Volume 2 Issue 6
June 2011
Dick Proctor: Colorado's Grand Valley Water Users and the Endangered Fish Recovery Program: A Working Partnership
The Importance of
W
hether an irrigation district general manager is facing an Endangered Species Act (ESA) issue for the first time or has been working on such issues for years, it is helpful to know how others have developed solutions to these often complex problems. It is especially important to share lessons learned and determine which components of successful programs could possibly be used in other regions. This issue of Irrigation Leader focuses on a sampling of programs and methods that have allowed irrigation districts and others to continue their important business of delivering water to their customers. Sharing such information among the diverse members of the western water community is the mission of this magazine. The importance of information, especially about solutions, cannot be over-valued. When I first proposed this magazine and began discussing it with colleagues throughout the West, many advised that it should be published quarterly and cited the time and expense of developing content more frequently. However, I was concerned that a quarterly magazine would not truly contribute to our national policy conversation on water issues given the infrequency of publication. While the Irrigation Leader team eventually embraced a 10-times-per-year publication schedule, in today’s world of instant communication I recognize that sometimes even this is not enough. To more frequently gather and provide information on water and power issues in one location, we plan to officially launch “The Water and Power Report”
Information found at www.WaterandPowerReport.com on July 18. It is a simple, information-focused site that presents headlines and links to articles related to water and power issues. The content changes daily. In just a few minutes, viewers of the site are provided a brief, composite window of what is going on in the world of water and power issues. Our hope is that Irrigation Leader will continue to serve as an important marketplace for ideas with in-depth feature content, while The Water and Power Report will ensure all involved with water use in the West are apprised of current issues on a daily basis. We hope you will find this issue of Irrigation Leader helpful as you strive to meet today’s water supply challenges. While ESA issues are often dissimilar and complex, many have achieved solutions that ensure their continued access to water. Additionally, we encourage you to view the new site beginning July 18 and hope you will find it a useful tool as you work to stay informed of water issues throughout the western United States. Kris Polly is editor-in-chief of Irrigation Leader magazine and president of Water Strategies, LLC, a government relations firm he began in February 2009 for the purpose representing and guiding water, power, and agricultural entities in their dealings with Congress, the Bureau of Reclamation, and other federal government agencies. He may be contacted by e-mailing Kris.Polly@waterstrategies.com.
Tired of hearing news that affects your job or business second-hand? Need more timely information to remain up to speed on important water policy issues? Water Strategies, LLC is proud to announce the launch of
The Water and Power Report will be available July 18 at
www.WaterandPowerReport.com The Water and Power Report is a one-stop marketplace for news, ideas, and insight into the water and power community. A compliment to Irrigation Leader’s in-depth articles about western water policy, the website will feature a daily download of links to news and information from sites originating throughout the western United States.
The Water and Power Report will also include electronic copies of every issue of its sister publication, Irrigation Leader. 2
Irrigation Leader
JUNE 2011
C O N T E N T S 2 The Importance of Information By Kris Polly, editor-in-chief
Volume 2
Issue 6
Irrigation Leader is published 10 times a year with combined issues for November-December and July-August by: Water Strategies, LLC P.O. Box 100576 Arlington, VA 22210 Staff: Kris Polly, Editor-in-Chief John Chisholm, Senior Writer Robin Pursley, Graphic Designer Capital Copyediting, LLC, Copy Editor SUBMISSIONS: Irrigation Leader welcomes manuscript, photography, and art submissions. However, the right to edit or deny publishing submissions is reserved. Submissions are returned only upon request.
4 Colorado’s Grand Valley Water Users and the
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Endangered Fish Recovery Program: A Working Partnership San Juan River Basin Recovery Implementation Program: An Ongoing Success Story
By Tom Pitts
12 Diverse Interests Collaborate to Meet Challenges in Yakima River Basin By Andrew Graham
15 Success of Colorado Recovery Programs Provides Local Control, Continued Water Delivery By Chris Treese
16 Action Necessary to Combat Unnecessary
Restrictions on Herbicide Application By Jim Skillen
20 Reinke Manufacturing Maintains Farming
ADVERTISING: Irrigation Leader accepts one-quarter, half-page, and full-page ads. For more information on rates and placement, please contact our office by e-mailing Irrigation.Leader@waterstrategies.com.
Community Roots 22 Oklahoma Water Resources Board Integrates State Water Planning, Financial Assistance
CIRCULATION: Irrigation Leader is distributed to irrigation district managers and boards of directors in the 17 western states, Bureau of Reclamation officials, Members of Congress and committee staff, and advertising sponsors. For address corrections or additions, please contact our office by e-mailing Irrigation.Leader@waterstrategies.com.
24 Belle Fourche Irrigation District Implements
By J.D. Strong
District Focus:
Creative Solutions to Deal with Aging Infrastructure, Modernize District Facilities
Water Law:
26 Wetlands 101 for Water Users:
What Irrigation Leaders Should Know About Expanding Federal Jurisdiction Under the Clean Water Act By Kent Holsinger, Esq.
COVER PHOTO: Dick Proctor, general manager for the Grand Valley Water Users Association (GVWUA), June 2011. Photo provided by GVWUA.
28 Engaging Early and Effectively on
Endangered Species Listing Decisions By By Joe Nelson
The Innovators:
30 Biodegradable Polymers Create Root-Zone Reservoir
Irrigation Leader
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Colorado's Grand Valley Water Users and the Endangered Fish Recovery Program:
A Working Partnership
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n the 1980s, four fish species native to the Colorado River were protected by the Endangered Species Act (ESA). At the time, a 15-mile reach of the river near Grand Junction would sometimes run nearly dry, contributing to the continued loss of the fish. The U.S. Fish and Wildlife Service (USFWS) called for more water for the fish in a fully appropriated river basin. A 1978 U.S. Supreme Court ruling on the ESA left little room for argument about priorities in federal court. Fortunately, a collaborative group of federal and state agencies, water users, environmentalists and hydropower customers banded together to avoid a collision of the ESA with state water rights. For more than two decades, the Upper Colorado Endangered Fish Recovery Program, the product of their efforts, benefits the fish consistent with state water law (see Irrigation Leader, October 2010). As part of the Recovery Program, Reclamation and the Grand Valley Water Users Association (GVWUA) developed the Grand Valley Water Management Plan to construct check structures throughout Reclamation’s Grand Valley Project to maintain higher water levels at lower flows. Constructed in 2000 and 2001, the project conserves an average of 49,900 acre-feet of water annually to benefit the endangered fish. GVWUA, based in Grand Junction, Colorado, was a key participant in the collaborative effort. GVWUA operates, maintains, and manages the project, and delivers water to 23,340 acres of water-righted land via the 55-mile long Government Highline Canal and 130 miles of pressurized pipelines. GVWUA also diverts water at its headgate for three other irrigation districts and a hydroelectric generation plant. The project benefits the fish and GVWUA. For nearly 17 years, Dick Proctor has served as GVWUA’s manager. He led the association’s efforts to support fish recovery while maintaining the central mission of ensuring that his water users receive their titled allocations. Irrigation Leader’s editor-in-chief, Kris Polly, interviewed Proctor on June 8 about GVWUA’s work to recover endangered fish species and how its proactive role in these efforts helps to secure its ability to deliver water.
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Kris Polly: What has been the biggest challenge to
you as a manager during your tenure with GVWUA?
