Volume 8 Issue 6
June 2017
Modernizing Aging Irrigation Infrastructure in El Paso: A Conversation With Jesus Reyes of El Paso County Water Improvement District #1
Modernizing and Making Improvements By Kris Polly
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his issue of Irrigation Leader examines the work and ideas of unique individuals who are intent upon modernizing and making improvements. While they have diverse backgrounds and professions, they are all thinkers and doers, and positive people. Mr. Jesus “Chuy” Reyes has quietly modernized the El Paso County Water Improvement District #1 over his 14-year tenure as general manager. With an irrigation farming background and having served on the board of directors of his district before becoming manager, Chuy’s experience and people skills have served him well in building partnerships and working well with others. Much can be learned from his collaborative approach. Montana State Senator Mike Lang shares his knowledge of the Milk River Project and its tremendous potential for further development. Congressman Dan Newhouse informs our readers about the Columbia River Treaty between the United States and Canada and the need for updating the agreement. Alan Hansten, general manager of the North Side Canal Company reports about the completion of his district’s successful hydro project with Mavel turbines. We have followed Alan’s project with great interest for several years. Mr. Rick Reinders, a true leader in the water pump world, shares his thoughts on quality control and customer
service. Ms. Julie O’Shea of the Farmer’s Conservation Alliance talks of their holistic approach to irrigation, hydro development, and working with local communities. Our “Innovators” section contains an article about the billing challenges faced by Glenn-Colusa Irrigation District and how Mr. Randy Agnew and his custom software development company, Wolven, was able to improve the district’s services. Kent Holsinger and Sarah Ostby of Holsinger Law, LLC, shed light on the ongoing practice of “sue and settle” between various environmental groups and the federal government. A shameful cottage industry at the expense of taxpayers. Finally, Sharon White and Chuck Sensiba of Van Ness Feldman share some hopeful information on legislation to improve irrigation districts abilities to develop hydropower. We hope you enjoy this issue of Irrigation Leader magazine and thank you for your continued support. 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 of representing and guiding water, power, and agricultural entities in their dealings with Congress, the U.S. Bureau of Reclamation, and other federal government agencies. He may be contacted at Kris.Polly@waterstrategies.com.
Tour the St. Mary Diversion Project in Montana and the St. Mary River Irrigation District in Alberta
August 14-15, 2017
Lt. Governor Cooney, with support from the St. Mary Rehabilitation Working Group, will be conducting a two-day tour of the the St. Mary Diversion Project in Montana and the St. Mary River Irrigation District in Alberta. Attendees will include members of the Montana congressional delegation, and the Bureau of Reclamation. The tour will highlight the importance of the project in the region and the economic development opportunities available in Montana. For more information or to register to the tour, please contact McCall Flynn, from Lt. Governor Cooney’s office, at (406) 444-3111.
Monday, August 14 - Montana Portion of Tour Tuesday, August 15 – Canadian Portion of Tour 2
Irrigation Leader
JUNE 2017
C O N T E N T S 2 KP column By Kris Polly
VOLUME 8
ISSUE 6
Irrigation Leader is published 10 times a year with combined issues for July/August and November/December by Water Strategies LLC 4 E Street SE Washington, DC 20003 STAFF: Kris Polly, Editor-in-Chief John Crotty, Senior Writer Matthew Dermody, Writer Robin Pursley, Graphic Designer Capital Copyediting LLC, Copyeditor 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. For more information, please contact John Crotty at (202) 698-0690 or John.Crotty@waterstrategies.com. ADVERTISING: Irrigation Leader accepts one-quarter, half-page, and full-page ads. For more information on rates and placement, please contact Kris Polly at (703) 517-3962 or Irrigation.Leader@waterstrategies.com. 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 at Irrigation.Leader@waterstrategies.com. Copyright © 2017 Water Strategies LLC. Irrigation Leader relies on the excellent contributions of a variety of natural resources professionals who provide content for the magazine. However, the views and opinions expressed by these contributors are solely those of the original contributor and do not necessarily represent or reflect the policies or positions of Irrigation Leader magazine, its editors, or Water Strategies LLC. The acceptance and use of advertisements in Irrigation Leader do not constitute a representation or warranty by Water Strategies LLC or Irrigation Leader magazine regarding the products, services, claims, or companies advertised.
COVER PHOTO: Jesus “Chuy” Reyes, General Manger, El Paso County Water Improvement District #1. Irrigation Leader
4 Modernizing Aging Irrigation Infrastructure
in El Paso: A Conversation With Jesus Reyes of El Paso County Water Improvement District #1
12 Moving Forward on the Milk River Project: A Conversation With Montana State Senator Mike Lang
16 Clock Ticking on Renegotiation of Columbia River Treaty
By Rep. Dan Newhouse
20 Making Hydropower Operational on the North Side Canal
By Alan Hansten
BUSINESS LEADER
22 Making Water Work Smarter: A Conversation With Rick Reinders of Watertronics
THE INNOVATORS
26 Farmer’s Conservation Alliance: Bringing Irrigators and Communities Together to Upgrade Hydropower Systems
By Julie O’Shea
30 Bringing Water District Billing Into the 21st Century With Wolven Software
WATER LAW
34 Sue-and-Settle Litigation: Gaming the System and Obstructing True Conservation
By Kent Holsinger, Esq., and Sarah Ostby
36 Emerging Policies Affecting Hydropower
Development and Water Supply Infrastructure
By Sharon White and Chuck Sensiba
Follow Irrigation Leader magazine on social media /IrrigationLeader @IrrigationLeadr 3
Mr. Reyes next to the Partidor headgates along El Paso County Water Improvement District #1’s Riverside Canal, which runs adjacent to the famous border fence constructed during the Bush administration in the El Paso area.
Modernizing Aging Irrigation Infrastructure in El Paso:
A Conversation With Jesus Reyes of El Paso County Water Improvement District #1
A
s economics and demographics change, resources and infrastructure must change with them to meet the needs of the population and conserve resources. El Paso County Water Improvement District #1 (EPCWID #1) understands this concept well and has invested heavily to upgrade and modernize its irrigation systems to keep up with an expanding and urbanizing population. The EPCWID #1 serves 69,010 irrigated acres of pima cotton, pecans, alfalfa, and winter onions. The district’s 103 employees cover 400 miles of canals and 350 miles of drains across a territory that ranges 58 miles as the crow flies from the New Mexico border to the Hudspeth County line. Jesus “Chuy” Reyes has been involved in irrigated agriculture all his life, having grown up on a farm. He served on the district’s board of directors before taking on the role of general manager 14 years ago. Since becoming general manager, he has sought to modernize the district to allow it to better serve its customers and community. Mr. Reyes spoke with Irrigation Leader’s editor-in-chief, Kris Polly, about the importance of updated infrastructure; the rewards and challenges of collaborating with local, state, federal, 4
and international stakeholders; and how a unified vision for the future has yielded benefits all across the district’s operations. Kris Polly: What is EPCWID #1’s main source source of water? Jesus Reyes: The Rio Grande is the district’s only significant source, although we do have 62 wells that we drilled 10 years ago when we had a severe drought situation. We only use the wells when necessary to supplement our Rio Grande water during droughts. The wells are approximately 100 feet deep within a stable water table that is 80–100 feet below ground. The table comes from many years of irrigating nearby farmland. EPCWID #1 also receives 26,000 acre-feet of treated sewer water from the city of El Paso. Kris Polly: Is most of the farmland within EPCWID #1 flood irrigated? What kind of effort has there been to expand the use of laser leveling and other similar technologies in the district? Irrigation Leader
Jesus Reyes: Yes, it is. We have a program with funding from the federal and state governments that allows farmers to laser level their land and line some of their ditches with concrete. It has been successful. Many farmers are partaking of the program on a yearly basis, which has advanced conservation and improved water delivery. Our operating agreement with the Elephant Butte Irrigation District and the U.S. Bureau of Reclamation also allows us to keep any water that we conserve as a result of that program and carry it over to the next year. Kris Polly: What is the current state of EPCWID #1’s water infrastructure? Jesus Reyes: When I became general manager 14 years ago, our infrastructure was quite old and consisted mostly of earthen canals. I have been seeking state and federal grant money to invest in concrete lining for our canals, particularly the main arteries where homes and businesses have been built nearby. There is always a concern about canal breaks or ruptures, so we have been working to improve that.
