Irrigation Leader March 2014 by Water Strategies

Volume 5 Issue 3

March 2014

Water Leadership in Montana

A Team Effort By Kris Polly

he group photo on the cover of this issue of marks a departure from our regular covers that feature a single manager of an irrigation district. Several months ago, I asked Mike Murphy, executive director of the Montana Water Resources Association (MWRA), and Jim Foster, manager of the Helena Valley Irrigation District, both of whom I have known for over 20 years, for their ideas on the cover for the Montana-focused issue of Irrigation Leader. Their response was thoughtful. “We sat down and talked about this and decided irrigation and water management requires a team,” Jim Foster explained. Jim is exactly right, and his comment underscores a truth throughout the West. Every successful irrigation district or water management entity relies on a strong team of highly capable managers, consultant engineers, and water attorneys. Jim’s comment shows his philosophy, and that of other successful managers: He relies on information from a variety of specialists to make the best decisions. The better the information, the better the decisions Jim and his board of directors will make.

In explaining his concept for the group photo and interview, Jim also referenced the importance of preserving water rights and the work of the MWRA. In addition to their day-to-day responsibilities, irrigation districts and other water management entities must be informed and active participants in water policy. Mike Murphy does a great job of keeping his members engaged. As an affiliate of the National Water Resources Association, the MWRA is also active at the federal level. The work done by Mike Murphy and his fellow state executives from other western state water associations is increasingly important. An important observation about the group interview is the direct way challenges are identified and addressed. There is great interest in new technology as well in finding new ways to work with others to arrive at solutions. The irrigation districts in Montana, like those in other western states, have an eye on the future. 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 Bureau of Reclamation, and other federal government agencies. He may be contacted at Kris.Polly@waterstrategies.com.

The Water and Power Report www.WaterAndPowerReport.com The Water and Power Report is the one-stop aggregate news site for water and power issues in the 17 western states. Sign up for the free “Daily” service to receive e-mail notice of the top headlines and press releases each business day.

Irrigation Leader

C O N T E N T S

March 2014 Volume 5

Issue 3

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 Crotty, Senior 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. 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 ÂŠ 2014 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: (left to right) Mike Murphy, Holly Franz, Jim Foster, Bob Hardin, James Brower, and Russ Anderson. Photo by Kris Polly Irrigation Leader

2 A Team Effort

By Kris Polly

4 Water Leadership in Montana

Delivering Real, Wet Water

By Kacie Thrift

Montana Water Resources Association

By Michael Murphy

Hydropower Development in Montana By Shawn Higley and Ed Everaert

Transforming Scrublands Into Vineyards By Chuck Freeman

District Focus 28

From the Ground Up: Restoring and Improving the Crow Irrigation Project By Titus Takes Gun

WATER LAW 30

Montana: A Leader in Water Innovation By Tim Fox

Weighing In on the Expansion of "Waters of the United States" By Robert Johnson

CLASSIFIED LISTINGS 3

Water Leadership in Montana

Left to right: Russ Anderson, senior water resources engineer with Morrison-Maierle, Inc.; James Brower, project manager of the Lower Yellowstone Irrigation Project; Jim Foster, manager of the Helena Valley Irrigation District; Bob Hardin, general manager of the Greenfields Irrigation District; Holly Franz, partner at Franz & Driscoll PLLP; and Mike Murphy, executive director of the Montana Water Resources Association.

rrigated agriculture is an integral part of Montana’s history and is an economic cornerstone of the state. Its story unfolds across professional fields—farming, law, engineering, and information technology, to name a few. When Kris Polly, editor-in-chief of Irrigation Leader magazine, reached out to Mike Murphy of the Montana Water Resources Association (MWRA) for a cover story on water in Montana, Mike came back with a proposal—a roundtable with six key leaders in Montana water. His rationale was simple: Managing and delivering water is a team effort. The result was an informative and valuable discussion about water in Montana through the lens of six professionals. Mike Murphy has served as the executive director of the MWRA since 1993. Mike grew up on a small ranch in the Helena Valley and continues to work cattle. After attending Montana State University and obtaining a master degree in economics, he spent 10 years working as administrator of the Agriculture Development Division in the Montana Department of Agriculture. 4

