#CleanWaterRules Litigation Update: Let’s All Just Take a Breath — Jon Devine

rifflesaspenjournalismbrentgardnersmith
Photo via Aspen Journalism — Brent Gardner-Smith

From Switchboard (Jon Devine):

If you’re following the legal fallout from the Obama Administration’s finalization of its initiative to protect critical streams and wetlands – called the Clean Water Rule – you were probably on the lookout for action this week. (And, you’re a bit odd. It’s OK – me too.)

That’s because the rule, which the Environmental Protection Agency Administrator, Gina McCarthy, and the Assistant Secretary of the Army for Civil Works, Jo-Ellen Darcy, signed back in May, was scheduled to take effect today.

That didn’t entirely happen as planned, due to a single court ruling yesterday. More on that in a minute, but first some background to provide context for my ultimate message in this post: this is just part of the process, and there is no need to overreact to a preliminary ruling in one case…

What Happened [last] Week

In the run-up to the rule’s implementation date today, a number of the parties that sued the agencies claiming that the rule is too protective of the nation’s water resources asked four trial-level courts to block the rule from taking effect. One of these courts, in Oklahoma, where two cases were pending, granted the federal government’s request weeks ago to put those cases on hold while the government seeks to have the cases transferred and consolidated in Washington, DC. The other three courts – located in Georgia, North Dakota, and West Virginia – all issued rulings this week. (All but one of the remaining district courts with pending challenges from state or industry opponents have postponed any further proceedings in the cases, at the federal government’s request. Similar requests are pending in the challenges that the conservation groups have filed.)

Of the three courts that issued rulings this week on opponents’ requests to delay the rule, two of them, the Northern District of West Virginia and the Southern District of Georgia, both refused to grant the delay and held instead that the cases should be heard by the appellate court.

That leaves one court – the District of North Dakota – which ruled yesterday that it both has the jurisdiction to decide the case and that it should temporarily prevent implementation of the rule while the case is more fully argued. The court concluded that the state plaintiffs in that case, led by North Dakota, were likely to prevail on their legal claims that the rule was too protective, and that the states would be harmed by the rule taking effect.

Although we are still reviewing the decision closely and evaluating our options for next steps, we profoundly disagree with the court’s conclusion that the extraordinary remedy of an injunction is justified here, and are disappointed that the rule’s implementation will be delayed, at least to some extent. Every day the rule is not in force in a given place, the streams, ponds, and wetlands that people swim in, fish from, boat on, and depend on for drinking water are at unnecessary risk of being polluted or destroyed.

At the same time, let’s see this ruling for what it is – a temporary delay in one of a dozen or so cases. Indeed, the agencies have explained that the Clean Water Rule will take effect today for those states not involved in the North Dakota litigation. And, even in that case, proponents of the Clean Water Rule will have additional opportunities to explain why the rule’s safeguards are well within the bounds established by the Supreme Court and are supported by the voluminous scientific evidence of the importance of the waters that the rule protects.

Consider a recent point of reference: the Affordable Care Act was found to be invalid by some different courts when it was similarly challenged in a number of places. At the end of the day, however, it was twice upheld by the Supreme Court, and is now the law of the land.

Cases such as that, plus the certainty that the Clean Water Act authorizes the agencies to protect those water bodies that significantly affect downstream waters, give me confidence that, despite the delay in this instance, the cases attacking the rule as too protective will ultimately fail. When that happens, the rule will remain in place with necessary protections for the health and well-being of our families and communities, as well as our prosperous fisheries and tourism industries.

Inhale, exhale, repeat.

Don’t miss the screening of the Great Divide tonight #COWaterPlan

thegreatdividefilmhaveyproductions
From 9News.com (Maya Rodriquez):

“We do live in a desert. It’s hard to see that because we have made it this,” said Jim Havey, director of a new documentary called “The Great Divide.”

It explores how Colorado settlers, from early Native Americans to 20th century civil engineers, used water to create the state we call home today. 9NEWS is also broadcasting documentary film “The Great Divide” on Monday, Aug. 31, at 7 p.m. on KTVD-TV, Channel 20…

The film looks forward as well, specifically at the Colorado Water Plan. It’s the first ever comprehensive plan, attempting to guide the state towards a future where more water will be needed to deal with a predicted doubling of the population: 10 million people by 2050.

“We’ve got multiple sectors all across this state that depend on water and making sure that water is delivered with some certainty to them and reliably,” said James Eklund, director of the Colorado Water Conservation Board, which is shaping the water plan.

The pressure for more water could potentially put a strain on the state’s agriculture sector, where farmers and ranchers – who have senior water rights – could sell those rights to growing urban areas.