Irrigation Leader
Many of our head gates have been completely upgraded and equipped with solar panels. Cameras overlooking canals and head gates are also being installed so we can monitor them from our dispatch office, along with warning devices to alert us if the water level becomes too high. Those systems allow us to dispatch crews to the scene quickly to assess and repair any damage. There is also a three-way system alarm that will alert us when the water is too low, just perfect, or too high. Those alarms go to our ditch riders’ phones as well as to our supervisors. An extreme alarm can also go to our assistant district managers and me. The alert system is a program developed by my engineer. It is tied into our telemetry system and operates using solar power. Our dispatch and water manager’s offices will be able to control the gates when the ditch riders cannot safely access the earthen banks during rainy weather. We will soon have 15 cameras installed, and our goal is to install an additional 15 next year. Kris Polly: Besides addressing aging infrastructure, what are some of the other challenges facing the district?
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Jesus Reyes: We had a big challenge during the Bush administration when the border fence went up. The issue was where the fence would go, given the fact that we have many canals that run directly parallel to the Rio Grande. We did not want the fence to split or leave some of our infrastructure on the south side, which would impede our employees’ ability to reach them. But the fence was installed to our satisfaction in terms of location, and it has protected our workers from encountering smugglers when working in remote areas late at night or early in the morning. Working with a variety of different agencies and stakeholders is another challenge. We deal with two federal agencies, Reclamation and the International Boundary and Water Commission (IBWC). Reclamation controls Caballo Dam and Elephant Butte Dam, and the IBWC oversees the Rio Grande. A 1906 treaty with Mexico also requires the IBWC to ensure that water is delivered to Mexico. We have excellent working relationships with the Elephant Butte Irrigation District, Mexico, and the two federal agencies. There are monthly meetings at which all parties gather together to discuss any issues that may arise. Kris Polly: How has title transfer helped the district modernize its infrastructure? 6
Welding a gate in the EPCWID #1 shop. The district does most of its fabrication and maintenance in-house.
Jesus Reyes: When our district repaid the federal government for the buildup of the Rio Grande Project, the titles to all canals, drains, and offices were signed over to the district. Title transfer has helped tremendously in our modernization efforts. We wanted our property to deliver water to customers and the city of El Paso as efficiently as possible, and we are proud that we have been able to make the necessary upgrades to do so after receiving the title. Kris Polly: How has expanded urbanization affected your maintenance and operations? Jesus Reyes: Urbanization has led to inevitable complaints about waste or dead animals in canals and drains. The drains Irrigation Leader
American Canal Extension and heading of Riverside Canal.Â
are important both for agriculture and the removal of stormwater, so any obstructions can be very problematic for us and for the city. We have joined forces with El Paso Water to establish an educational program to convince the public to not dump garbage into canals or drains. We have also added two engineering assistants to our staff who do nothing but patrol our canals and drains to search for encroachments. We also have an in-house engineering office with a licensing division for anyone who wants to cross one of our canals. Kris Polly: What are your long-term goals for the district? Jesus Reyes: Modernization continues to be one of our top priorities. EPCWID #1’s board of directors has been willing and able to supply us with the tools and equipment we have asked for to maintain and upgrade our systems. We are now lining canals with concrete each year and have a 5-year plan to continue doing that. All the work is done in-house. We also have five mechanics and a shop that does all our equipment and vehicle repair. Our welding shop builds all our own head gates, and 85 percent of that construction is done in-house. Kris Polly: What would be your advice to other managers who are looking to undertake projects similar to those you have completed? Jesus Reyes: I would welcome them to come visit our project, to see our upgrades, new facilities, and improved Irrigation Leader
technology. We are proud of what we have achieved, and we feel we have emerged as a leader among districts in the Southwest. It has taken great cooperation between our management team and the board of directors to get where we are, but it has been worth it. We have proven to the board that we can get the work done in-house and save a lot of money in the process. Other districts may want to consider adopting a similar approach, if possible. 7
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Moving Forward on the Milk River Project: A Conversation With Montana State Senator Mike Lang
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he Milk River Project is one of the most unique irrigation projects in the country: Water is conveyed across an international border from Montana to Canada and back to Montana, where it then crosses tribal lands. It is also one of the oldest Reclamation projects and requires extensive work to keep the century-old system functioning and viable for the future. Montana State Senator Mike Lang has been an advocate for the Milk River Project during his time in the state legislature, and he has worked to increase project support and funding. He has also sought to increase cooperation on both sides of the border and learn from the successes Canada has realized from its investment in production agriculture. 12
Montana State Senator Mike Lang spoke with Irrigation Leader’s editor-in-chief, Kris Polly, about the importance of the Milk River Project to his constituents, his efforts to bring the project to fruition, and the role enhanced production agriculture can play in Montana’s future. Kris Polly: Please describe your district. State Senator Mike Lang: I represent Senate District 17 in northeastern Montana. Our western boundary is where the Milk River comes into the state from Canada. The district runs all the way to the North Dakota border. Over 20,000 people live there.