Dick Proctor: I can safely say that that ESA issues have been the biggest challenge. GVWUA was cooperating in a study with Reclamation on what we now call the Grand Valley Water Management Plan when I was hired some 17 years ago. The plan was to put water level control structures—check structures—in the canal to generate water savings and leave water in the Colorado River for the endangered fish. I had been on the job for about a month and was going through the study process evaluating what would work as new canal structures to facilitate the Plan. Kris Polly: What was the plan designed to accomplish?
Dick Proctor: The goal was to save approximately
28,500 acre-feet of water per year and leave it in the river in what we call the 15-mile reach. The reach is critical habitat for the endangered fish. It lies downstream of two large irrigation diversion structures located on the Colorado River. The reach is located between the downstream diversion structure and the confluence of the Gunnison and Colorado Rivers. The plan consisted of seven new canal check structures, which were constructed during winter 2000–2001, a bypass pipeline (also built in 2000–2001), a pumping station at Highline Lake, a SCADA system, and other system improvements. The new canal structures maintain high water levels at low flows. Previously, we diverted higher flows of water to meet deliveries to high headgates. In the shoulders of the irrigation season, in early spring and late fall, our irrigation demands are reduced. Again, the canal checks allow us to match our diversions closer to our irrigators’ needs. The result is that the saved water is left in the river for the benefit of the endangered fish.
Kris Polly: Did GVWUA encounter any problems as a result of the check structure installation?
Dick Proctor: We have some isolated spots where lightning strikes can knock out the electrical service to a canal check. Rain events can cause flood waters to flow into our canal. The possibility of sedimentation loading occurring in the canal once the canal structures were constructed was a concern. During the planning process, our board of directors expressed its concerns to
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Reclamation. Reclamation listened to the board’s concerns. The developed plan was very feasible, and it addressed the issues we had at the time.
and funding. There is a lot of good cooperation among the Recovery Program, Reclamation and USFWS. All in all, it’s been positive.
Kris Polly: How much less water do you divert because
Kris Polly: How have the check structures helped the district to manage water deliveries?
Dick Proctor: On average, for the last nine irrigation seasons, we have saved an average of 49,900 acre-feet of water annually for the fish.
Dick Proctor: The check structures were installed in winter 2000–2001. We were still working on the SCADA system to automate the checks when the 2002 drought came along. We used the check structures even though they were not yet fitted for SCADA. We operated them manually. We were able to use them to our benefit, which helped us get through that 2002 drought. We made it through the drought without a whole lot of losses. So that was a benefit. We put those check structures to work early on, even before they were completely finished.
of the check structures?
Kris Polly: How popular is the program with the farmers in the area?
Dick Proctor: They poke fun about the fish and the attention they get, but I think that the success we have had with our Grand Valley Water Management Plan and its structures speaks for itself. We have been able to deliver water to our irrigators successfully and still leave a substantial amount of water in the Colorado River for the endangered fish. Kris Polly: Was the program initially a hard sell to area farmers?
Dick Proctor: Yes it was. However, after being
involved with our Grand Valley Water Management Plan, I think it opened up the lines of communication and provided an avenue for our irrigators to be agreeable to the rest of the program that came along. We now have a fish passage on our diversion structure in the river that USFWS operates. We have a contract that says we will help with the maintenance work. We receive reimbursement for our time and expenses. We also have a fish screen on our canal that screens endangered fish out of the canal and returns them to the river. The screen is a little more technical to operate because of the brushes, the air, and the screens. We operate and maintain the screen for the Recovery Program. We receive reimbursement for our time and expenses. It is a sensitive structure to operate.
Kris Polly: Who paid for the construction of the check structures?
Dick Proctor: It was funded through the Upper Colorado Endangered Fish Recovery Program. GVWUA has not put any money into it. We have not been required to come up with thousands or millions of dollars out of our own pockets to build these structures. Overall, the Recovery Program is very successful obtaining support
Irrigation Leader
Kris Polly: What advice would you give to other
irrigation district managers that are having ESA issues? Would you encourage them to pursue a similar program or plan?
Dick Proctor: It is better and easier in the long run for
people to get involved and have some input, to be part of the solution and not part of the problem. Yes, I would. For example, when we were initially doing the study and traveling around in the western United States looking at different flow control structures, I came up with an idea about a bypass pipeline from our canal back to the Colorado River above the 15-mile reach and suggested it to the group. The idea was first met with skepticism, but finally the other folks caught on to it and the pipeline was constructed. It is now one of the handiest structures we have. We can fine tune the flows in the canal without going back upstream to the diversion structure. We can operate the bypass pipeline in small increments of 10 or 20 cubic feet per second. The bypass pipeline has been a very flexible, valuable tool for us, and helps generate a lot of our water savings for the endangered fish. We try to keep the bypass pipeline flowing at 50 percent capacity. If the canal is low on water, we can put water from the pipeline into the canal. If the canal has too much water, we can spill it back to the river above the 15-mile reach to benefit the endangered fish.
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The San Juan River Basin Recovery Implementation Program:
An Ongoing Success Story For its many collaborative undertakings demonstrating that endangered species conservation and water development and management can be compatible, the San Juan River Basin Recovery Implementation Program is granted the Cooperative Conservation Award of the Department of the Interior. Dirk Kempthorne, Secretary of the Interior, April 21, 2008 By Tom Pitts he San Juan River Basin Recovery Implementation Program (Recovery Program) is a nationally recognized model of collaboration and cooperation in attaining the goals of the Endangered Species Act (ESA) while fully consistent with state water law, interstate water compacts, and trust responsibilities of the United States to Native American tribes. The Recovery Program includes the San Juan River drainage in Colorado, New Mexico, and Utah, approximately 23,000 square miles. ESA compliance is provided for federal, non-federal, and tribal water projects depleting more than 800,000 acre-feet per year. The success of the Recovery Program is the result of Lower San Juan River efforts over two decades by the states of Colorado and New Mexico, tribes, populations and therefore, the species itself.” However, water users, environmentalists, and federal agencies. the opinion required fishery surveys of these species. The surveys documented the presence of reproducing adult Origins Colorado pikeminnow. The razorback sucker was listed as endangered in October, 1991. Reclamation reconsulted The San Juan River historically provided habitat for on the Animas-La Plata Project impacts on endangered the endangered Colorado pikeminnow and razorback species. sucker. Approximately 180 miles of the San Juan River are Beginning in 1989, water users, tribes, federal agencies, designated as critical habitat for the endangered fish. By and the states of Colorado, New Mexico, and Utah began the 1980’s, only small remnant populations of the species discussing ESA compliance for water projects in the San survived in the San Juan River. Juan basin, initially focusing on the Animas-La Plata The Animas-La Plata Project, a major Reclamation Project. These discussions laid the ground work for the project proposed in the vicinity of Durango, Colorado, Recovery Program and a new 1991 biological opinion on was issued a biological opinion in 1979. Because of the the Animas-La Plata Project. small size of the San Juan River Colorado pikeminnow The 1991 biological opinion required reoperation of population, the U.S. Fish & Wildlife Service (Service) Reclamation’s Navajo Dam and Reservoir, a component determined that its possible loss “should have little impact of the Navajo Indian Irrigation Project (NIIP) in New on successfully reproducing Green and Colorado River
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Species Act, and 2) to proceed with water development in the basin in compliance with federal and state laws, interstate compacts, Supreme Court decrees, and federal trust responsibilities to the Southern Ute Tribe, Ute Mountain Ute Tribe, Jicarilla Apache Nation, and the Navajo Nation. The dual goals guide actions by the Recovery Program.
