal, the River District will have the right to store 200 acre-feet of water in Grizzly Reservoir and can call for up to 150 acre feet of that water in a year. Importantly, that 200 acre-feet can be stored long-term in the reservoir until it is called for by the River District, which manages water rights across the Western Slope.

Another 600 acre-feet will be provided to the River District for seasonal storage in Twin Lakes Reservoir, also on the east side of Independence Pass. The district will then trade and exchange that water with various entities, which could lead to more water staying on the Western Slope that would otherwise be diverted through other transbasin tunnels.

Twin Lakes diverts an average of 46,000 acre-feet a year from the headwaters of the Roaring Fork and sends it to Colorado Springs and other Front Range cities. The city of Colorado Springs owns 55 percent of the shares in the Twin Lakes Reservoir and Canal Co., entities in Pueblo own 23 percent, entities in Pueblo West own 12 percent, and Aurora owns 5 percent.

Aspen and the River District intend to cooperatively use the stored water in Grizzly Reservoir to boost late-summer flows in the Roaring Fork as it winds through Aspen proper.

Water already flowing
The stretch of the Roaring Fork River below the Salvation Ditch on Stillwater Drive typically runs below environmentally sound flows each year for about eight weeks, according to city officials. And given that this spring saw a high run-off, the three parties to the agreement managed some water this year as if the deal was already signed.

“At the close of the current water year (which ended the last day of September), Twin Lakes started making releases of some of the water stored for the River District, followed by release of the 40 acre-feet, as directed by Aspen and the River District,” Phil Overeynder, a special projects engineer for the city, wrote in an Oct. 3 memo to city council. “These releases had the effect of increasing flows in the Roaring Fork through the Aspen reach by approximately 20 percent and will last for approximately a three-week period at the end of the lowest flow conditions of the year.”

Overeynder added that “both Aspen and the River District believe that this agreement, while not perfect, is of real and meaningful benefit to the Roaring Fork.”

Aspen City Council approved the agreement on its consent calendar during a regular council meeting on Monday. The agreement is on the River District’s Tuesday meeting agenda, and Twin Lakes approved it last month.

The deal still needs to be accepted by Pitkin County and the Salvation Ditch Co. in order to satisfy all of the details of the water court’s 2001 approval of the 1994 water rights application.

Junior and senior rights
In addition to its junior 1994 water right, Twin Lakes also holds a senior 1936 water right that allows it to divert up to 68,000 acre-feet in a single year and up to 570,000 acre-feet in a 10-year period.

Originally, the water diverted by Twin Lakes was used to grow sugar beets to make sugar, but it is now primarily used to meet the needs of people living on the Front Range.

The 1936 water right still has some lingering restrictions in high-water years, according to Kevin Lusk, an engineer with Colorado Springs Utilities who serves as the president of the board of the private Twin Lakes Reservoir and Canal Co. Under its 1936 right, when there is plenty of water in the Arkansas River and the Twin Lakes Reservoir is full, Twin Lakes is not allowed to divert water, even though it is physically there to divert, Lusk explained. So in 1994 it filed in water court for a new water right without the same restrictions so it could divert more water to the east. It was dubbed the “Twin Junior,” water right.

The city of Aspen and the River District objected in court to the “Twin Junior” and the agreement approved Monday is a long-delayed outcome of the case.

Aspen claimed that if Twin Lakes diverted more water in big-water years, the Roaring Fork wouldn’t enjoy the benefits of the high water, including flooding the Stillwater section and replenishing groundwater supplies. That process, the city argued, helps the river in dry times.

“We don’t necessarily agree with the theory behind it,” Lusk said of the city’s claim, but added that Twin Lakes agreed to the deal as part of settlement negotiations.

And since 2014 turned out to be a high-water year, Twin Lakes exercised its right to divert water under its 1994 Twin Junior right, and worked cooperatively with Aspen and the River District to release 40-acre feet of “mitigation water” as described in the pending deal.

The new agreement between the city, Twin Lakes and the River District is in addition to another working arrangement between Twin Lakes and Aspen related to the Fryingpan-Arkansas diversion project, which diverts water from the headwaters of the Fryingpan River.

That agreement provides 3,000 acre-feet of water each year to be released by Twin Lakes into the main stem of the Roaring Fork beneath a dam near Lost Man Campground, normally at a rate of 3 to 4 cubic feet per second.

More Twin Lakes coverage here.


The Fountain Creek District launches series of meetings to iron out rights protection with flood mitigation

September 29, 2014
Fountain Creek Watershed

Fountain Creek Watershed

From The Pueblo Chieftain (Chris Woodka):

The question of how flood control projects on Fountain Creek can be built without harming water rights will be taken up next month in the heart of farm country.