Kris Polly: How long have you been in the Senate? State Senator Mike Lang: I am beginning my second term in the Senate, and I served two terms in the state House of Representatives before that. I previously worked in agriculture as a consultant for 35 years, but I am now a full-time legislator. Kris Polly: What can you tell us about the Milk River Project and what you have done for it over the years? State Senator Mike Lang: I was one of the earliest supporters of Milk River Project. It was started under the initiative of former Montana Lieutenant Governor Karl Ohs, who has since passed away. Unfortunately, there has been little rehabilitation construction. One of the unique challenges is that the project crosses several borders. The water is siphoned into the Milk River, leaves Montana, crosses into Canada, comes back into Montana, traverses two reservations, and brings irrigation to over 120,000 acres before it flows into the Missouri Irrigation Leader
River at Nasuha, Montana. The Milk River services about 14,000 people in municipalities that purchase water. Kris Polly: What should our readers know about your efforts in the Montana Senate to gather funding and support for the project? State Senator Mike Lang: We have secured funds so we can market the project and obtain some assistance with the costs, which fall heavily on the irrigators. Operations and maintenance funds, which are paid by the irrigators, are a critical element of a project. Presently, their share is 75 percent of the operations and maintenance, and that is something we need to address. The other challenge we face is water rights. When the project was developed, many people did not establish water rights on the Milk River because they had committed themselves financially to be water right users in the St. Mary system. People can pull water directly from other rivers, like the Yellowstone or Upper Missoula, because they have private property water rights, but that is not so on the Milk River. That makes more people dependent on the Milk River system than any other system in the state. Kris Polly: In August, you and a group of other legislators will be going on a tour organized by the lieutenant governor’s office to Canada. What aspects of the project do you hope tour participants learn about? State Senator Mike Lang: Another unique characteristic of the Milk River Project is that it is close to the 49th parallel, so the growing seasons are short. In the past when we did not have water supply guarantees, a lot of the land was used to grow only alfalfa or other grasses. It did not make sense to invest heavily in land that could not be guaranteed water. We hope to improve on that front and better secure the project’s future, and the tour will show us what Canada has done in that regard. The Canadians have done tremendous things with their water, and we will examine different soils to see how they are growing cash crops in clay and sandy areas near the Milk River. That kind of agriculture increases the value of the water and the land, so hopefully we can get people excited to do the same here in Montana. The Canadian government has also stepped forward financially to help advance its part of the project. We need to adopt the Canadian mindset of aggressive diversification of crops. Advances in production agriculture, such as no-till farming, present great opportunities for Montana. I was an irrigator in the Milk River system. We need to create a positive attitude toward production agriculture. A constant supply of water is a good first step toward Irrigation Leader
incentivizing the investment needed to make that happen. Kris Polly: What is your message to agricultural producers, processors, and investors about this tour in Canada? State Senator Mike Lang: We are probably at the bottom level of agricultural scale in the United States. Perhaps we have to start at the bottom and entice producers to increase crop and cattle production. More efficient use of the water system is one of the keys to achieving that goal. Kris Polly: What should every member of Congress know about the Milk River Project and your efforts to further it? State Senator Mike Lang: The Milk River Project has been on the back burner for too long. The system could fail at any time unless the work is finished. If the system fails, the Milk River will go dry, which could have a number of negative effects on our region. The Milk River is a source of fish, game, and other wildlife, and it provides recreational and sporting opportunities in addition to supporting agriculture. This infrastructure rehabilitation is a must for Montana. Efficient use of water should be a national investment. The state of Montana has stepped up in a lot of ways to move the project forward. Our lieutenant governor, Mike Cooney, is in charge of the committee doing that, and we need to continue to move forward. The irrigators have shown they are willing to do so by charging themselves more, but it cannot be done under the current structure. The cost allocation needs to be reversed so that the irrigators only have to shoulder 25–26 percent of the cost rather than the current 74–75 percent. The message to Congress is that we can get this done. The system was constructed 100 years ago and remains an engineering marvel. However, we need to rehabilitate the system and increase its efficiency. The Milk River irrigators have invested for 100 years. We need to create efficiencies with modern engineering and less government restraints. It’s time to say, “We can, together.” 13
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Clock Ticking on Renegotiation of Columbia River Treaty By Rep. Dan Newhouse
W
ith a length of more than 1,200 miles, the Columbia River is the largest river in the Pacific Northwest and forms one of our most precious natural resources. This single geographic feature defines the quartermillion square mile area of Washington, Oregon, Idaho, and Montana comprising the Columbia Basin, which includes much of the Pacific Northwest. The Columbia River Gorge is one of the wonders of the West. Beyond the stunning beauty of the river, the Columbia’s hydropower and renewable energy production, irrigation for agriculture, and habitat for wildlife determine our way of life. The region’s economy depends on managing the flow of the river and the many resources it provides for our urban and rural communities. The importance of the river and the agreement with our northern neighbor, Canada, which governs power production, water storage, and flood control, cannot be overstated. The Columbia River Treaty (CRT) was first established in 1964 to provide a framework for the U.S. and Canada to work together to improve the Columbia and its tributaries’ power generation, flood 16
control, and water storage capacity to benefit both nations. The Treaty has successfully managed the river over the course of the 20th Century, but after more than 50 years, this agreement between two friendly nations must be modernized to reflect the changing needs of the Columbia River Basin in the 21st Century. Renegotiation of the CRT is a key opportunity to correct imbalances and inequities that have arisen over time. Under the CRT, either the U.S. or Canada may choose to terminate most provisions on or after September 16, 2024, by providing a ten-year advance notice. Ten years may seem like a long time to renegotiate a treaty, but the clock started ticking in 2014, and progress has been very slow despite repeated requests from the bipartisan Pacific Northwest delegation in Congress. It is time to get serious about Irrigation Leader
correcting current imbalances and ensuring we have a fair and equitable arrangement with Canada. According to the terms of the CRT, British Columbia constructed three dams in order to provide flood control, regulate downstream flows, and increase hydroelectric production. Canada provides flood control in exchange for compensation derived from power generated by U.S. hydropower facilities. Commonly referred to as the “Canadian Entitlement,” this Treaty provision has become increasingly inequitable to the U.S. over time. Due to the outdated formula of sharing half of U.S. power generation downstream, some estimates show that Canada receives almost ten times the benefits that Pacific Northwest interests receive from coordinated system operations, according to studies conducted by the U.S. Army Corps of Engineers and Bonneville Power Administration (BPA). This imbalance costs us hundreds of millions of dollars annually. U.S. interests pay Canada between $250 million and $350 million each year, which is passed on to the 6.4 million Northwest electricity customers, represented by more than 80 electric utilities and other entities, who receive power from the BPA and the Mid-Columbia Public Utility Districts. The payments have clear impacts on power rates paid by Pacific Northwest consumers. Unsurprisingly, Canada seems to be in no hurry to renegotiate the terms of the CRT, while the U.S. clearly needs a better deal. Along with the State Department, the U.S. Army Corps of Engineers and BPA serve as the main “U.S. Entity” representing the United States in treaty negotiations with Canada. Substantial analysis by the U.S. Entity and federal agencies indicates the United States does not receive the reciprocal benefits originally expected in the CRT, with usable streamflow for hydropower generation well below the amount assumed for in calculation of the Canadian Entitlement. Unless the CRT is terminated or renegotiated, the U.S. would remain obligated to pay Canada for power coordination benefits, leading the Pacific Northwest region to face losses of approximately $1 million every two to three days. Additionally, under any scenario, the CRT must never be used to threaten the operational flexibility of hydropower projects covered by the Treaty, which are the largest sources of clean, renewable power in the region. The Grand Coulee and Chief Joseph dams in Washington are particularly critical to the hydropower
Irrigation Leader
system, representing about 46 percent of generating capacity and 80 percent of active storage capacity on the U.S. Columbia River. Any effort to use treaty provisions to limit the power production capability of these sources of hydropower would be unacceptable. There is a way to bring Canada to the table for renegotiation to modernize the CRT. Article XIX of the CRT clearly states that commercial aspects of the treaty associated with joint optimal power coordination and its associated benefit splitting are allowed to be terminated via unilateral action by either country. The CRT thus allows either side the option of asserting “exit provisions” to renegotiate or terminate these commercial provisions by 2024. Under the Obama Administration, efforts to renegotiate the CRT moved very gradually. The U.S. Entity sent its recommendations on renegotiated terms to the State Department in 2013, which included revision of the Canadian Entitlement. I joined colleagues on both sides of the aisle in Congress to prod the administration along. Finally in October 2016, President Obama’s State Department officially notified the Canadian government of its desire to engage in discussions on the CRT. That commitment is still valid under the Trump Administration, which is why I recently led a bipartisan letter with my colleague, Rep. Kurt Schrader (D-OR), to President Trump urging his administration to use every available negotiation option, including a Notice of Termination, to initiate formal negotiations with Canada as soon as possible. For half of a century, the Columbia River Treaty has served as a model of international water management. My hope is that with improvements to the Treaty, the U.S. and Canada can strengthen their mutual commitment to manage the Columbia and its resources on truly equal terms. I urge the current administration to act quickly to ensure that the U.S. receives a fair deal in a modernized Columbia River Treaty.