Program Participants
Colorado pikeminnow San Juan River 2010
Mexico. Reoperation provides flows in the San Juan River to offset impacts of the Animas-La Plata Project (see basin map). Protection of flows through portions of New Mexico, Colorado, and Utah required joint participation by states, water users, tribes, and the federal agencies. It was anticipated that the Recovery Program would also provide ESA compliance for other water projects in the basin, both existing and new. While modeled to some degree after the Upper Colorado River Endangered Fish Recovery Program (Irrigation Leader, October, 2010), the San Juan River Recovery Program was designed to work within the physical, biological, and political realities of the San Juan basin. The Recovery Program was selected as the means of ESA compliance. It provides an endpoint (recovery) and greater regulatory certainty for water users, and it meets the goals of the ESA. The Recovery Program was established in October, 1992 through a Cooperative Agreement signed by the Secretary of the Interior, the governors of Colorado and New Mexico, and the Jicarilla Apache Nation, the Southern Ute Tribe, and the Ute Mountain Ute Tribe. The Navajo Nation joined the Recovery Program in 1996. Water users and environmentalists also hold seats on the Recovery Program. The Agreement is in effect through 2023. The Animas-La Plata Project went on to construction. The project was completed in 2010.
Recovery Program Goals The two goals of the Recovery Program are: 1) to conserve populations of Colorado pikeminnow and razorback sucker in the basin consistent with the recovery goals established under the Endangered Irrigation Leader
Bureau of Reclamation U.S. Fish & Wildlife Service Bureau of Indian Affairs Bureau of Land Management States of Colorado and New Mexico Jicarilla Apache Nation Navajo Nation Southern Ute Tribe Ute Mountain Ute Tribe The Nature Conservancy Water Development Interests
Water for Endangered Fish Reoperation of Navajo Dam involves retiming of releases in conjunction with flows in the San Juan River and its tributaries to meet peak and base flow recommendations to benefit endangered fish. The flow recommendations specify frequencies and durations for flows depending on wet, dry, and average hydrologic conditions. Peak spring flows were not proposed every year because of the need to save water for human use and to make larger peak releases in some years. The flow recommendations promote recovery of the endangered fish species and allow for future water development. In the event of shortages due to drought, municipalities, industries, water districts, tribes, and the Service have agreed to shortage sharing. Retimed Navajo Dam releases allow tribal and non-federal water users to continue using other water sources in accordance with the state water law, interstate compacts, and U.S. trust responsibilities to the tribes.
ESA Compliance for Water Depletions The Recovery Program implements actions to achieve recovery of the species and provide ESA compliance for water development and management activities. These actions avoid jeopardy, avoid adverse modifications of critical habitat, and provide measures to minimize 9
any incidental take of endangered fish that occurs. In considering the impacts of an individual water project on the species, the Service determines if actions by the Recovery Program have been sufficient to provide ESA compliance. The Service retains the ultimate authority and responsibility for determining ESA compliance. Biennially, the Service provides an assessment of the Recovery Program. If the Service identifies any problems with implementation or the status of the endangered fish, the Recovery Program modifies timing and priorities of specific activities or adds new activities to its Long Range Plan to ensure continued ESA compliance for water projects. The Recovery Program is providing ESA compliance for water projects in New Mexico, Colorado, and Utah as summarized in the table below:
• Navajo Gallup Pipeline • Navajo Indian Irrigation Project • Jicarilla Water Settlement (pending) In addition, the Recovery Program also provides ESA compliance for small water projects benefitting the tribes.
Working with Congress
In the mid-1990s, it became apparent to Recovery Program participants that 1) the funding needed to develop capital projects (fish passages, fish screens, hatcheries, habitat) was underestimated, 2) cost sharing by non-federal participants with the federal government is needed, and 3) a dependable source of annual operating funds is needed to operate and maintain capital facilities, conduct monitoring, and support needed research. Cost sharing agreements Summary of Endangered Species Act Section 7 Consultations, were worked out. Federal legislation January 1992–December 31, 2010 was introduced that authorized federal State Number of projects Depletions appropriations and use of Colorado (acre-feet/year) River Storage Project hydropower revenues, and recognized cost sharing New Mexico 20 653,146 agreed to by the states, water users, and Colorado 282 217,788 power customers. The legislation (P.L. Utah 14 9,146 106-392) was passed and signed into law in 2000. It has been amended to TOTAL 316 880,080 meet new needs. Each year Congress appropriates funds to the Recovery Program. Strong bipartisan support In addition to in-basin water use, the Recovery Program exists in Congress and among congressional committees. provides ESA compliance for the Reclamation’s San JuanFour Presidential administrations have supported the Chama Project. San Juan-Chama diverts 100,000 acreRecovery Program. This support is based on the track feet/year of critical water supplies to Rio Grande basin record of accomplishments, resolution of conflicts, and municipalities, industries, agriculture, and Native American strong grass roots support among states, tribes, water users, pueblos in central New Mexico. power customers, and environmentalists. There have been no lawsuits on ESA compliance under the San Juan Recovery Program. ESA compliance has been streamlined for federal agencies, states, water users, and Recovery of the Species tribes. The originators of the Recovery Program recognized ESA Compliance for Tribal Water Projects that factors other than flows contributed to the Reservations of four Native American tribes are located wholly or partially within the San Juan basin: Navajo Nation, Jicarilla Apache Nation, Southern Ute Tribe, and Ute Mountain Ute Tribe. The Secretary of the Interior has a trust responsibility to assert and protect the trust water resources of the four tribes in the basin. The Recovery Program allows the United States to carry out its trust responsibilities in compliance with the ESA for a number of activities that benefit the tribes including: • Colorado Ute Settlement • Navajo Water Settlement • Jicarilla PNM Water Contract 10
Fish monitoring at the PNM Fish Passage near Farmington Irrigation Leader
endangerment and affect the recovery of the endangered fish species. To achieve recovery, the multifaceted Program includes: • provision of water for fish habitat, • habitat development (fish screens, fish passages, flooded bottomlands), • research and monitoring, • stocking of endangered fish, • controlling non-native fish species, and • water quality protection. The Recovery Program also includes information/ education and program management components. Some 180 miles of critical habitat are now accessible to the endangered fish and other native species due to fish passages. Hatcheries are producing genetically diverse Colorado pikeminnow and razorback suckers for stocking to restore these species. The impacts of introduced nonnative species are being reduced. Research and monitoring continue to evaluate the populations, impacts of recovery Adult razorback sucker captured in the San Juan River
(Source: San Juan Recovery Program)
Adult and subadult Colorado pikeminnow captured in the San Juan River
(Source: San Juan Recovery Program) Irrigation Leader
Monitoring by electrofishing on the San Juan River
actions on those populations, and the need for scientifically based adaptive management. The numbers of Colorado pikeminnow and razorback sucker, once almost gone in the basin, have dramatically increased as shown in the graphs at the left.
Future of the Program The capital construction program is scheduled for completion in 2015 with construction of an additional fish screen, a fish passage, and a project to protect critical habitat. Stocking of razorback sucker and Colorado pikeminnow will be continued to achieve population goals. Flow augmentation via reoperation of Navajo Dam is likely permanent. The species are projected to be recovered and delisted by 2023. Until that time, it is likely that the Recovery Program, as an institution, will continue. As a condition of recovery and delisting, agreements will have to be implemented to maintain those conditions (flows, passages, screens, habitats, etc.) that led to recovery of the species.