Holly Franz is a partner at Franz & Driscoll PLLP, where she practices in the areas of water rights and government relations. She is a member of the Upper Clark Fork River Basin Steering Committee and Clark Fork Task Force. She is the Montana reporter for the Rocky Mountain Mineral Law Foundation’s Water Law Newsletter and is a past president of the MWRA. Jim Foster has been the manager of the Helena Valley Irrigation District (HVID) since 1989. Prior to Jim’s employment at HVID, he owned and operated a private irrigation equipment business specializing in center-pivot system design, installation, and maintenance. HVID is a multipurpose project, providing water to 20,000 acres of agricultural land and to Montana’s capital city, Helena. Jim is a past president and current officer of the MWRA board of directors. Bob Hardin has been with Greenfields Irrigation District (GID) for 32 years, working in a variety of capacities: laborer, ditchrider, heavy equipment operator, and construction Irrigation Leader

foreman. He has served as general manager of the district since 2004. Located in west-central Montana, GID serves 83,000 acres and 700 water users. GID operates and maintains more than 1,000 miles of canals, laterals, and drains, as well as three reservoirs—Gibson, Pishkun, and Willow Creek. Bob is the president of the MWRA board of directors. James Brower is the project manager of the Lower Yellowstone Irrigation Project (LYIP), which comprises four irrigation districts in Montana and North Dakota. Prior to his work at LYID, James designed and developed irrigation systems for farms and irrigation districts in Oregon and Washington State. James is a member of the MWRA board of directors. Russ Anderson is a senior water resources engineer with Morrison-Maierle, Inc. Russ has been a water resources engineer for over 13 years, performing engineering analyses, design, and studies on a diverse range of water resources projects, including low-pressure pipeline conversions, canal lining, wasteway storage projects, gravity-pressurized pipeline design for sprinkler systems, recovery of drain flows via variable-speed pumpback systems, and district-wide GIS-based mapping of irrigated acreage of farm units. Russ is a member of the MWRA board of directors. Jim Foster: Before we get started, we should explain why we are going with this group concept instead of highlighting one district. We sat down and talked about this and decided that irrigation and water management requires a team. Russ is representing the consulting engineers that districts so often work with on projects, while Holly is representing the legal expertise required to ensure that our water rights are protected. All of these aspects make irrigation in Montana and the work of the MWRA successful. Kris Polly: I appreciate that explanation—irrigation is a team effort and requires the good work of professionals across a variety of fields. That said, what are the biggest challenges to irrigation management in Montana today? Mike Murphy: One of the biggest challenges we are facing is keeping our aging infrastructure intact and finding the financing to keep those structures viable for future generations. We have many facilities and structures in Montana that are 100 years old. It is going to be a very difficult task to go out and find the financing to put those retrofits in place. From an agricultural standpoint, the cost of retrofitting those structures is going to be incredible. Bob Hardin: My response dovetails with Mike’s— those are the same kinds of aging infrastructure issues that Irrigation Leader

are happening in my district [GID]. Trying to keep those aging facilities in working order with our limited budget. There is a need for state and federal funding to undertake water conservation efforts. One of the other issues in our district is water shortage. There are a lot of times where we shut water off in the fall earlier than we would like to—lack of storage, lack of snowpack. We believe that affects our drainage impact timing of runoff and siltation of our main storage reservoir, Gibson Reservoir. Another issue is the increasing desire for appropriated water rights. There are always people trying to get a little bit more water. Being on the Basin Advisory Counsel with Holly, we see it becoming more and more of an issue. Holly Franz: I am not a district manager; I’m a water rights lawyer. I look at these issues from a legal perspective. It is tough right now because Montana hasn’t completed its adjudication, so the water rights are somewhat in flux. Folks don’t necessarily know where they are in their system of priorities—that can make it hard for investment. As we start adjudicating, many people try to use more water than they had in the past to up the amount they get. It also makes it difficult to enforce your own water rights, because there is no legally determined priority date or flow rate. That is a pretty big challenge for my ag clients—establishing what their rights are and trying to protect those rights against junior users. James Brower: The biggest challenge is the permitting process . . . waiting for comments or requests for mitigation from governmental agencies. It is a confusing maze that you have to work your way through. You may have some agency leaders that try to help you, but you also may have local fish biologists with other priorities for the water. Russ Anderson: I provide engineering services for water managers and districts. We see folks struggle with aging infrastructure and work with them to make improvements, update their equipment, and look longterm on water delivery efficiency and development opportunities. Jim Foster: Urbanization has had a significant affect on the Helena Valley. Protecting easement integrity from encroachment has become a full-time job. Water conservation is always an issue. We have a finite amount of water. We have a priority, as most irrigation projects have, to find ways to conserve water and to stretch it further. We’ve done several major lining projects the last few years and have now started to work on piping our first lateral. This particular lateral is 27 percent efficient, so 5