This op-ed is adapted from a letter sent by Rep. Newhouse and House colleagues to President Trump on June 21, 2017. Rep. Newhouse represents Washington’s Fourth Congressional District.
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Water flowing down the spillway and the eight Mavel turbines on the U Canal hydropower plant.
Making Hydropower Operational on the North Side Canal By Alan Hansten
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fter 2 years of planning and construction, the U Canal hydropower plant came online in early June 2015. While we still have more work to do before we can finalize the project, our experience thus far has been positive and has given us optimism for the future. U Canal has been running consistently for nearly 2 years, except for shutting down for the winter from October to April. The turbines have performed well and have met our expectations. The plant’s eight turbines, made by Mavel in the Czech Republic, generate 1.28 megawatts of power using 1,200 cubic feet of water per second. Mavel installed them quickly because they were an off-the-shelf design that already existed, thus mitigating the need for a separate turbine design process. The turbines were simply bought and installed, and they fit very well within the physical size of the project. They are optimized to operate in 20 feet or less of head, which matches the conditions we have at the U Canal. One person generally handles most of the plant’s dayto-day operations. To simplify the operations even further, we hired a local firm to build a separate control panel that interfaces with Mavel’s components and centralizes all that information. The phone line connections in that area are poor, so we have to use wireless Internet, and we have partnered with the local communications company. We own one of the radio tower sites, and it includes an Internet connection system. The control system is mobile and enables us to link the plant’s primary control system to our smart phones. We can turn generators on and off remotely from our phones if necessary. We also can receive alerts and alarms on mobile devices as well.
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Integrating With the Grid
We have also been able to successfully connect the plant to the Idaho electrical grid. We coordinated with Idaho Power Company, the utility we connect and sell our power to. The grid integration process involved several phases. First, Idaho Power had to perform an initial feasibility study along with a more detailed facility study and issue a report on the estimated cost of connection. Once that was completed, the generator interconnection agreement was initiated. That agreement established the price and security payment North Side had to make in order for Idaho Power to actually build the interconnection that would connect the plant to the grid. The next step was the energy sales agreement, which is a standard form required statewide. Some terms are negotiated from developer to developer as the process goes through the public utility commission, and some will change or be updated as time goes on. Right now we are working with another group of small hydropower producers in Idaho to examine the energy sales agreements and modify some of them to make things easier for small power producers. Each year, we must estimate what our power production is going to be for a given month 2 months in advance. If our production is less than 90 percent of the estimate, Idaho power pays us surplus power rates. If we make more than 110 percent of the estimate, all our energy up to the 110th percentile is paid at our contract rate and the rest is paid at surplus power rates.
Current Challenges
While the plant’s operations have been largely successful, there have been some challenges to overcome. One of the biggest difficulties has been the management Irrigation Leader
A look at the plant from above (left) and up close (right).
of debris coming down the canal. Pond weeds gather at the screen flats and become attached, are pushed up to the surface, and form a roll that stays in place. There have also been some intermittent electrical issues inside the building. We are able to run despite the intermittent issues, which are actually more challenging to fix than total failures or breakages. When the problem is not consistent, it is more difficult to locate the source of the issue. But for the most part, the project is performing as we had planned and has been financially successful. We are still investing money to feed the plant right now. We understood that for at least the first 5 years, we would have to put up money to help the project make its loan payments. The cash flow should begin to moderate and reverse itself after that time. During planning, we added the initial capital costs to the operations and maintenance costs over a 20-year period to perform a present-value analysis. The goal has been for the project to be paid off within 20 years, after which time the company will begin to see the financial benefit from the power plant.
Lessons Learned
It is important to remember that investing in hydropower projects like U Canal is a long-term investment decision. The most significant lesson we learned from this project has been that although it may take some time before the benefits of the decision are fully realized, it is still wise to move in that direction. Patience and long-term vision are critical for the success of projects like ours. The other lesson is the benefit of the additional revenue from hydropower. Those funds will help us to continue investing in the future of the canal system. We are operating four other power plants in cooperation with the developers, which have allowed us to hold our operations and maintenance costs down. We are then able to reinvest the money we save back into infrastructure projects to
Irrigation Leader
help upgrade and improve dams and canals. Hydropower revenue allows us to invest in beneficial projects without the need for government loans or grants, thus giving us more flexibility.
Continued Improvements
Looking toward the future, we are encouraged by the results we have seen thus far from the U Canal project. We hope to bring additional hydropower online, but right now we have a lot of other projects in the works, so that particular effort has been placed on the back burner. There is still at least one project out there that has development potential, but we are in a state of flux due to the new plant we have built. We have been cutting our teeth on that for the past 3 years and will be taking ownership of another plant in 2018. Once that happens, we will be able to operate it ourselves rather than have the developer continue to run it. Our goal is to reduce our reliance on outside contractors as much as possible. The continued development of this project will allow us to multiply the benefits it will provide to our customers in Idaho. Affordable, efficient, and plentiful hydroelectric power will boost local economies, save families and businesses money, and help to preserve our natural resources. We hope the success of U Canal can serve as an example to others in Idaho and beyond who may be thinking about undertaking similar projects. Alan Hansten is the general manager of the North Side Canal Company. For more information about the U Canal hydropower project, please contact Mr. Hansten at ahansten@cableone.net. Mr. Hansten originally wrote about his project in the April 2015 issue of Irrigation Leader. 21
Business Leader Making Water Work Smarter: A Conversation With Rick Reinders of Watertronics
R
ecent advances in pump technology have provided irrigation districts with options to conduct operations more efficiently and save on energy costs. Watertronics is one of the companies leading the way in developing newer and better pumps and other system components. The company also offers innovative consulting, financing, training, and customer support services to help irrigators and system operators get the most out of the products they purchase. Rick Reinders, president of Watertronics, spoke with Irrigation Leader’s editor-in-chief, Kris Polly, about how pumping systems have evolved, how technology has improved efficiency for manufacturers and customers, and how Watertronics strives to support and stand by its customers before and after a sale is made. Kris Polly: How has water pump technology changed since many irrigation districts first began installing pumping systems? Rick Reinders: Just like any mechanical device, pumps lose efficiency over time. Wear and tear on passageways or propellers can cause inefficiencies. There is a big difference between products that were produced 20 years ago and those being made now. Motor efficiencies have improved dramatically. Efficiency levels can now reach as high as 98 percent. The U.S. Department of Energy and other federal agencies have encouraged the other obvious improvements: the restatement of pump curves and the application of uniform efficiency and performance standards from the Hydraulic Institute. What used to
Watertronics uses inverter-duty, premium efficient vertical hollow shaft motors to optimize energy efficiency.