A Success Story The Recovery Program is moving towards recovery of endangered species -- the ultimate and rarely achieved goal of the ESA -- in concert with continued water development and management. One of the Recovery Program’s greatest accomplishments has been to bring people together in a collaborative effort that serves many diverse interests. Enormous conflicts with uncertain outcomes have been avoided. Potential adversaries have become allies and partners. Since 1989, Tom Pitts has represented Colorado and New Mexico water users in the negotiation and implementation of the San Juan River Basin Recovery Implementation Program. He is Principal, Water Consult, Engineering and Planning Consultants, Loveland, Colorado. Tom can be contacted at h2orus@waterconsult.com or 970-667-8690. 11
Diverse Interests Collaborate to Meet Challenges in Yakima River Basin By Andrew Graham or over 30 years, federal, state, local and tribal governments—as well as irrigation districts and environmental groups—were unable to develop a compromise to solve the water supply challenges in Washington’s Yakima River Basin. Eventually, through a collaborative effort conducted over the past two years, these diverse groups developed a broad outline of initiatives intended to balance the interests of each. Since Congress originally directed the Bureau of Reclamation to conduct a feasibility study on potential improvements to the Yakima River Basin Project in 1979, the various parties involved have struggled to agree on priorities. Discussions became particularly intense in 1994 and 2001 when junior water rights holders in the area saw their water deliveries cut by two-thirds because of drought conditions. Many water users feared that water shortages could grow worse in the coming decades due to a changing climate. Another issue that further complicated negotiations were the annual sockeye, summer Chinook, and Coho salmon runs, which once numbered in the hundreds of thousands and had disappeared over the years. This issue made increased stream flow and fish passage higher priorities. In 2009, the Bureau of Reclamation and Washington’s Department of Ecology banded together with the Yakama Nation, local government entities, irrigation districts, and environmental groups to form the Yakima River Basin Water Enhancement Project work group. This group was formed in response to a series of more focused efforts conducted by the two agencies. It ultimately determined that one-dimensional approaches, such as adding to the basin’s storage capability in isolation from other solutions, were insufficient to meet the many diverse needs. Coordinated by HDR, a consulting team that included Anchor QEA and others facilitated 12 all-day meetings in 2009 that were attended by more than 20 stakeholder groups. Eventually, the group settled on the outline of several projects targeted at seven elements of combined interest in an integrated plan: • Enhanced water conservation
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• New or expanded water storage • Ground water storage • Water marketing • Modifications to existing operations and facilities • Fish passage • Fish habitat enhancement Efforts were renewed in 2010 when the group reconvened using funds from the Bureau of Reclamation’s WaterSMART program, as well as matching funds provided by Washington’s Department of Ecology, to perform a more intensive review of its 2009 agreement. Technical analysis was performed to evaluate the merits of each project at a conceptual level. As of March 2011, 100 percent of working group representatives agreed on the specific projects that should be advanced, and HDR is currently completing the final documentation before the two governmental agencies advance the project to the next phase. The existing relationships HDR and its fellow consultants maintain with the various parties proved essential to reaching consensus. HDR has worked in the Yakima Basin since 1999—completing work under a state watershed management program—and its understanding of each stakeholder’s bottom line issues bred trust. Effective coordination among the consultants under HDR’s direction was particularly vital, because each maintained relationships with different entities participating in the process and retained varied areas of expertise.
The collective analysis performed by HDR and its subconsultants included updating the Bureau of Reclamation’s RiverWare model to project two scenarios— one in which the basin implemented the integrated plan, and a second without the plan. By evaluating each of these scenarios, the group could gauge the joint impact of the seven elements combined. The group also performed analysis to estimate the potential increases in steelhead and salmon populations, and it further evaluated the effects on the region’s agricultural economy. Despite this progress, much work remains to be done. Now that the working group has developed its priorities, the two governmental agencies will move forward to update the basin’s most recent planning report and environmental impact statement. These are key steps toward ultimately gaining necessary funding—an estimated $4.1 billion over 15 to 20 years—to complete the projects included in the integrated plan. Andrew Graham is an associate vice president and the Washington area integrated resources lead for HDR. He can be reached by e-mail at Andrew.Graham@hdrinc.com.
Roza Dam on the Yakima River, Washington. Irrigation Leader
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Success Of Colorado Recovery Programs Provides Local Control, Continued Water Delivery By Chris Treese ccompanied by other state and local organizations, the Colorado River Water Conservation District supports coordinated efforts to recover endangered fish species and actions to prevent additional listings. However, these programs do much more than just ensure a healthy river ecosystem for fish recovery—they create an environment that allows for the continued use and development of water resources and many times provides efficiencies as a side benefit. The horror stories of regions that have neglected to foresee the impact of declining native fish populations and other environmental effects are abundant. Family farm operations have been lost as federal authorities apply the mandates of the Endangered Species Act (ESA) to recover fish, and future development of resources has been curtailed as environmental concerns trump water project planning. While recovery efforts have certainly impacted Colorado River water use in other states— water originally destined for human use has been redirected to benefit environmental goals— proactive efforts have allowed Coloradans to avoid a similar fate. Buttressed by the Upper Colorado River Endangered Fish Recovery Program and the state’s Species Conservation Trust Fund, Colorado water resource managers continue to make significant progress in maintaining as much local control as possible and to head off federal intervention. For example, Colorado water users are generally able to skip ESA’s Section 7 consultation requirements because of the Recovery Program. This benefit shields them from unilateral action by the federal government to impose water use restrictions because alternative, upfront efforts were made to ensure the continued recovery of listed fish. Beyond the environmental benefits, infrastructure constructed to assist recovery efforts often plays a dual role, also helping water managers do their jobs more efficiently. Programs that install SCADA systems, check structures, and reregulating reservoirs to benefit fish can concurrently be used as valuable tools to help regulate system water levels and conserve water. However, in many respects, the success of the recovery efforts in Colorado could also be viewed as its greatest detriment. Water users, landowners, and everyday citizens fail to recognize the time, dedication, and resources devoted to the state’s proactive recovery efforts. Those that may not support money spent towards fish recovery fail to recognize the protection it affords. Every Coloradan benefits from the proactive efforts taken to support species recovery. Without them, water delivery could be curtailed, productive agricultural land may be fallowed, and even urban drinking water supplies might be restricted. Continued beneficial use of diverted river water and future development of scarce resources depend on sustained species recovery efforts that produce demonstrable results. It is impossible to know what would have happened had Colorado not taken steps upfront to curtail the loss of native fish species and help them recover. Yet we have seen the toll taken in other communities and must understand the critical benefits our state programs bring to Colorado.
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Chris Treese is the director of external affairs for the Colorado River Water Conservation District in Glenwood Springs, Colorado. He can be reached by phone at (970) 945-8522, or by e-mail at ctreese@crwcd.org.