The Fountain Creek Watershed Flood Control and Greenway District will host the first of a series of meetings to discuss the issue during the winter water meeting set for Oct. 17 at Otero Junior College in La Junta.

The winter water meeting will be hosted by the Southeastern Colorado Water Conservancy District and will bring together some of the largest ditch companies east of Pueblo.

The group determines how a court-decreed program that allows farmers to store water in Lake Pueblo or ditch company reservoirs outside the growing season will operate.

That’s similar to the issue at hand on Fountain Creek, where flood control dams have been proposed, primarily to protect property in Pueblo.

At the July meeting of the Arkansas Basin Roundtable, a grant that proposed to look at the feasibility of Fountain Creek dams was rejected out of hand because several farmers objected to altering water rights to accommodate the dams.

They argued that junior water rights would be injured by such storage.

The timed release of water at more useful times in programs such as the winter water program could actually enhance water rights, however. Some have said this is possible with flood control dams.

In fact, the Denver Urban Drainage District is attempting to work through the same issue, Executive Director Larry Small told the board.

“We need to make it clear we have no intention of harming anyone’s water rights,” Pueblo County Commissioner Terry Hart said.

Several other meetings are planned by the Fountain Creek district to determine if flood control can be done in a way that keeps junior rights whole.

Meanwhile, the district is starting to prioritize spending prior to Colorado Springs’ $50 million payment as part of the Southern Delivery System. Here’s a report from Chris Woodka writing for The Pueblo Chieftain:

A district formed to improve Fountain Creek wants to start planning how it will use $50 million in funding that will begin arriving when the Southern Delivery System pipeline comes on line.

“We have to get an idea of what our priorities are before a dime arrives,” said Pueblo County Commissioner Terry Hart, a member of the Fountain Creek Watershed Flood Control and Greenway District board.

The $50 million will be paid to the district over five years by Colorado Springs Utilities as part of its 1041 agreement with Pueblo County. The money is for building flood control projects that primarily benefit Pueblo, such as a dam or series of dams.

SDS is projected to be fully permitted and online as soon as 2016, so the checks could begin coming in early 2017.

The district does not want to be put in a position of having to directly spend the money, but wants to use it to leverage funding from other sources.

“The projects identified so far exceed $100 million,” Hart said. “There could be even more as we branch out of the core area. We need to find the best ways to leverage other grants.”

Hart asked the board to form a committee specifically to look at how the money would be spent. It would include representatives from Pueblo County, the district and Utilities.

That conversation comes even as the district watches the progress of a stormwater vote in El Paso County this November and sets its budget for next year.

The vote will determine whether Colorado Springs and its neighbors will agree to fund stormwater improvements to the tune of $39 million annually beginning in 2016. That would satisfy other requirements of the 1041 agreement.

The district also is looking at whether its own budget could be paid with advance interest payments from Colorado Springs Utilities or if it’s time to pass the hat again among member governments.

At the meeting, Hart noted that the district is relying heavily on voluntary contributions and must start looking at its real operating costs if it is to become sustainable.

Finally, water quality is a concern and responsibility on Fountain Creek as well. Here’s a report from Chris Woodka writing for The Pueblo Chieftain:

While the focus lately has been on reining in water on Fountain Creek, the quality of that water is important too.

“We have a statutory duty to clean up the Fountain Creek watershed,” said Pueblo County Commissioner Terry Hart Friday at the meeting of the Fountain Creek Watershed Flood Control and Greenway District. “There are significant problems that we still don’t know enough about.”

So the board caught up on the science of water quality from Del Nimmo and Scott Herrmann, who have spent years studying water quality on Fountain Creek, the Arkansas River and Lake Pueblo.

The three are interconnected, Nimmo explained.

“We have tremendous resources and they are all connected,” Nimmo said. “They are tied to the reservoir.”

Lesson 1: Invasive species in Lake Pueblo will have more opportunity to spread to Fountain Creek and reservoirs in Pueblo County when the Southern Delivery System pipeline is completed, Herrmann explained.

Lesson 2: Mercury has accumulated in the water and fish in the headwater areas of Fountain Creek and Monument Creek, where the scientists did not expect to find it. Nimmo’s theory is that emissions from power plants or from former smelters in both Pueblo and El Paso counties contributed to this, but that’s not been proved. He suggested the district think in terms of an “airshed” as well as a watershed.