Rick Reinders, president of Watertronics, leading a training session at Watertronics' Hartland, Wisconsin, facility.Â
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Irrigation Leader
be a marketing curve is now a curve that a designer or engineer can rely on for performance. These changes have also encouraged pump companies to improve the efficiency of their products, and many have redesigned or remanufactured their molds, which can wear out over time. Older pump stations were originally designed with less-efficient technology than we have now and may not be optimized for modern applications. For example, many older, pressure-restricting devices were meant to just hold back pressure, rather than adjust the speed of the pump, which is now a standard design feature that reduces pressure more easily. The market now has more efficient replacement options than ever before. There are also opportunities for improvement in the implementation of control strategies that ensure a user has the right pump selected for the right duty point at that time. Many systems use multiple pumps, so knowing when to switch on the correct pump and ensure that you have the correct amount of horsepower available to meet demand is very important. Managing pressure precisely with the correct mitigating devices is also critical. We use cloud-based monitoring and closed-loop control to look at field requirements and water delivery points and adjust the output at the pump station accordingly. Many pump stations operate at maximum pumping pressure all the time, rather than adjusting based on the conditions, which wastes energy. We have developed a Dynamic Demand Control system that looks at sensors in the field and relays that information to the pump station. It helps ensure that enough power is used to meet demand at the destination, but no more than that. Now the system can selfregulate and adjust the energy used to do what is needed. This represents a paradigm shift for pipebased systems and can result in significant power savings for operators.
the pumping equipment. We look at how the operator is using the water, which is really a different approach. Normally, the pump seller does not ask about how the system is being operated as a whole, or how the water use can be adjusted to increase overall efficiency. What ties that all together is a telemetry package with some rules associated with it. We monitor the kilowatts a pump station uses, as well as the flow that it puts out. If we know those things, we can come up with an efficiency rating with the proper amount of kilowatts per acre-feet that needs to be pumped. Customers can then monitor the efficiency rating to obtain a proper perspective on where efficiency can be improved. Users can also set up rules that will cause the system to alert them if their efficiency drops below a certain level. Power use and efficiency data can be compiled into a chart that allows the user to see how well the system has operated over long periods of time so that patterns can be identified. This kind of systematic information and monitoring is probably the most powerful tool that we have provided to operators in the last 20 years. Kris Polly: How long does the evaluation process take, and how much does it cost? Rick Reinders: It usually takes at least 1 day per pumping plant. It could be longer if there are multiple piping systems that need to be monitored.
Kris Polly: Does Watertronics offer a systems analysis for irrigation districts? Rick Reinders: We do. We bring our engineering teams to the site and perform an assessment of Irrigation Leader
Watervision remote monitoring delivers real-time information by location.
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In general, we do not charge for 1-day evaluations. If it is a case where the customer is looking for engineering reports or a more detailed consultation, we will bring in our sister company, IRZ Consulting, or SPF Water, both of which have the independent consulting capability to give the customer what they need. Kris Polly: Does Watertronics help customers determine which pumps or other parts need to be replaced first as part of the consultation? Rick Reinders: Yes, we do. That part of the consultation could involve placing metering equipment on a pressure transducer or conducting a vibration analysis on the pipes to see the overall performance. Kris Polly: What kind of testing and quality control is done on components before they leave the Watertronics facility? Rick Reinders: Our testing for every part includes vibration analysis, pump performance, wire-to-water efficiency, and certified performance testing. A copy of the performance certificate is shipped with each pump.
Prior to shipment, Watertronics performs full dynamic flow, pressure, and operation testing on all its pump systems.
Kris Polly: When the system is installed, do you send your people to install it?
Kris Polly: Do you offer any kind of training at your plant in Milwaukee?
Rick Reinders: Yes. We have our own Pump Service Network–certified group that goes to the site for commissioning, operator training, and handoff. The technicians are available to support the user throughout the life of the system.
Rick Reinders: We do. In fact, we have multiple training sessions each year. To be Pump Service Network certified, a technician must come to the factory every 2 years for training. We also offer custom training for different types of dealers and technicians based on the products they sell or markets they serve. Generally, we underwrite much of the cost of the training itself, leaving just a small fee and travel expenses to be paid by the customer or irrigation district. We hold our largest training session for irrigation districts each January, when the districts are not irrigating. We also offer also another training class in November, after many farmers and irrigators are finished with crops for the year.
Kris Polly: Do you offer financing if an irrigation district is in urgent need of a large amount of equipment? Rick Reinders: We do, and we have some very compelling options, especially for quasi-governmental agencies that borrow based on their revenue stream rather than the value of the asset. If an agency borrows for pumping equipment and its revenue stream ceases, there is no further obligation to the district. The equipment will have to be repossessed, but it lessens the risk. Kris Polly: Do you have any means of customer support that allows operators to reach out to you for help if they have a problem with the equipment? Rick Reinders: Yes we do. We have a Pump Service Network hotline that customers can call 24/7 to get any help they need. They can easily reach a real person—a technician—who can guide them toward a solution. 24
Kris Polly: What should all irrigation districts in the 17 western states know about Watertronics products and services? Rick Reinders: The most important point is that power costs are going to continue to increase, and operators’ revenues may decline because people are becoming more efficient in their use of water. Users will either have to raise their rates or make efficiency improvements, and the latter area is where we have focused much of our research and development efforts. Irrigation Leader
WATER MANAGEMENT. SMARTER. Watertronics™ custom pump systems integrated with FieldNET™ remote management puts you in total control. Gain fast, easy access to your entire irrigation operation.
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For more information on FieldNET telemetry and Watertronics pump solutions, call 1-800-356-6686 or visit www.watertronics.com.
© 2017 Lindsay. All rights reserved. Watertronics and FieldNET are trademarks of the Lindsay Corporation.
The Innovators
Farmer’s Conservation Alliance: Bringing Irrigators and Communities Together to Upgrade Hydropower Systems By Julie O’Shea
D
eveloping and implementing innovative, collaborative solutions to irrigation issues is always a challenge, but doing so is vital to the future of many communities in the West. This was the impetus for the Farmer’s Conservation Alliance (FCA). Irrigation districts need to upgrade their systems to better serve their customers, the local community, and the environment, but they often lack the resources or knowledge to do so. FCA’s goal is to provide districts with the expertise, guidance, and collaboration needed to modernize irrigation and hydropower infrastructure in rural communities.
Building the Model
Through our early work with fisheries, we found many barriers to hydropower, including a lack of fish screen infrastructure. Farmers Irrigation District (FID) was the first district we worked with. It was seeking to broaden the use of the horizontal fish screens it had developed for its irrigation system in collaboration with tribes, regulatory agencies, and other stakeholders. FID’s leaders helped establish FCA and licensed the technology to us so we could spread the use and adoption of the fish screens. We took the collaborative experience of that process and used it to develop what is now called the Irrigation Modernization Program. We built our operational model off work we did for FID, Three Sisters Irrigation District, and several other districts. When we looked at how complicated modernization is, we found that it took FID 30 years to complete its project. Three Sisters replicated the model FID established and was able to complete the process in 20 years. FCA now has 16 total employees and is working with 16 irrigation districts; 5 other districts are considering joining us. Our guiding principle is to partner with local stakeholders and consultants because they have the knowledge of what it will take to complete a particular project. There are some things that we can and should do in-house, but there are also many tasks that our partners know how to do better. Our goal is to take advantage of our partners’ knowledge base. Our program seeks to capture the knowledge and experience of district managers and
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leaders who went through those processes and transfer it to other districts. Many district managers and board members have been working their entire careers to finish these projects, and we want to leverage that experience.