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Action Necessary to Combat Unnecessary Restrictions on Herbicide Application By Jim Skillen s budgets tighten across all levels of government, state and local government entities cannot afford the cost of unnecessary regulation. Yet the impact of a recent federal court decision, and EPA’s reaction to it, will create an unnecessary compliance exercise for irrigation districts that apply herbicides to keep canals and ditches free of weeds. In 2009, the Sixth Circuit Court of Appeals overturned a three-year-old EPA rule exempting herbicides applied according to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) from the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permit process. Promulgated in response to the Talent decision, EPA’s rule applied common sense to federal herbicide regulation by exempting applications conducted according to FIFRA from NPDES requirements. However, the court’s ruling spawned a new rulemaking process that has left herbicide applicators cornered in the face of onerous new requirements and enforcement capabilities. The new permit program governing pesticide and herbicide use will be the single biggest expansion in the history of the NPDES program. It will cover more than 5.6 million applications per year by more than 365,000 applicators – far more than Congress ever intended when it originally passed the Clean Water Act. Each of these applicators will now be required to develop management plans and comply with annual reporting requirements they may be ill-equipped to handle due to existing budget shortfalls. In addition to compliance costs themselves, applicators may face fines of up to $37,500 per day per violation, and the minimum fine of $11,000 could be applied even for simple paperwork mistakes. These fines may steal resources from the primary mission of irrigation districts at a time when many are already struggling with maintenance costs. Yet the enforcement of these new rules will provide no incremental environmental benefit as districts have long acted according to the EPA-approved FIFRA requirements that already regulate the timing and amount of herbicide that can be applied. Perhaps most importantly, however, subjecting herbicide applications already conducted according to FIFRA to
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the NPDES process will open applicators to citizen-led lawsuits. FIFRA only allows for government enforcement of its requirements. In contrast, the Clean Water Act allows private interest groups to sue applicators. Effectively, any use of herbicide could face a court challenge that will, at the least, result in attorney’s fees accrued to respond to the group’s initial complaint. Though the new requirements were originally scheduled for effectiveness in April 2011, the court recently granted another stay of its ruling that will expire October 31. Granted to allow states and applicators additional time to develop and understand compliance protocols, the stay has concurrently provided a short window of opportunity to legislatively mitigate the impact of the decision. While a number of proposals have been made, a bill recently passed by the House of Representatives, H.R. 872, appears to have the best chance of success. The bill would exempt any pesticide or herbicide applications conducted under FIFRA requirements from the NPDES process. H.R. 872 received bi-partisan support at the committee level and passed the House by a vote of 292-130. However, much work remains in the Senate. Though the Senate Agriculture Committee recently approved the bill in a voice vote, its passage by the full body is certainly not assured. Your continued engagement through grassroots action is essential to helping your state senator understand the potential impact of expanding NPDES regulations on the agricultural economy, including your exposure to citizen law suits under the Clean Water Act. An online Senate contact tool can be found at the following address http:// capwiz.com/croplifeamerica/home/ by clicking the green "take action" button under the featured alert on "NPDES Fix" legislation. Jim Skillen is the director of science and regulatory affairs for RISE (Responsible Industry for a Sound Environment) in Washington, D.C. He can be reached by phone at (202) 872-3860, or by e-mail at jskillen@pestfacts.org. Irrigation Leader
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Richard Reinke
Reinke Manufac
turing facility in
1954.
Reinke Manufacturing
Maintains Farming Community Roots
B
efore Richard Reinke founded Reinke Manufacturing Company in 1954, he was like many other young men growing up in a farm community. One of 11 children, he prided himself on a do-it-yourself attitude and constantly tinkered with farm equipment. “He always had a love for building things, doing things with his hands,” said Russ Reinke, Richard Reinke’s son and first vice president of the company. “He always felt that no matter the gadget, he could improve it.” Although he only had an eighth-grade education, the elder Reinke sought to expand his knowledge with what little money he had. He became a church organist and used the income he received from that job to purchase a used correspondence course on mechanical engineering. Reinke Manufacturing began small, as a builder of laminated wooden rafters for farm buildings. The business gradually increased to include churches, retail facilities, and Quonset buildings and other farm structures. Today, the business is a multinational supplier of irrigation equipment, with over 180 full-service irrigation dealers throughout the United States and Canada, as well as nearly 60 international distributors selling into more than 25 countries. Although its reach is global, the company has maintained the farming community roots its founder established. Still based in Deshler, Nebraska, a small town of under 1,000 residents near the Kansas state line, 20
Reinke Manufacturing prides itself on its strong ties with surrounding agriculture. “We are very proud that we have been able to compete in an international market yet keep our business based in rural Nebraska. We are currently printing payroll to over 50 different zip codes, which proves that we pull a high-quality, rural workforce from throughout south-central Nebraska and north-central Kansas,” says Reinke. “Most of our employees have an association with farming,” said Reinke, noting some employees still actively farm. “They know what’s important to the farmer and what he expects.” The company views these roots as an asset over larger, public corporations. “Because we’re sitting here in rural Nebraska, we are more connected with what is going on,” Reinke said. “It makes for a good recipe to meet the needs of the farmers.” These ties led the company to be the first mechanized irrigation manufacturer to successfully integrate GPS technology into the management of center pivots, lateral move machines, and swing arm corners. However, its ties to the community extend much further than product development. For example, the company created a first-ofits-kind welding training program in surrounding counties. “Welders in general are typically in short supply,” Reinke said. “We decided to be proactive and help alleviate that situation by assisting people to learn a very viable trade.” Irrigation Leader
Current Reinke Manufacturing facility.
Because there are no large trade schools in the Deshler area, the company worked with three local high schools to implement and house this welding program. Facilities were outfitted with state-of-the-art equipment in partnership with major welding equipment suppliers, and night classes are also held to accommodate the continuing education of interested adults. “We’re very proud of that because it allowed highschool kids to train and actually become certified welders,” Reinke said. “They can come out of high school and hit the ground running.” Reinke Manufacturing benefits from this local program as it provides a ready supply of skilled workers for its mostly local operations. “It’s just a great bunch of folks. . . . We’re very blessed to have them as part of our organization,” said Reinke, noting the company’s emphasis on manufacturing locally. “We make everything feasible in Deshler, Nebraska, and our small electrical assembly operation in Belleville, Kansas.”
Russ Reinke
For more information on Reinke Manufacturing, visit its website at www.reinke.com.
Reinke Manufacturing in-house welding class. Irrigation Leader
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Oklahoma Water Resources Board Integrates State Water Planning, Financial Assistance By J.D. Strong hus far, Oklahoma has been largely immune to the problems encountered by many western states. We have very few systems in which our water resources are close to being fully allocated and largely have not yet dealt with the difficult issues shortages can bring. However, eyeing the future, we know that we must now prepare for the problems already encountered by our brethren in other states. The Oklahoma Water Resources Board’s (OWRB's) forthcoming update to the state’s comprehensive water plan intends to do just that. Though not yet finalized, the update to the water plan aims to develop a sound and progressive water future for Oklahomans. In the final two years of the update, OWRB has been working to blend public input with the science, technology, and engineering information already compiled. A model for many of our peers, this process will help to ensure our state is well prepared for the future. While developing this update is a key first step, we know that planning alone cannot solve difficult water challenges, and implementation will be of particular importance. Thankfully, our predecessors had the foresight to establish a financial assistance program to fund vital water and wastewater system improvements that has become essential as budgets are increasingly strained. Since its inception from the 1980 comprehensive water plan update, the OWRB financial assistance program has provided almost $2.5 billion in revolving loan and grant funding to local water projects. The program’s mission is simple; our AAA bond rating allows us to provide long-term financing at interest rates lower than local entities would be able to achieve on their own in the marketplace. Today, this program accounts for more the 80 percent of the state’s water and wastewater infrastructure construction, and is essential to the continued vitality of Oklahoma’s local and statewide economies. Originally intended to ensure that the growth of rural Oklahoma was not hamstrung by a lack of water and wastewater infrastructure, the fund has grown from its initial capitalization of around $20 million to serve as the primary financing vehicle for diverse infrastructure projects throughout the state. Additionally, OWRB has teamed with sister agencies in Texas and Kansas to promote regional unity in dealing with federal funding issues. For too long, the overly complex federal priority system has prevented the development of important water-related initiatives. Water planning at the state level, which better reflects the specific needs of communities, should be granted more weight in the selection of appropriate projects and in the disbursement of associated federal funding. The challenges we face are too daunting to ignore those on the ground who are developing critical solutions to our water problems and needs. Throughout its history, the ORWB has remained committed to enhancing the quality of life of Oklahomans through sound water management. Our comprehensive water plan update, accompanied by the state’s existing financial assistance program and enhanced funding solutions, will help us to maintain our commitment in the coming decades.