Lesson 3: The researchers have baseline data about water quality prior to the large, destructive Waldo Canyon and Black Forest fires. They also collected samples of the charcoal-laden water after the first big rainfall following the Waldo Canyon Fire in 2012.

“This study needs to be repeated about now, in the next year, to see what effect the fire had,” Herrmann said.

Nimmo and Herrmann have headed up numerous Fountain Creek studies at Colorado State University-Pueblo over the past decade. Herrmann has studied aquatic life in Lake Pueblo since its construction in the early 1970s. Nimmo was involved in other studies on the Upper Arkansas River near Leadville as well.

“We need to continue this type of study,” Hart said. “It should be a district project.”

More Fountain Creek coverage here.


Water: Does the Colorado River compact need tweaking?

September 27, 2014

Originally posted on Summit County Citizens Voice:

‘Demand-cap’ concept could avert a compact call

The time to address water planning is before the reservoir run dry.

The time to address water planning is before the reservoir run dry.

By Bob Berwyn

FRISCO — Water managers in the Southwest are considering all sorts of options to address what is expected to become a huge shortage of water in the Colorado River Basin. But one path they haven’t explored in detail is a fundamental re-allocation of water between the Upper Basin and Lower Basin states.

That reluctance is understandable. Since 1922, the Colorado River Compact has functioned to the satisfaction of all the states using Colorado River Water. But persistently lower-than-average flows, the looming threat of an overall shortage and the uncertainties of climate change may require a new way of thinking, said Doug Kenney, head of the Colorado River Governance Initiative.

View original 1,029 more words


#ColoradoRiver District seminar recap

September 27, 2014

From KREXTV.com (Brian Germ):

The Colorado River District held its annual seminar on Friday [September 18] at Two Rivers Convention Center to discuss water issues concerning the Colorado River Basin.

Each year, there is a certain topic of discussion at the seminar involving development plans or water-allocation. This year, District leaders and speakers focused on agriculture efficiency and conservation when it comes to water. Some of the challenges that are facing agriculture water users include climate change and drought.

The Colorado River District encourages the public and representatives to voice their opinions and get involved with them. They say it’s important to talk about the water in the Colorado River Basin and its use, priorities, and development.

From the Glenwood Springs Post Independent (Amy Hadden Marsh):

What would the Colorado River and Roaring Fork valleys look like without the ranches and farms? That question has been haunting me ever since I attended the Colorado River District’s water seminar in Grand Junction last week. Close to 300 people listened to speakers Brad Udall, of the Colorado Water Institute, Jeff Lukas, lead author of a report about how climate change could effect water management in the state, CSU’s Perry Cabot, Aaron Citron of the Environmental Defense Fund (EDF), Mark Harris of the Grand Valley Water Users Association and author Kevin Fedarko.

Agriculture is a large part of life on the West Slope. But, it’s not just about bucolic landscapes; it’s also about what goes on behind the scenery – the rural lifestyle and economy that depend on agriculture to survive as well as a healthy, natural environment that supports animals, plants, and humans.

So, what could make West Slope farms and ranches disappear? No water. Or, at least, not enough water, which is what experts from all sectors agree could very well be Colorado’s future.

Here’s the numbers part. The Colorado River serves about 40 million people right now. But, that won’t always be the case. Two years ago, the Bureau of Reclamation issued the Colorado River Basin Water Supply and Demand Study, which predicted a population increase anywhere from 9.3 million to 36.5 million people within the Colorado River Basin. That means the amount of people living in the seven basin states could almost double within the next four decades. As a result, says the study, we could be short 3.2 million acre-feet of water…

…does that mean farmers and ranchers have to give up their livelihoods and thereby cause a domino effect around the rural West in order to satisfy Front Range urban needs?[...]

Basically, the answer was “no” but, according to most of the speakers, that doesn’t mean ag folks and Front Range municipal water users should stand on their respective ends of the tug ‘o war rope, arms akimbo, refusing to budge. “Efficiency” and “conservation” were the buzzwords of the day, meaning everyone basically needs to use less water. That’s sort of a no-brainer but the real conundrum is getting everyone to agree on what that looks like.

EDF’s Aaron Citron writes a sort of ag blog for the organization’s website and he said he thought people would laugh at the idea. When I asked him why, he said that in the West, environmentalists are seen as anti-agriculture or anti-growth. But, he added, that is changing. And, it’s all because of water.

“As we talk about the future of water in the West,” he said, “there really is an important alignment between agriculture who want to keep water in place and tend to be some of the best stewards of the land and environmentalists and conservationists who also want to see the protection of open space and who want to keep water in place.”