Process and Analyses
Before we partner with an irrigation district, we evaluate several criteria to ensure that their project and process are compatible with our own. The first factor we look for is whether the district’s manager and the board of directors have the same views regarding hydropower and modernization. If everyone is not on the same page regarding goals and objectives, they may not be ready to move forward. The district must also demonstrate a willingness and ability to partner and work collaboratively with us and other stakeholders on mutually beneficial solutions. We begin by working with the district to figure out its modernization goals and objectives, which is often to install a pressurized pipe system. Once we know those goals, we design everything with them in mind. We perform LIDAR (light detection and ranging) and GIS (geographic information system) mapping of the whole system. It helps to know what we are dealing with upfront, and it keeps the cost of construction down. The next step is to conduct a water loss survey of the district’s canal system. Many districts lose 20–70 percent of their water when it leeches out of the canals. Given that districts are paying to pump that water, they should get the most back from their investment. We then perform a hydraulic model of the irrigation system and map out the most efficient water delivery; the best energy conservation opportunities; and the locations with the greatest potential for renewable energy generation, including hydropower. We also analyze the financial benefit to the district, from both the increased revenue the hydropower can provide and the reduced maintenance and operational costs that will come from modernizing the system. A benefits analysis is also performed that examines potential benefits to water quality and quantity, community benefits, environmental effects, and economic development. All those analyses are compiled into a modernization strategy, which includes definitive options for how the Irrigation Leader
The following districts have participated in the FCA’s irrigation modernization program: Arnold Irrigation District Associated Ditch Company Burnt River Irrigation District Central Oregon Irrigation District East Fork Irrigation District Hudson Bay District Improvement Company Lone Pine Irrigation District Lost and Boulder Ditch Improvement District North Unit Irrigation District Ochoco Irrigation District Powder Valley Irrigation District Rogue River Valley Irrigation District Swalley Irrigation District Three Sisters Irrigation District Tumalo Irrigation District Upper Lostine Irrigators district should move forward. We also help districts obtain public grants and permits as needed. Given how much of the western United States has irrigated agriculture, if all irrigation districts made large investments in modernization and efficiency it would add up to a massive national investment that would greatly benefit communities.
Benefits of Collaborative Modernization
As our successes have grown, so too has the interest in adopting the FCA model of collaboration. Environmental groups are realizing that working with agriculture can allow their concerns to be heard about how projects will affect plants and animal species, while farmers and irrigation districts have learned that collaborating with environmental groups and regulatory agencies will reduce the barriers they will face to completing their projects. Obtaining buyin from the community gives all projects a greater chance of success and is a high priority for every project FCA is involved in. Some districts are still on the fence, however, about committing to modernization and hydropower, and we
Irrigation Leader
are constantly seeking to educate them on the benefits to taking on those projects. One of the big benefits of a modern irrigation or hydropower system is reliable water. Many districts are not able to get their full water rights allocation because their old, inefficient infrastructure is in disrepair and cannot deliver the water in the amount that is needed. Security is another benefit, as is having a system that complies with or exceeds environmental regulations and standards. More efficient systems will also reduce a district’s costs and save it money. Modern irrigation and hydropower benefits the district, farmers, power customers, local communities, and the environment. The success of efforts like ours helps convince other stakeholders and communities to try to achieve similar successes for themselves. We have seen a general excitement on the ground and a willingness to work together from different stakeholders. In the beginning, we worked in polarized environment, but there now seems to be a genuine desire to work toward solutions that work for everyone. For more information about Farmer’s Conservation Alliance hydropower consultation services, contact Executive Director Julie O’Shea at julie.oshea@FCAsolutions.org. 27
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The Innovators
Bringing Water District Billing Into the 21st Century With Wolven Software Located in Northern California, The Glenn–Colusa Irrigation District (GCID) is the largest irrigation district in the Sacramento Valley, providing water to 1,076 farmers across 140,000 irrigated acres. The district’s open ditch irrigation system was first constructed in the early 1900s, and even after decades of upgrades and system improvements, including the installation of Supervisory Control and Data Acquisition (SCADA), accurately tracking, assessing, and billing the water usage of customers remains one of GCID’s biggest challenges. At the dawn of the 21st century, GCID was looking to modernize its accounting and billing software. To do so, the district turned to Randy Agnew of Wolven to design a customized
system that would meet the district’s unique needs. GCID bills each farmer a flat fixed charge per irrigated acre, as well as a volumetric fee based on which type of crop is being grown. Customers who use more water are charged a higher volumetric fee. GCID’s Finance Director and Treasurer Dennis Michum explained that “the concept itself is not complex, but it remains difficult to find offthe-shelf software programs that can handle it effectively for us.” GCID’s relationship with Wolven goes back approximately 18 years and began when Mr. Agnew was doing contract work for a consultant in Sacramento providing Y2K computer fixes. At the time, GCID was using IBM mid-range computer
Screenshot of a Wolven general ledger inquiry.
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Irrigation Leader
Black Butte Reservoir
GCID Main Pump Station
32 £ €
Orland
Vicinity Map Glenn Colusa Irrigation District
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45 £ €
Stony Gorge Reservoir
£ € 162
Willows
£ € 162
Sacramento
Tehama Colusa Intertie Sacramento National Wildlife Refuge
Proposed Sites Reservoir
Glenn Co. Colusa Co.
Glenn Co. Colusa Co.
Delevan National Wildlife Refuge
East Park Reservoir
Maxwell Riv
er
Colusa
Legend
Williams
GCID
Colusa National Wildlife Refuge
20 £ €
§ ¦5 ¨
National Wildlife Refuge District Laterals GCID Main Canal Tehama Colusa Canal
20 £ €
Recapture Pumps Drain Outflow Meter Sites
Williams Cross Tie
Main Canal Checks (SCADA)
Sources: Esri, HERE, DeLorme, TomTom, Intermap, increment P Corp., GEBCO, USGS, FAO, NPS, NRCAN, GeoBase, IGN, Kadaster NL, Ordnance Survey, Esri Japan, METI, Esri China (Hong Kong), swisstopo, MapmyIndia, © OpenStreetMap contributors, and the GIS User Community
GCID is the largest irrigation district in the Sacramento Valley, serving 140,000 irrigated acres and 21,000 acres of federal wildlife refuges.