T
J.D. Strong is the executive director of the Oklahoma Water Resources Board in Oklahoma City, Oklahoma. For more information on OWRB, visit its website at www.owrb.ok.gov. 22
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District Focus
Belle Fourche Irrigation District Implements Creative Solutions to Deal with Aging Infrastructure, Modernize District Facilities
O
riginally authorized in 1904, South Dakota’s Belle Fourche Project was completed 1914. Since that time, only one broad maintenance effort has been undertaken—from 1985 to 1996—leaving a portion of the project with aging infrastructure that has never seen a significant overhaul. “It is a constant battle to keep up,” said Belle Fourche Irrigation District (BFID) Manager Clint Pitts. “We’ve got things that have been recommended to be fixed for 40 years.” However, BFID, which operates the project, hopes to partially finance more necessary repairs locally through the creation of an account set up last year and funded by supplemental water assessments. “We set up an account just for emergency fixes down the road,” said Pitts, noting that the account will initially be funded by an additional $2-per-acre assessment totaling approximately $115,000 this year. “It is set up so it gets a 10-cents-an-acre increase yearly,” said Pitts. “Hopefully that 10 cents an acre is enough to offset increases in the cost of living and
material costs.” Although Pitts noted that BFID has had past success with grant applications, he believes the fund will serve the dual role of supporting future funding requests to federal and state government entities that increasingly request proof of independent financing efforts. “Every time, they really want to know what we’re doing to help ourselves,” he said. Pitts noted that the new fund was not an easy sell to all farmers, many of whom are already paying increased power and gas bills. “I had to sit them down and explain that if we don’t do this, the district won’t be viable in the next 20 years,” he said. “Hopefully, the emergency fund will turn into a good way of doing business.” In addition to the added expenses, farmers in the area are struggling given the region’s recent wet cycle. “Our project does best when it is dry. . . . Hay is our biggest cash crop,” Pitts said, noting the lower prices received by farmers when wet conditions decrease demand for hay. “This is a huge issue that helped to create the lack of cash available.”
BFID used 40 mil rubber pond guard lining in is open canals to conserve water. The 50 feet wide by 200 feet long sheets are very heavy and require numerous people to lay out a single piece. 24
Irrigation Leader
A stand-alone automation site holds the canal level upstream of a check in a remote location. Relying on solar power, the automation makes adjustments every ten minutes.
BFID uses a real-time automated head-gate and measurement system to control canal level at a major lateral serving 7,500 acres of the 60,000 acre project.
Despite these challenges, BFID continues to incrementally enhance project efficiency through automation and other measures. In recent years, the district has added automation capability to 30 check structures and 23 real-time measurement and control structures throughout the district. “Now, the ditch rider doesn’t have to check three to four times a day, and the canal levels are sitting where they are supposed to be all the time,” Pitts said, noting that this is just the beginning of a decades-long project to automate the entire district. “We’ve conserved countless acre-feet of water through automation.” Funding for automation is largely provided through the Belle Fourche River Watershed Partnership, a cooperative effort formed by BFID and three surrounding counties that has spent $20 million in the last five years on efficiency projects. The partnership began as an effort to keep uncontrolled return flows out of the river to decrease sediment deposits, but has expanded from its original mission. “Every time we get a chance, we try to pick up another funding source,” said Pitts. Additional water conservation efforts undertaken by the district include piping and lining open canals. BFID generally pipes 1–2 miles of canal each year and uses a rubber product to line around a mile annually. Pitts noted that previously, about 8 cubic feet per second (cfs) seeped from the project’s inlet canal, but today it only loses about 3 cfs. “Once again, we’re preparing for the dry season that will come,” he said. Clint Pitts is the manager of the Belle Fourche Irrigation District in Newell, South Dakota. He can be reached by phone at (605) 456-2541, or by e-mail at bfid1@sdplains.com.
BFID relies on a constant head orifice structure for accurate water measurement and control of a major lateral. Prior to installing automation, it would take two hours to manually adjust the structure every day. Now, adjustments are made constantly to keep a steady flow in the lateral. Irrigation Leader
25
Water Law
Wetlands 101 for Water Users:
26
What Irrigation Leaders Should Know About Expanding Federal Jurisdiction Under the Clean Water Act By Kent Holsinger, Esq. he Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) propose to significantly expand the scope of their jurisdiction under the federal Clean Water Act (CWA). On May, 2, 2011, the agencies issued proposed guidance that would consider even dry stream beds and isolated wetlands “navigable” waters subject to permitting under Section 404 of the CWA. See 76 Fed. Reg. 24479. With increasing urbanization and energy development in the arid West, some water providers could be caught in a wider regulatory net. Under Section 404 of the CWA, the Corps issues permits for the “discharge of dredged or fill material.” Jurisdictional determinations regarding which waters fall within Section 404 have long been controversial. The CWA currently affects traditionally navigable waters: interstate waters, wetlands adjacent to these waters, relatively permanent nonnavigable tributaries connecting to traditionally navigable waters and wetlands abutting these tributaries. The new guidance seeks to include intermittent and ephemeral drainages and all other waters that have a “significant nexus” or lie adjacent to traditionally navigable waters—even if they are physically isolated. Under the proposed guidance, a “significant nexus” exists if there is physical, chemical or biological connection between the two waters. But even wetlands with no physical connection to navigable waters could be considered jurisdictional if some minute connection exists with, for example, migratory waterfowl. Furthermore, water that is “similarly situated” to jurisdictional waters, such as wetlands located in the same watershed, would be subject to Section 404 permits. The proposed guidance will increase jurisdiction over waters that have been traditionally been considered nonjurisdictional. For example, roadside and agricultural ditches would be defined as “tributaries” where: they have a bed, bank, and ordinary high water mark; connect directly or indirectly to a traditionally navigable or interstate water; and have one of the following characteristics:
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• natural streams that have been altered • ditches that have been excavated in waters of the United States, including wetlands • ditches that have relevantly permanent flowing or standing water • ditches that connect two or more jurisdictional waters of the United States • ditches that drain natural water bodies (including wetlands) into the tributary system of a traditional navigable or interstate water. Generally, construction, operations, and maintenance of irrigation facilities are exempt from permitting requirements under Section 404 of the CWA. Section 404(f ) exempts, “normal farming, silviculture, and ranching activities,” or “construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches.” See 33 U.S.C. § 1344(f )(1)(A)-(C). Should irrigation districts care if the federal government casts a larger regulatory net? In a word—yes. Water bodies that were once considered nonjurisdictional could now be subject to federal regulation. Isolated wetlands or drainages that carry water only seasonally could now be subject to CWA jurisdiction—particularly in the West. With civil penalties of up to $25,000 per day for each violation, expanded jurisdiction is not to be taken lightly. See 33 U.S.C. § 1344(s). Many facilities that were authorized and constructed for irrigation now also carry water for municipal, industrial, recreational, or environmental uses. Will the agencies require 404 permits for ditch maintenance or construction if the municipality owns a portion of the ditch company? What if a ditch is subject to a carriage contract? How are roads or rights of ways associated with the ditches treated? What role with EPA be taking in such determinations? EPA’s aggressive attempts to assert authority under the CWA have been called into question in federal court recently. See National Mining Ass’n v. Jackson, 10-1220 RBW (D.D.C.). Even if the agencies do not assert CWA jurisdiction, environmental groups could bring lawsuits over their own interpretations. See, i.e. Irrigation Leader
The Montezuma Valley Irrigation Company has replaced miles of laterals with more efficient pipelines. New federal guidelines could impact such work.