by piping it, it will become 100 percent efficient. We are also looking at micro-hydro as we pipe laterals to generate power and money. Financing is an issue—as public nonprofit corporations, the only way to make money is through assessments of the water users. So we are looking at different ways to bring revenue into the district besides raising user fees. We have also worked to partner with area conservation groups. In one agreement, the district agreed to supply Prickly Pear Creek water users with their irrigation water if they agreed to leave their water in the creek for in-stream flows. This resulted in a more reliable source of water for the farmers and the first time in 40 years that Prickly Pear Creek ran water year round. We’ve been working a year and a half on our hydro project at the base of Canyon Ferry Dam. Phase 1 is a 5-megawatt (MW) unit, utilizing the 130 feet of head at Canyon Ferry, and phase 2 is a 12-MW unit. Recently passed federal legislation allows for a district to work directly with Reclamation through its Lease of Power Privilege process rather than through FERC [Federal Energy Regulatory Commission], which allows us to develop hydroelectricity more efficiently and with far less expense. Kris Polly: I would like to pick up on that point. Have you seen a growing trend for hydro development in Montana? Mike Murphy: Yes, it is perceived as a very clean, renewable energy. For that reason alone, there is an incentive associated with it. But also to help offset these costs for aging infrastructure. You might be able to put a hydropower in place that can offset some of the costs and provide for operating revenues. The recent legislation will help change things from the perspective of the Bureau of Reclamation and the private sector as well. Holly Franz: I have not seen a whole lot of interest in hydro-related guidance. I know that irrigation districts are very interested. Installing hydro in drops or ditches can make it very easy from a water permitting process perspective. It fits as a nonconsumptive use that fits onto existing projects.

Gantry crane control box for the Canyon Ferry Dam. 6

Bob Hardin: A developer completed two projects that we have in place—a 7.5 MW and 5.5 MW within a mile of each other on one of our major drop structures. And we were able to fund a lot of it with in-kind service earthwork and secure our 10 percent Irrigation Leader

interest by just doing that. It has been a great deal for us. We have been approached by the same developer to do a small project. The challenge has been trying to get a power purchase agreement with somebody. There is another potential site we are considering at Gibson Reservoir. I don’t know if we can get the financing to pursue a project on our own. It is kind of nice to go into partnership with a developer who specializes. It makes the transitions into hydro smoother. Russ Anderson: The FERC licensing process was not conducive to people implementing these projects. As some of the discussion centered on that has changed some of the requirements, we are definitely seeing more people looking at feasibility level assessments. Some of the interest is also being driven through the market by wind power, where you can get base-load power from these projects. It makes it more attractive from a financial standpoint. James Brower: There has been a lot of local support and investigation done on hydropower. We’ve really benefitted from the work of both state and federal representatives who have led the effort to pass legislation to promote small hydro projects. Kris Polly: What technological innovation has had the greatest impact on Montana irrigation? Mike Murphy: Pivot irrigation. It has facilitated the ability to expand production throughout the state. Holly Franz: I’ll follow up on what Mike said because sprinklers have had an incredible impact on ag in Montana—both positive and negative. We have seen changes in the advent of water in the loss of return flows. The challenge in my legal work has been in scenarios in which a junior user had previously relied on return flows. Pivot irrigation really has had an impact on full productivity and water availability and flows. It really has been quite a change. In Montana, you can go from flood to sprinkler without having to seek any administrative approval as long as you do not change your point of diversion or place of use. Most folks who put in a sprinkler want to spread their water farther. So they often do put in more acres. And if you go out of your original irrigation footprint, you will have to go through the state administrative process and address any Irrigation Leader

Canyon Ferry Reservoir, Canyon Ferry Dam, and top view of Helena Valley Pumping Plant with 10' diameter penstock. Pumping plant houses two 3,500 hp Francis-type hydraulic turbines to provide 360 cfs to irrigate the Helena Valley and to provide municipal water to the city of Helena.