software written in RPG and had worked with Wolven on an ad hoc basis for technical support. Although the IBM system was stable, all the data entered into the software had to be batch processed rather than live posted. For example, if district employees were processing accounts payable, those paid expenses would not appear on the overall ledger until they were batched processed at the end of the month. Thus, it was impossible to access the general ledger and see realtime updates of the district’s overall financial situation. As the IBM hardware became obsolete, GCID found it increasingly difficult to obtain hardware and technical support. GCID issued a request for proposal to find better software options, and Wolven responded with a plan to custom build a software package. The district found this to be advantageous because of its unique water billing and accounting systems and its desire to have instant access to all information. Wolven’s system processes all data nearly instantly and compiles it into separate ledgers as well as a general ledger Irrigation Leader
that can show the district’s general financial status. “When we switched to the custom Wolven software system, everything became real-time, and all financial data was posted and calculated immediately. This allowed us to examine the general ledger at any time and assess the overall financial picture,” Mr. Michum said. GCID has found that one of the Wolven software’s biggest benefits is its ability to provide a comprehensive integrated system for multiple departments. The water management and accounting systems are fully integrated with each other and all the different ledgers, including accounts payable, accounts receivable, inventory, job costing, and payroll, as well as to the general ledger. The district has also found Wolven’s product to be flexible and able to be customized as needed. Mr. Michum said that Wolven can make changes to the software with little difficulty, and the software has proven to be stable as well. Mr. Michum added that GCID has never experienced a serious crash of its software system since it was installed. Any work that does need to be done on the system is done remotely by Wolven. Since installing the Wolven system, GCID has seen tangible benefits to its operations. Besides the ability to see the district’s financial picture instantly, the district’s staff has significantly reduced the amount of hours necessary to carry out billing and accounting tasks. The Wolven software also keeps the historical data electronically, thus saving time and paper for the district. “We used to keep reams and reams of IBM green bar paper full of printed data in binders, but now historical data is all stored electronically for as long as we want it, as opposed to only one year with the IBM software. That has been very beneficial,” Mr. Michum said. Another benefit of having the historical data is that it has allowed GCID to conduct analyses and analytics of its performance and water usage much more easily than before. The Wolven system allows district staff to export data from any report on the server and upload it into an Excel spreadsheet, a Word document, or a PDF document. This allows GCID to send PDF reports to anyone easily via print mail or email, or to use Excel to create tables, charts, or graphs to track and analyze trends. Overall, GCID has been very satisfied with the custom software package that Wolven has provided. It has saved the district time, streamlined its billing and accounting operations, and allowed the staff to better track its performance over time. Mr. Michum said that the district has found the Wolven product to be “a big step forward from what we had used before. It allows us to have a faster, more accurate, and more integrated billing system, which has helped us to better serve our customers.” 31
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Water Law
Sue-and-Settle Litigation: Gaming the System and Obstructing True Conservation By Kent Holsinger, Esq., and Sarah Ostby
O
ver the past several years, a small cadre of environmental groups, namely, WildEarth Guardians (WEG), the Center for Biological Diversity (CBD), and the like, has flooded the U.S. legal system with sue-and-settle litigation under the Endangered Species Act (ESA), as well as the Clean Water Act and the Clean Air Act. Relying on a two-step methodology of first submitting massive listing petitions and then filing onerous sue-andsettle lawsuits, these environmental groups subject the American public to the regulatory and financial repercussions of these litigious actions—without allowing that same public to participate in the settlement process. These lawsuits come with a big price tag at the expense of the taxpayers, who are burdened with the high costs of sue-and-settle litigation in triplicate. First, they must foot the bill of the attorney fees awarded to the environmental groups. In addition, taxpayer money funds the numerous massive settlements that conclude so many sue-and-settle lawsuits. Finally, compliance costs imposed by the resulting federal regulations further drain taxpayers’ wallets. Thanks to these lawsuits, we have also seen an increase in federal regulation. As discussed earlier, WEG and CBD have a long history of filing both numerous and overwhelming listing petitions with the U.S. Fish and Wildlife Service (FWS). In 2007, WEG submitted a single petition seeking to list 475 southwestern species, while another petition submitted the same year sought to list 206 species in the mountain-prairie region. A 2013 WEG petition sought to list 81 marine species. In a single 2010 petition, CBD petitioned to list 404 species. These mega-petitions (so termed by the U.S. Government Accountability Office) serve only to increase FWS’s workload and, by extension, the time
needed to review and subsequently make determinations on petitions. FWS has already struggled to carry out section 4 directives due to the high volume of litigation and petitions seeking to add a large number of species to the ESA. For example, in 2009 WEG sued FWS for allegedly failing to make 90-day findings on its own mega-petitions (674 species). It is not surprising that, when FWS must review and make determinations on such a large number of species at one time—in addition to any other petitions submitted to the agency—delays and missed deadlines will occur. A surge of lawsuits followed closely on the heels of these unreasonable petitions. In a February 8, 2016, article, Robert Jackson and John Eick for the American Legislative Exchange Council reported that sue-andsettle agreements had quintupled during President Obama’s administration (compared to previous administrations). The House Committee on Natural Resources named CBD and WEG in particular, (having filed 117 and 55 lawsuits respectively during 2009–2012), as repeat offenders. Collectively, these two groups have filed roughly 1,500 lawsuits since 1990. This trend continues. Environmental groups have seized on the inauguration of President Trump as their impetus for ramping up litigation efforts. CBD has filed or co-filed approximately 20 lawsuits against the federal government from mid-March to early June of this year alone. Many of these lawsuits have challenged executive orders or memorandums issued by President Trump in addition to Congressional Review Act bills signed by the president. Sue-and-settle litigation is staggeringly expensive. In a June 19, 2012, press release, the House Committee Irrigation Leader
In 2011, the WildEarth Guardians and the Center for Biological Diversity reached nonpublic settlement agreements with the U.S. Department of the Interior on a total of 878 species.
on Natural Resources reported that the federal government “defended more than 570 . . . [ESA-related] lawsuits,” which cost taxpayers “more than $15 million in attorney fees” during 2008–2012. Unfortunately, the true cost of sue-and-settle is impossible to ascertain, as neither the agencies nor the U.S. Department of Justice seems to keep track. In the majority of sue-and-settle cases, environmental groups are awarded litigation costs, including attorneys’ fees, at the taxpayers’ expense. A plaintiff ’s statutory right to be awarded litigation fees is not the issue—the problem arises when that right is so wantonly abused, as it has been by the environmental groups. During President Obama’s administration, more than $49 million was funneled to environmental groups as a result of sue-and-settle litigation. Further, a 2011 U.S. Government Accountability Office report found that three organizations had been awarded with 41 percent of this entire sueand-settle payback from 1995 to 2010. Legislation has been repeatedly introduced (but never enacted) that would curb sue-and-settle. In addition to the attorney fees, environmental groups like WEG and CBD often receive extensive funding from the federal government. A review of WEG’s annual reports (available on the organization’s website) reveals that the organization’s 2016 income totaled $3,789,258, Irrigation Leader
of which $800,104 was from government grants. This is an increase of $315,368 from the organization’s 2015 government grant income of $523,038. The National Resources Defense Council received at least $6.5 million in grants from the U.S. Environmental Protection Agency since 2000. The solution to this ongoing problem may lie with increasing involvement of the American people. First, the perverse statutory incentives to litigate must be changed. Other measures, such as the Sunshine for Regulatory Decrees and Settlements Act of 2017 (SRDSA) would require notice of lawsuits and settlement agreements in order to allow the public the opportunity to comment. SRDSA would also require transparency in accounting for the true cost of sue-and-settle agreements. Please ask your congressional delegations to address these problems and ensure that our scarce resources are spent on on-the-ground conservation work rather than needless litigation. Holsinger Law, LLC, represents clients on lands, wildlife, and water law matters. Its work has been recognized in the Wall Street Journal, the Washington Times, CNN.com, and on National Public Radio, among many others. Kent Holsinger is the managing partner and Sarah Ostby is a paralegal at Holsinger Law, LLC. They can be reached at (303) 722-2828 or at www.holsingerlaw.com.