“Those farmers and ranchers who made an economic decision to move that water from their land and move it to a municipal use—that’s where the balance comes about,” said Colorado Farm Bureau President Don Shawcroft…

We want to make sure that as we move forward with a strategic plan, we’re able to deal with drought, flooding, wildfire – all the things that have been thrown at this state over the course of the last several years — in a strategic manner,” Eklund said.

The final draft of the Colorado Water is set to be finished by Dec. 10. The state is still taking public comment on it, but that will end on Sept. 17. To add your voice to the plan, go to http://coloradowaterplan.com.

Here’s the Coyote Gulch review of the film.

Fountain Creek Watershed Flood Control and Greenway District update

Fountain Creek Watershed
Fountain Creek Watershed

From The Pueblo Chieftain (Chris Woodka):

Next year, the Fountain Creek Watershed Flood Control and Greenway District could receive the first of five $10 million annual payments.

But the district still may be forced to pass the hat among El Paso and Pueblo County governments to scrape together its operating revenue.

“We’ve limped along for years,” said Pueblo County Commissioner Terry Hart. “But the $50 million is not going to answer everything. We can’t use the $50 million to hold the district together, although it should pay its share.”

The $50 million is a commitment by Colorado Springs Utilities to Pueblo County under the 1041 permit for the Southern Delivery System, an $841 million pipeline from Pueblo Dam to Colorado Springs. The pipeline is scheduled to come online by early 2016, triggering the payment.

The money must be used for flood control projects on Fountain Creek that provide a “significant and not merely incidental” benefit to Pueblo.

On Friday, the board continued to contemplate its cash-flow problems.

Executive Director Larry Small has worked for just $2,500 monthly — half the salary of his predecessor — since 2011 has patched together the budget during that time. His own payment includes the use of project management fees as part of the austerity program.

Under the language of the 1041 permit, all of the $50 million is to be used for flood control to benefit Pueblo, so there is no cushion for general operations. The district intends to use that money to leverage other grants, which would be administered through its enterprise, not the general fund.

Meanwhile, the district has the ability to levee a 5-mill tax on El Paso and Pueblo counties. Each mill would raise more than $7 million, and voters in both counties would have to approve it.

The district put the brakes on its mill levy investigation in 2012 in order for El Paso County to consider forming a regional drainage authority. That failed to pass in a vote last November.

More coverage of the district from Chris Woodka writing for The Pueblo Chieftain:

Merely proving that water rights would be a relatively minor issue compared with the benefits of flood control on Fountain Creek is not enough.

“Negative comments will continue, but science is science,” Pueblo County Commissioner Terry Hart said Friday. “I think we will still have concerns regardless of what the science shows.”

The Fountain Creek Watershed Flood Control and Greenway District Friday briefly discussed the progress of its study to assess water rights impacts of dams or retention ponds built on Fountain Creek. The study by engineer Duane Helton was released for review last week.

It shows there would have been minor impacts if projects were designed to allow 10,000 cubic feet per second of water to flow during certain storm events. In larger storm events, there would be almost no impact to water rights because the river call would be John Martin Reservoir storage. The report also describes steps to mitigate water rights that are injured.

The bigger political problem is to reassure doubters that it can be done.

State Sen. Larry Crowder, R-Alamosa, earlier this month yanked his support for a dam on Fountain Creek after listening to opposition from some downstream farmers and counties.

The Arkansas Basin Roundtable last year refused to advance a state grant until water rights issues were resolved.
Even the state Legislature failed to include Fountain Creek in a bill that allowed floodwater storage for three-five days depending on the size of the event.

“It helps to continue the conversation that junior water rights can be protected, and that will help us with the design (of flood control projects),” Hart said.

Melissa Esquibel, a member of the Lower Arkansas Valley Water Conservancy District board, said the results of the study need to be presented to a wider audience at a future meeting of that board in Rocky Ford.

Executive Director Larry Small noted that representatives from downstream ditch companies have been attending the technical meetings that were part of the study.

“We need to be proactive in sharing the information,” Esquibel said. “We have people from Otero all the way down to Prowers County. It would be a slightly different turnout.”