potential adverse impacts on other water users. Bob Hardin: I totally agree with pivot irrigation. It is so much more efficient—we now have pivots running on GPS that can be accessed via laptop or cellphone. Every year, they seem to come up with something different. The problem we have been seeing with pivots is the ability to work on farms that are partially within and outside of district boundaries. Somehow, they have to shut the nozzles off as they go outside the district boundary, and then turn back on when they reenter. The problem we are having in our district is finding a pivot to fit on rectangular fields. James Brower: What has had the greatest effect on water savings—and I have seen this in three different states—is the conversion of flood irrigation ground into center pivot. Pivots can be 90 percent efficient with the water, so a field that took 9 cubic feet per second to water now only takes 1.5 cubic feet per second to water. Because of pivot irrigation, we can run our canals at a lower water level, reducing seepage and, consequently, water rationing when supplies are low. Russ Anderson: I would say the use of GIS-based tools. That is a technology that we are seeing folks utilize for a broad array of services and management. It allows managers to go out and collect detailed information about their systems. They can now make more informed decisions and get more bang for their buck. Kris Polly: GIS has been extremely valuable. Would anyone else like to comment on Russ’s point? Bob Hardin: I probably should since we hired Russ to do our GIS. Our whole project is now on a map that covers 7

700 water users and 83,000 acres. For example, we have layers of assessed acres and what is actually irrigated. If growers are irrigating more than they are actually assessed, we can straighten that up in our system and find out why that is happening. We ended up using Macbooks on every unit of our project and a computer-based app for our work. It has been a tremendous tool. Jim Foster: We are set up on a GIS-based system. Sharon, our office manager, uses GIS daily in a plethora of ways, including assessments and land ownerships. Layers include land reclassifications, structure inventories with information on date of construction, types of materials used, modifications, and upgrades. Other layers include identification of weed infestations, easement encroachments, irrigable lands, and district boundary. Technology has changed how we do business in the office for the positive. It has helped with water measurement—in our case, SonTek FlowTrackers, which measure water extremely accurate. Also, we have added a water order card to our website, which 40 percent of our water users are using. Kris Polly: What western water policy has brought about the biggest change in how you do business? Mike Murphy: As people become further removed from agriculture, changing philosophies are impacting policy development from the standpoint of prior appropriation. So one of the challenges we face is continuing to protect prior appropriation from policies that do not focus agriculture or agricultural production. Holly Franz: Over the last 30 years, one of the big things that Montana water did was start a pilot project to allow in-stream flow water rights, particularly the leasing of senior water rights for in-stream flow purposes. Before that policy change, there was a huge push to have a public trust type of doctrine, where regardless of prior appropriation doctrine, you could designate in-stream flow as a kind of super priority. In 1995, we brought in-stream flow into our existing water rights system. It was a good move because it meant that supporters of in-stream flow bought into the prior appropriation system. I think it is important for folks to follow that same model—all of these uses, no matter which one you think is most important, have to compete under the same prior appropriation system. In Montana, all uses are judged alike and determined solely according to their priority dates.

James Brower: Endangered Species Act requirements—in our case for fish screens at the beginning our canal—have had the most impact on how we do business. These requirements are especially burdensome on a wild river like the Yellowstone, where we have trees floating down during the warm parts of the year and ice floating down during the cold parts. I don’t want to see the American farmer becoming an endangered species. Bob Hardin: A big change in policy that has impacted irrigation districts is the legislation enabling districts to develop hydropower on our own, streamlining the process and providing a right of first refusal for unit development. Russ Anderson: The one thing that does come to mind is that the Montana Department of Natural Resources (DNRC) was charged by the legislature to use resource extraction taxes for renewable projects. It has led to good conservation projects—especially for water users. Jim Foster: To take up Bob’s point, we would not be pursuing hydroelectric generation if not for the legislation. And to address Russ’s point, the DNRC Renewable Resource Grant and Loan program is about the only source of dollars that irrigation districts have available to them to do lining projects or infrastructure repairs. One policy that has a huge impact is water conservation. Water conservation leads to so many positive and powerful changes in our system; it leads to measurement and accountability, to lining projects, to piping projects. Without the push for a policy of water conservation, many of these kinds of projects would not be happening. When I started out as a manager 25 years ago, there was an “us-against-them” mentality between agriculture and conservation groups with debates over issues such as in-stream flows. That mentality has changed a great deal through the years. Working with other groups for winwin situations brings great opportunities and benefits to irrigation districts and communities. Kris Polly: What is the most important message people outside of agriculture should know about irrigation? Mike Murphy: I sat on the original committee that dealt with the in-stream leasing issue. It was a struggle to find a balance between competing water interests. But we worked with other groups, including agricultural and conservation groups, to develop recommendations for the legislation. It is our job to communicate to the public about where their food comes from and how it is grown. Irrigation Leader

Holly Franz: Our water rights are valuable property rights. When it comes to land, people understand that you do not go on someone else’s property and build a house without going through the proper channels. But when it comes to putting a pump upstream from you in the ground or in a river, people don’t understand why you should have any say in it. We really need to communicate that water use and water rights are property rights that have to be respected.