Butte Env’l Council v. U.S. Army Corps of Engineers, 09-15363 (9th Cir., 2010). All of these things could result in additional costs and delays on projects that encounter isolated wetlands or ephemeral drainages. Besides 404 permitting, where listed species or their habitat could be present, consultation with the U.S. Fish and Wildlife Service will be required under the Endangered Species Act (ESA). Consultations can result in delays and additional expenses. In Colorado, one single consultation over one listed species took one year and cost the client $1 million and $285,000 in annual monitoring costs. Annual compliance costs for the ESA have been estimated at $3 billion per year. And one single environmental group, WildEarth Guardians, has petitioned to add over 700 species to the endangered species list since 2007. Congress and the states have long recognized that water use and adjudications are state matters. See McCarran Amendment, 43 U.S.C. § 666. Thankfully, efforts to expand federal jurisdiction have stalled in Congress. But the executive branch is increasingly pushing new policies through its administrative agencies. The stated objective of this guidance is to expand federal jurisdiction under the CWA following the U.S. Supreme Court decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. U.S. (Rapanos). Permitting for water projects that involve ditches, isolated wetlands, Irrigation Leader
or ephemeral streams could become much more challenging as a result. Ironically, EPA and the Corps released the CWA guidance within four months of an executive order aimed at reducing red tape and 45 days of an xxecutive order on reducing government waste. See Executive Orders: Improving Regulation and Regulatory Review, ( Jan. 18, 2011); Delivering an Efficient, Effective, and Accountable Government, ( June 13, 2011). In its current budget request, the Corps has asked for $162 million for permitting and jurisdictional determinations under the CWA. The guidance, as well as information about commenting on the draft, can be found online at: http://www.usace.army.mil/CECW/Pages/nnpi.aspx. For more information, please feel free to contact us. Holsinger Law, LLC represents clients on lands, wildlife, and water law matters. Its work has been recognized in the Wall Street Journal, Washington Times, CNN.com and on National Public Radio, among many others. Kent can be reached at (303) 722-2828 or at www.holsingerlaw.com. 27
Water Law
Engaging Early and Effectively on Endangered Species Listing Decisions
28
By Joe Nelson
W
estern water interests are keenly aware of the adverse effects on water supply management that often result from the protection of threatened and endangered species under the Endangered Species Act (ESA). Today, approximately 1,370 species are protected under the ESA, with a disproportionate number of those species residing in the western states. On May 16, 2011, the United States Fish and Wildlife Service (FWS) announced a proposed settlement with an environmental plaintiff, WildEarth Guardians. The proposed settlement directs the FWS, between May 2011 and October 2012, to complete initial 90-day and 12-month petition reviews on over 600 species. The FWS also would be required to complete listing reviews on 251 candidate species over the next five years. A majority of the species covered by these reviews are native to the western states. For the candidate species reviews, these species have already been determined to warrant listing. Thus, if this proposed settlement becomes final, the number of protected species under ESA likely will soar by at least twenty percent over the next five years. Further, the proposed listing review commitments may become even more far-reaching. FWS is still negotiating with a second environmental plaintiff, the Center for Biological Diversity (CBD). A recent June 16th settlement report to a federal district by FWS indicates that a second settlement, augmenting the first proposed settlement, could be finalized in the near future. CALL TO ACTION: ENGAGE EARLY IN PETITION AND LISTING PROCEEDINGS Western water interests and other potentially affected interests should organize and engage early in the forthcoming species review processes. Historically, private sector engagement on ESA matters has occurred primarily after listing, when federal agencies and resource users face compliance requirements such as Section 7 consultations, regulations regarding “take” liability under Section 9 of the Act, the designation of critical habitat and the development of Section 10 habitat conservation plans. However, by engaging earlier through active involvement in the petition review and listing process, potentially affected interests may be able to lessen the burden of ESA compliance and maybe even avoid a listing. Passively waiting and reacting to the listing of potentially 250 or more species through ESA compliance strategies will place resource users at a disadvantage. But what is involved in the petition review and listing processes and how can you effectively participate? THE PETITION REVIEW AND LISTING PROCESS Under Section 4, a species must be designated as
either threatened or endangered when it is determined that, based on the best available scientific and commercial information, the species’ continued existence is threatened or endangered by one or more of the following factors: • present or threatened destruction, modification, or curtailment of its habitat or range; • overutilization for commercial, recreational, scientific or educational purposes; • disease or predation; • inadequacy of existing regulatory mechanisms; and • other natural or manmade factors affecting its continued existence. The WildEarth settlement covers FWS decisions on various elements of the listing process, including initial 90day and 12-month reviews of listing petitions, candidate species reviews, proposed and final listing determinations, and critical habitat determinations. Each of these aspects of the listing process has unique timing and proof elements. • Petition Reviews: Once a listing petition is received, FWS makes an initial 90-day review as to whether the petition presents substantial scientific or commercial information that the proposed listing is warranted. If a positive “90-day finding” is made, FWS initiates a 12-month review as to whether listing the species is either “warranted,” “not warranted” or “warranted, but precluded” by higher-priority activities. “Warranted” species are proposed for listing; species determined to be “warranted, but precluded” are treated as “candidates” for listing. • Candidate Reviews: The candidate review process evaluates threat factors to the species and considers whether those factors, individually or in combination, pose a current or potential risk to the species and its habitat. In the recently-announced WildEarth settlement, FWS has committed to numerical targets for review of candidate species over a six year period—averaging over 50 candidate species reviews per year. After a review, the FWS must submit either a proposed rule for listing or a “not warranted” finding, which would end a species designation as a candidate species. • Proposed and Final Listing Rules: If a 12-month finding or candidate review results in a finding that listing is warranted, FWS must publish a proposed rule for listing and request public comment. A final decision on listing must be made within one year of publication of the proposed rule. • Critical Habitat Designations: Concurrent to any final listing rule, FWS must designate critical habitat, to the maximum extent practicable. This critical habitat designation is intended to cover geographic areas that FWS determines to be essential for the conservation of the listed species and requires special management and protection. Before designating critical habitat, FWS must Irrigation Leader