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Water Law Emerging Policies Affecting Hydropower Development and Water Supply Infrastructure By Sharon White and Chuck Sensiba
C
onsistent with the Trump administration’s focus on infrastructure and significant work on hydropower reform during the last Congress, the early months of the 115th Congress have seen a flurry of activity to improve federal requirements related to hydropower licensing and permitting. The House and Senate have advanced a number of bills to promote and streamline hydropower development at new and existing infrastructure. In the House, one of these bills remains as a discussion draft at the writing of this article. All these bills have been subject to legislative hearings and are currently under consideration by their various committees of jurisdiction or before the full chamber. In the Senate, for example, S. 724 would extend preliminary permit terms from 34 years with the possibility of an additional 4-year extension in extraordinary circumstances. It also would extend the time to start construction of new projects to up to 10 years from the date fixed in the license or exemption. S. 724 was approved by the Senate Committee on Energy and Natural Resources on March 30, 2017, and is currently on the Senate legislative calendar. An identical bill, H.R. 2274, the Hydropower Permit Extension Act or HYPE Act, passed the House on June 12, 2017, and is now before the Senate for consideration. Also in the Senate, S. 1029 would amend the 36
Public Utility Regulatory Policies Act of 1978 and authorize the Federal Energy Regulatory Commission (FERC) to issue exemptions (similar to a mini-license or permit) to certain small, existing hydroelectric power projects that otherwise would need to obtain reauthorization from FERC following a lengthy and expensive relicensing process under the Federal Power Act. Two classes of small hydropower projects would qualify for an exemption under the bill: (1) projects that would qualify as a small power project exemption at an existing dam by, among other things, adding additional capacity to an existing project while maintaining the project’s total capacity to 10 megawatts (MW) or less; or (2) projects with an installed capacity of 15 MW or less for which a license was issued after June 19, 1991, and that are not located in an area determined to be critical to a listed species under the Endangered Species Act. In the House, a discussion draft bill titled The Hydropower Policy Modernization Act of 2017 includes many of the same regulatory reforms to hydropower relicensing proposed as part of the energy bills approved by the Senate and House in the last Congress. These provisions would, among other things, • designate FERC as lead agency for coordinating federal authorizations from all agencies needed to develop a project • require all such agencies to coordinate their activities and environmental studies early in the authorization process
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• direct FERC to work with agencies in developing a comprehensive schedule for final disposition on such authorizations • allow licensing participants to obtain a trial-type hearing before a FERC administrative law judge on disputed issues of material fact supporting mandatory license conditions imposed by certain resource agencies • streamline the process for obtaining certain types of FERC license amendments
H.R. 2786 would promote the development of small conduit hydropower facilities by significantly reducing the time and simplifying the process for FERC to make a qualifying conduit determination decision for certain conduit facilities. Under the current process, established by the Hydropower Regulatory Efficiency Act of 2013, certain qualifying conduit hydropower facilities require no license or exemption from FERC at all. For qualifying facilities, all that is required is a FERC decision that (1) the conduit is operated for distribution of water for agricultural, municipal, or industrial consumption; (2) the conduit is not federally owned; and (3) the hydropower facility uses the energy potential created by the conduit and has an installed capacity of no more than 5 MW. Under current law, FERC’s decision must be rendered within 45 days after it issues public notice of the developer’s filing of a notice of intent for the proposed facility. Under H.R. 2786, FERC’s decision is to be made within 15 days after it issues the public notice. The bill also removes the 5-MW limitation, which would allow larger conduit projects to qualify for the process. H.R. 2872, the Promoting Hydropower Development at Existing Non-Powered Dams Act, provides that FERC may grant an exemption for qualifying hydropower facilities at nonpowered dams. To qualify, the facility must not have been previously licensed or exempted by FERC; must be associated with a qualifying nonpowered dam; must be constructed and operated to generate electric power; and must use withdrawals, diversions, releases, or flows from the nonpowered dam. The bill protects existing water usage from the nonpowered dam by prohibiting FERC and other federal agencies from imposing any condition or requirement that will result in any material change to the flow regime at the nonpowered dam. The qualifying nonpowered dam associated with the new facility must be constructed as of the date of enactment; be operated for control, release, or distribution of water for agricultural, municipal, navigational, industrial, commercial, environmental, recreational, aesthetic, or flood control purposes; not be equipped with hydropower generating works under FERC’s jurisdiction as of the date of enactment; and be certified to meet FERC’s dam safety requirements. Irrigation Leader
H.R. 2880, the Promoting Closed-Loop Pumped Storage Hydropower Act, would establish focused licensing requirements for the expeditious review of license applications for closed-loop pumped storage projects. The bill defines closed-loop pumped storage projects as projects in which the upper and lower reservoirs do not impound or directly withdraw water from navigable waters or projects that are not continuously connected to a naturally flowing water feature. Due to the targeted function of these projects, FERC’s authority to impose conditions on a license under the proposed program would be limited to conditions related to environmental effects and public safety. H.R. 1967, the Bureau of Reclamation Pumped Storage Hydropower Development Act, proposes to authorize pumped storage hydropower development at Reclamation reservoirs. The bill is intended to resolve dual permitting requirements for pumped storage projects using both reservoirs subject to FERC jurisdiction and those under Reclamation jurisdiction. Under the bill, Reclamation would be the lead agency to oversee pumped storage development when two or more Reclamation reservoirs are part of the project.
Conclusion
In the early months of 2017, the new 115th Congress has begun moving at a rapid pace to introduce new bills or revitalize previously proposed bills to improve aspects of hydropower regulation. It is an opportune time for those considering hydropower investment to seek policy improvements and advance initiatives to make such investments more attractive. Chuck Sensiba is a partner at Van Ness Feldman and provides strategic counsel and legal representation to public utility districts, state governmental entities, investor-owned utilities, water districts, independent power producers, and developers on the full spectrum of complex licensing, natural resources, and environmental issues related to hydropower development. You can reach him at crs@vnf.com. Sharon White is an associate at Van Ness Feldman and represents a broad range of clients on issues relating to the regulation of hydroelectric projects before the Federal Energy Regulatory Commission, federal and state regulatory agencies, and the U.S. Courts of Appeal. You can reach her at slw@vnf.com. 37
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2017 CALENDAR
June 12–13
Idaho Water Users Association, Summer Water Law and Resource Issues Seminar, Sun Valley, ID June 14–16 Texas Water Conservation Association, 2017 Mid–Year Conference, Galveston, TX June 21–23 Western Coalition of Arid States (WESTCAS), Annual Conference, San Diego, CA July 23–27 National Association of Clean Water Agencies, Utility Leadership Conference and 47th Annual Meeting, St. Louis, MO July 23–27 National Water Reuse Institute, Water Environment and Reuse Foundation, and WateReuse California, 11th Annual IWA International Conference on Water Reclamation and Reuse, Long Beach, California July 27–28 Kansas Water Congress, Summer Conference, Garden City, KS August 8–10 National Water Resources Association, Western Water Seminar, Santa Fe, NM August 14–15 Tour of the St. Mary Diversion Project in Montana and the St. Mary River District in Alberta August 23–25 Colorado Water Congress, 2017 Summer Conference, Vail, CO August 29–31 Texas Alliance of Groundwater Districts, Texas Groundwater Summit, San Marcos, TX For more information on advertising in Irrigation Leader magazine, or if you would like to have 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.
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