Republican River: Colorado, Kansas, and Nebraska optimistic after latest agreement

RRCA resolution signing August 27, 2015. From left to right: David Barfield, Dick Wolfe and Jeff Fassett(Photo courtesy RRCA)
RRCA resolution signing August 27, 2015. From left to right: David Barfield, Dick Wolfe and Jeff Fassett(Photo courtesy RRCA)

From the Kansas Department of Agriculture:

Republican River Compact Adjustments to Benefit Basin Water Users

(Lincoln, Neb.) Today, the states of Colorado, Kansas and Nebraska have reached an agreement that will ensure more certainty to the basin’s water users in both Nebraska and Kansas. The agreement, in the form of a Resolution approved by the Republican River Compact Administration (RRCA), was achieved through collaborative negotiations that began in April 2015 and will provide timely notice and access to water for the 2016 irrigation season.
The agreement provides additional flexibility for Nebraska to achieve its Compact obligations while ensuring that the interests of Kansas are protected. The additional flexibility will allow the Nebraska Department of Natural Resources to provide a portion of the forecasted compliance water early in 2016 and provide any additional shortfall later in 2016 and through April 1, 2017. This also provides some improved operational predictability for Nebraska water users in that water users will not be subjected to closing notices related to the 2016 irrigation season.

The 2016 agreement builds upon the agreement reached for the 2015 irrigation season with further beneficial developments for water users. This agreement provides more advanced notice to irrigators in the basin of compliance activities that will likely occur in 2016, allowing for an advanced planning period producers desire for their efficiently run operations.

The States’ agreement is contingent upon the Nebraska and the Kansas Bostwick Irrigation Districts, working with the U.S. Bureau of Reclamation, – reaching agreement on modifications of certain contract provisions contained in their Memorandum of Agreement (MOA) also adopted last year. Thus, ensuring the availability of the water pumped from Nebraska augmentation projects for RRCA compliance.

Current RRCA Chairman, Gordon W. “Jeff” Fassett, Director of the Nebraska Department of Natural Resources, said, “Today’s agreement is good news for Nebraska water users and represents the continuation of the cooperative and positive collaboration we’ve fostered between our states as we work to find mutually agreeable solutions that best serve our citizens. Additionally, we are hopeful that this positive momentum will continue to move us closer to the goal of securing a long-term agreement. With significantly more planning time, Nebraska’s water users will have greater certainty in their water supply and make the best decisions for their operations.”

“We are pleased to collaborate with Nebraska and Colorado as we continue to develop balanced and fair water solutions benefiting all of the basin’s water users that reflects good water management,” said Kansas Commissioner David Barfield. “This fourth in our series of recent agreements with Nebraska allows Kansas to make effective use of its water supply in 2016 and allows the states additional time and experience with Nebraska’s compliance activities as we continue to move toward long-term agreement.”

Colorado Commissioner Dick Wolfe said, “This agreement exemplifies the success that can be achieved through collaboration and cooperation of the RRCA and the water users in the basin.”

The RRCA is comprised of one member each from the States of Colorado, Kansas and Nebraska. The purpose of the RRCA is to administer the Republican River Compact. This Compact allocates the waters of the Republican River among the three states. The next RRCA annual meeting is scheduled for August of 2016 and will be hosted by the State of Colorado in a location of their choice.

“The political will comes only when there is a crisis” — Mike DiTullio

Water infrastructure as sidewalk art
Water infrastructure as sidewalk art

From the Fort Collins Coloradoan (Kevin Duggan):

Developers accustomed to Fort Collins Utilities’ relatively inexpensive water service face the other districts’ unfamiliar requirements and exponentially higher costs — as much as $32,000 per lot — that some say will drive up the city’s already escalating housing prices.

And water delivery costs in Colorado are expected to rise as Front Range population growth further taxes systems that provide the lifeblood of Colorado industry, agriculture, recreation and modern living…

Combining forces to focus on the water supply needs of the [Growth Management Area] — land that is expected to eventually be within Fort Collins city limits — would be a departure from long-standing practices. But such an approach is “absolutely the way to go” to manage the area’s water resources, said Mike DiTullio, general manager of the Fort Collins-Loveland Water District, which serves much of the southern third of Fort Collins.

“We’ve got to figure out a method in which we can get water where it’s needed without jeopardizing the ownership of it,” he said. “We need to [wheel] it around like you do electricity.”

But DiTullio, who has managed Fort Collins-Loveland for 34 years, said interest in taking a new approach to managing local water resources will take time to develop.

“The political will comes only when there is a crisis,” he said. “We don’t have a crisis yet.”

Fountain Creek: Study recommends designing flood control structures to allow 10,000 cfs through Pueblo

Fountain Creek
Fountain Creek

From The Pueblo Chieftain (Chris Woodka):

There would be little impact on water rights if flood control structures on Fountain Creek were designed to allow 10,000 cubic feet per second of water to pass through Pueblo.

That’s the conclusion of a draft report by engineer Duane Helton commissioned by the Fountain Creek Watershed Flood Control and Greenway District, released this week.