consider economic impacts, impacts on national security and other relevant impacts of such a designation. Moreover, FWS may exclude an area from critical habitat where the impacts of the designation are outweighed by its economic impacts. Each of these reviews includes a process for public comment and submission of relevant information. While each may be slightly different, the comment submission periods typically are between 45 and 90 days. Specifically, FWS will seek information on the species’ biology, range, habitat needs, and population trends as well as the presence or absence of the statutory factors required for designation of a species. EFFECTIVE ENGAGEMENT IN THE PETITION REVIEW AND LISTING PROCESS Pay Attention to the Efforts of Environmental Advocacy Groups Environmental organizations are often transparent about their upcoming initiatives. For example, CBD first started working in 2004 on its public campaign to list the polar bear due to alleged threats from climate change. In February 2005, CBD filed its petition for listing the polar bear. The actual determination to propose polar bears for listing occurred in December 2006, with the final rule issued by FWS in May 2008. Environmental advocacy groups continually identify new species for potential listing and develop comprehensive strategies to achieve their listing. Speeches, reports, studies and other public announcements by leaders in the environmental community can provide early warning as to ESA issues that stakeholders may encounter in the future. Start Early One of the most significant challenges with respect to commenting on ESA listing petitions and proposed rules is the limited public comment window. Unless commenters prepare in advance, a comment period of 45 to 90 days can often preclude the development and compilation of the necessary data for submission into the administrative record. This is especially the case where the collection of data on species’ presence, absence or range requires seasonal surveys that cannot be planned and implemented in the time provided for public comment. Meet with Local, Regional and Federal Offices The petition review, listing and critical habitat designation processes require input at local levels as well as expert review by listing program officials in regional offices and the national headquarters office in Washington D.C. Meeting with only one contact or office leaves communication of your message and information to the discretion and capability of agency employees—who have multiple competing demands and resource constraints. Further, the issues and concerns that may be raised with a local official may be significantly different from the nature and purpose of a discussion with a regional officer or political appointee in Washington. All contacts can serve to build a case for requested action by FWS on the particular petition review or listing determination. Become Familiar with Databases and Other Publicly Available Information on Targeted Species Web-based databases are an increasingly cited source for data in listing petitions and decisions. One prominent database is “NatureServe,” which describes itself as a Irrigation Leader
non-profit conservation organization that works with an international network of biological inventories (mostly natural heritage programs or conservation data centers) within North America, Latin America and the Caribbean to collect and compile local information on plants, animals and ecosystems. Another frequently cited source is the International Union for the Conservation of Nature, which maintains a classification system highlighting species considered to be at a high risk of extinction. The species reviews and petitions covered by the WildEarth settlement are publicly available. Stakeholders have the ability to begin reviewing species of concern to their particular region, assessing the information that is presently available regarding the species’ biology, range and overall health, identifying where data gaps exist, and determining whether certain data may be particularly probative for an appropriate determination on the species’ status. Assessing this information early, rather than waiting for an announcement of the public comment period, will allow interested parties to develop comments that create the necessary administrative record support for stakeholder positions regarding the appropriate petition or listing determination. Strategic Engagement FWS does not merely make an “up or down” decision regarding whether to protect a species under the Act. Rather, FWS must make a range of decisions, including, whether a species warrants protection as an endangered or threatened species across all or a portion of its range, whether critical habitat can be determined practicably, and, if a threatened designation is made, whether a special Section 4(d) “take” rule should be developed in lieu of the blanket application of Section 9 take prohibitions. When engaging with FWS, stakeholders need to consider not only whether a species should or should not be listed, but also a number of details about the listing. FWS has discretion in the design, scope and nature of the listing determination—particularly in the application of “take” rules for threatened species and the scope of any critical habitat designation. Further, a well-designed rule, accompanied by agency guidance, legal opinions and other tools within FWS discretion, may provide sufficient flexibility in the application of the ESA that resource operations, such as water diversion, conveyance, storage and use, can be complementary to, not in opposition with, efforts to protect and recover those species. Joe Nelson is a member of Van Ness Feldman P.C., an energy and environmental law firm with offices in Washington, D.C. and Seattle, Washington. Joe provides legal counsel and governmental affairs representation on federal environmental permitting and natural resource matters, including compliance with the Endangered Species Act. Joe can be reached at 202-298-1894 or by email at jbn@vnf.com 29
The Innovators 30
Biodegradable Polymers Create Root-Zone Reservoir
Tim May with polymer hopper on top of eightrow potato planter.
F
ive years ago, Frenchman Valley Produce in Imperial, Nebraska, began using a biodegradable polymer product to help conserve water at the root zone of potato crops growing in sandy hilltop areas. Historically, these areas were unproductive and required around 15 percent more water to ensure plant health than other areas of the field. “It came down to water holding capacity,” said Tim May, the company’s president. “It definitely was a visual, as well as a physical difference” once the polymers were used. The technology for the starch-based polymer used by Frenchman Valley Produce has been patented since the 1970s, but was not exploited commercially until 2003. “No one could figure out how to make it in an economical way that a grower could use,” said Steve Carlson, the western region sales manager for Zeba, the brand name of the product. Eventually, Carlson’s company, Absorbent Technologies, built a manufacturing facility in Oregon capable of creating the polymer on a broad scale. “We start out with an unmodified cornstarch from Cargill and run it through a saponification process, kind of like soap making,” he said. “It comes out as a dough that we grind down.” Zeba effectively functions as a mini-reservoir for crops situated in plots of land with poor water retention. The polymer absorbs water and holds it for plants to continue to feed on in the future instead of allowing it to permeate further into the soil structure. Then, in 9–14 months, soil microbes break the product down. “It helps to keep your plant healthy,” said May. “Once you lose some plant health, it’s like a cancer, it will spread throughout the field.” Carlson indicated that potato farmers throughout the West are obtaining similar results. “They want to change the irrigation schedule to reduce the environment for disease,” he said. “Now they can irrigate on the dry side and still keep the plant healthy.” May’s company started using Zeba after completing a variable rate grid sampling study on its fields and saw polymers as an opportunity to maintain an even irrigation rate across its acreage, even on the sandy soil found on hilltops. “We’re changing the water holding capacity with the use of polymers on acres with a poor holding capacity,” he said.
Dry granular polymers immediately expand when introduced to water.
Zeba’s initial testing indicated that 25 percent deficit irrigation when applying the polymer will provide an equivalent yield to full irrigation without it. “It’s hard to quantify . . . Every grower irrigates differently so it varies widely,” Carlson said, noting that the company is in the midst of performing additional research. Though currently used primarily for potatoes, Carlson indicated the product could be used for any number of crops, including corn. For more information on Zeba, visit its website at www.zeba.com. Irrigation Leader
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Integrated Water Planning, Permitting, Design, Optimization & Construction Services
2011 CALENDAR
John Maxwell, P.E. 360.570.4400 www.hdrinc.com/water
July 21-22
Irrigation Assn., Water Conference, Broomfield, CO
July 25-27
National Water Resources Assn., Western Water Seminar, Colorado Springs, CO
July 27-29
Western States Water Council, Summer Council Meetings, Bend, OR
Aug. 23-25
Colorado Water Congress, Summer Conference, Steamboat Springs, CO
Sep. 25-27
Nebraska Assn. of Resources Districts, Annual Conference, Kearney, NE
Oct. 12-14
Texas Water Conservation Assn., Fall Meeting, San Antonio, TX
Oct. 13-14
Oregon Water Resources Congress, Water Law Seminar, Bend, OR
Oct. 19
Columbia Basin Development League, Annual Meeting & Conference, Moses Lake, WA
Oct. 26-28
Wyoming Water Assn., Annual Meeting, Casper, WY
For more information on advertising in Irrigation Leader magazine, or if you would like a water event listed here, please phone (703) 517-3962, or e-mail Irrigation.Leader@waterstrategies.com. Submissions are due the first of each month preceding the next issue.