In other words, environmentalists and ranchers can be friends. And, in terms of the West’s water future, they have to be…

Solutions at this point are experimental and include new irrigation techniques and incentives to use them, and efficiency technology like smart ditches and soil monitoring. But, what it comes down to is education, open-mindedness (particularly about climate change), agreement, and respect.

More Colorado River Water Conservancy District coverage here.


Lower Ark board meeting recap: “We’re trying to see if a lease-fallowing program is viable” — Jay Winner

September 18, 2014

From The Pueblo Chieftain (Chris Woodka):

The Colorado Water Conservation Board last week approved a pilot project that will provide the town of Fowler water from several farms on the Catlin Canal over the next 10 years. The project is the first to be attempted under 2013 legislation, HB1248, that authorized demonstration projects that determine if lease-fallowing projects are a viable alternative to permanent dry-up of farms. It is also the first test of the viability of the Arkansas Valley Super Ditch.

Participating farms would be dried up no more than three years of the next 10 in order to supply 500 acre-feet (163 million gallons) annually to Fowler. Seven farms with 1,128 acres will be dried up on a rotational basis to provide the water under a plan filed by the Lower Arkansas Valley Water Conservancy District and the Arkansas Valley Super Ditch.

The CWCB reviewed comments on the project expressing concern from Aurora, the Lower Arkansas Water Management Association, Tri-State Generation and Transmission Association, the Southeastern Colorado Water Conservancy District and Colorado Beef, a Lamar feed lot. The comments were similar to filings made in the past in water court cases that sought to permanently change water rights. Most expressed concern that their water rights would not be injured by the program and sought to assure that measurements in the program are accurate. Some were supportive of the program and all wanted to be notified of progress or changes in the program.

“We’re trying to see if a lease-fallowing program is viable,” said Jay Winner, general manager of the Lower Arkansas Valley Water Conservancy District. “We’re trying to keep the water in the Arkansas basin. That’s what it’s all about.”

From The Pueblo Chieftain (Chris Woodka):

How much water is staying down on the farm?

The state will spend $175,000 to study the amount of water returning to the Arkansas River from fields on the Fort Lyon Canal. That will be matched with $50,000 from the Lower Arkansas Valley Water Conservancy District. The Colorado Water Conservation Board approved the grant last week as a way to address contentions from farmers that the amount of tailwater return to the Arkansas River has been overestimated. The outcome could affect the formulas used by the Colorado Division of Water Resources in administering the Arkansas River Compact and rules that govern wells or surface irrigation. It could also make more water available to farmers to lease under the Super Ditch or other rotational lease-fallow programs.

The grant was approved in July by the Arkansas Basin Roundtable.

The state now recognizes a 10 percent return of water from fields, or tailwater, that are flood irrigated. That water must be replaced under state rules adopted during the 24-year Kansas v. Colorado court case.

The Fort Lyon Canal is 100 miles long and irrigates 94,000 acres, so farmers contend water soaks into the ground and never makes it to the river. It is anticipated that the collection and analysis of data will take about two years to complete, at which time further work could be contemplated.

From The Pueblo Chieftain (Chris Woodka):

Leaky ponds are good news for farmers in the Lower Arkansas Valley. The second year of a pond study in a normal water year is showing similar results as last year, when drought gripped the region.

“We’re not seeing a significant difference,” said Brian Lauritsen, a consultant on the study being funded through the Lower Arkansas Valley Water Conservancy District and the Colorado Water Conservation Board.

Water leakage on more than 20 ponds averaged about 20 percent this year, compared with 18 percent last year. Most are on the Fort Lyon Canal. It had been thought the numbers would be higher when the ground was drier.

“Usually, you don’t want to see ponds leaking,” said Jack Goble, engineer for the Lower Ark district.

But in this case, there is a chance the state will adjust its formula used to determine how much water irrigators owe for return flows that are reduced through more efficient irrigation techniques such as sprinklers. More leakage means less water owed to the river.

The Lower Ark also has built two ponds on the Catlin Canal designed specifically to leak. Called recharge ponds, they are designed to return water to the Arkansas River over time, the way that water flows through the aquifer in farming operations. One pond fills part of the need for Rule 10 surface irrigation plans, while the other is credited to Rule 14 well plans. One pond contributed 135 acre-feet (44 million gallons) in a month, while the other leaked 120 acre-feet (40 million gallons) in 21 days.

“I hope we’re able to get more of these ponds, especially in the lower part of the basin,” said Jay Winner, general manager of the Lower Ark District.

More HB13-1248 coverage here. More Lower Arkansas Valley Water Conservancy District coverage here.


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