The district is looking at the issue as part of its investigation into the feasibility of building either a large dam or series of detention ponds on Fountain Creek. A U.S. Geological Survey study shows those are the most effective way to stop high flows from inflicting more damage on the waterway through Pueblo.

A study for Pueblo County by Wright Water Engineering indicates those flows have been worsened by development in Colorado Springs for the past 35 years — from both more impervious surfaces and the introduction of imported water. About 363,000 tons of additional sediment each year are deposited between Colorado Springs and Pueblo.

Helton’s study, which is now under review by interested parties, indicates that water rights during extremely large floods would not be affected because water would be stored in John Martin Reservoir. That same situation occurred this year during six weeks of moderate, but prolonged flows on Fountain Creek.

“Although the owners of the ditches and reservoirs on the Arkansas River are appropriately concerned about the effects of the Fountain Creek flood remediation project on their diversions under the priority system, a conclusion from this analysis is that the operation of the Fountain Creek Flood Remediation Project will not have significant effects on the diversions into the ditches and reservoirs on the Arkansas River in at least some of the years,” Helton’s report states.

Helton analyzed data since 1921, with about 75 years of flow records for Fountain Creek. The records were unavailable for some years. There were 18 years where the peak flow exceeded 10,000 cfs.

He modeled floods in 1999 and 2011, concluding that about 5,291 acre-feet would have been impounded during the 1999 flood and 368 acre-feet in the 2011 event if flood control was managed for everything above 10,000 cfs. In the 1999 flood, there would have been little if any impact on downstream rights, since John Martin storage was active.
The report also concluded that a method could be developed to ensure downstream water users would get water they otherwise would have been entitled to receive.

Jennifer Gimbel and Pat Mulroy are the featured speakers at the 2015 #ColoradoRiver District seminar

Herbert Hoover presides over the signing of the Colorado River Compact in November 1922.  (Courtesy U.S. Department of Interior, Bureau of Reclamation)
Herbert Hoover presides over the signing of the Colorado River Compact in November 1922. (Courtesy U.S. Department of Interior, Bureau of Reclamation)

Here’s the release from the Colorado River Water Conservancy District via Jim Pokrandt:

Two of the most important women in Western water leadership will be addressing the Colorado River District’s popular Annual Water Seminar in Grand Junction, Colo., that takes place Thursday, Sept. 10, 2015, from 9 a.m. to 3:30 p.m. at the Two Rivers Convention Center.

Headlining the event are Jennifer Gimbel, the Assistant Secretary for Water and Science, the U.S. Department of the Interior; and Pat Mulroy, Senior Fellow for Climate Adaptation and Environmental Policy at the University of Nevada-Las Vegas’ Brookings Mountain West, as well as a senior fellow in the Brookings Institution’s Metropolitan Policy Program in Washington, D.C. She retired in 2014 as General Manager of the Southern Nevada Water Authority.

Ms. Gimbel is well known in Colorado for her work as director at the Colorado Water Conservation Board before she moved to federal positions with the Department of the Interior that culminated with her ascendency to the post that oversees the Bureau of Reclamation, the U.S. Geological Survey and Colorado River administration. Ms. Mulroy oversaw the Southern Nevada Water Authority for 21 years where she got results as well as headlines in positioning Las Vegas for growth in the face of limited water supply.

The theme of the seminar is: “Will What’s Happening in California Stay in California?” Cost of the seminar, which includes lunch, is $30 if pre-registered by Friday, Sept. 4, $40 at the door. Register at the River District’s website: http://www.ColoradoRiverDistrict.org. Call Meredith Spyker at 970-945-8522 to pay by credit card.

The day’s speakers will draw an arc of water supply and policy concern from the Pacific to Colorado, looking at the basics of climate and weather generated by the Pacific, dire drought in California and what that means to the interior West, the still-on-the-horizon planning to deal with low reservoir levels at Lakes Powell and Mead, and finally, an analysis of Colorado’s Water Plan, still in draft form.

Klaus Wolter, a pre-eminent analyst of El Nino-La Nina conditions in the Pacific will preview the growing El Nino conditions and what they will mean for snowpack this winter. He is a research scientist at the NOAA Earth System Research Laboratory’s Physical Sciences Division in Boulder and world renowned in his field.

Also at the seminar, Colorado River District staff will speak to its policy initiative that new paradigm in Colorado Water Planning is how to protect existing uses, especially irrigated agriculture in Western Colorado, in the face of diminishing supplies and potential demand management necessities. Issues of planning for new transmountain diversion (TMD) remains a big focal point in Colorado’s Water Plan, but it is drought and reservoir levels that will command the system before a TMD can be honestly contemplated.

Other speakers will address irrigated agriculture’s role in water planning, efficiency and conservation planning and financing and more.