James Brower: Irrigated agriculture is a major component of U.S. exports and economic recovery. In our county, the taxable value of a dry land acre is about $80, while the taxable value for an irrigated acre is more than $450. With the improved water efficiencies under a center pivot, we can double the production and variety of crops. So, in order to have more public and farmer support of endangered species projects, they need to benefit farmers and irrigators just as much as the species.

Bob Hardin: We need to focus on developing partnerships with entities that are not agriculture based to strengthen our interests.

Jim Foster: The stewardship of water, our greatest natural resource, is done by qualified people who are passionate about water and about the land. And our farmers and ranchers are often water’s best stewards. When you look at pictures of the Helena Valley in the 1940s and 1950s, it was basically sagebrush. Now it is a vast green valley with a lot of habitat for small animals and waterways for spawning fish. It is an incredible, positive change to these lands.

Russ Anderson: Ag is the number one industry in the state of Montana—and it is largely supported by irrigation. It is a fundamental message that needs to be shared.

Canyon Ferry Dam is classified as a gravity concrete dam is approximately 1000’ long, 225’ high, and has a 50,000 kW generation capacity. It was built by Reclamation in the 1950s for flood control, electrical generation, and irrigation. It was Pick-Sloan funded and included the addition of the Helena Valley Pumping Plant, which is connected to the dam’s left abutment with a 10’ diameter penstock. The dam is located in a narrow valley of the Missouri River and about 20 miles east of Helena, Montana.

Irrigation Leader

Delivering Real, Wet Water By Kacie Thrift

ozens took part in a ceremony held March 6, as federal, state, and local agencies signed contracts to deliver water through the new Weber Siphon to irrigators on the Odessa aquifer in the eastern part of Washington state. Washington State Department of Ecology Director Maia Bellon reminded attendees that just a few years back, a similar group of people gathered to celebrate the construction of the Weber Siphon. “We’re delivering real, wet water through that siphon, as early as this year, to farmers in the Odessa area,” Bellon said. “This is realizing a dream and a promise. A promise we took up in 2004 when some parties signed an MOU. And a promise made again in 2006 when the Columbia River water development program was created by the state legislature.” Bellon said the water supports $200 million in irrigated crops annually and 4,500 jobs, or about 32 percent of the total jobs in the Columbia Basin Project area, and will help prevent the continued decline of the Odessa Subarea aquifer, an irreplaceable natural resource. During the ceremony, U.S. Bureau of Reclamation Northwest Regional Director Lorri Lee and the East Columbia Basin Irrigation District Board President Don Osborne signed a contract to deliver 30,000 acrefeet of water from the state’s Lake Roosevelt Project to 10,000 acres of cropland through the new Weber Siphon

and a contract for the Coordinated Conservation Plan water (6,000 acres). Ecology Director Bellon presented Regional Director Lee with a secondary-use permit for 164,000 acre-feet of Columbia River water to be delivered to 70,000 acres of farmland that now rely on the declining Odessa Subarea aquifer. The secondary-use permit will be used to deliver water through the increased capacity of the East Low Canal, which is seen as a crucial link in moving water to farmers. The water right (secondary-use permit) fulfills a top priority of the state’s Office of Columbia River, tasked with securing a new source of water for farmers growing mainly high-value potato and grain crops in the Odessa Groundwater Management Subarea. Retired Reclamation Ephrata Field Manager Bill Gray spoke about the history of the Odessa and the Columbia Basin Project. A moratorium was put on the project in June 1993; Gray said the time-out was called until players could figure out the next steps to take for project continuation. The moratorium was lifted in 2003, and in 2004, stakeholders—Reclamation, the U.S. Department of Energy (DOE), and irrigation districts—worked together and agreed to a memorandum of understanding. Gray said that the date of the memorandum of understanding marked the start of getting irrigators off the declining aquifer. “That was 10 years ago,” Gray said. “These things just take time.”

Columbia Basin Project stakeholders take a tour of the East Low Canal construction after the water contract signing ceremony. 12

Irrigation Leader

U.S. Bureau of Reclamation Pacific Northwest Regional Director Lori Lee signs the water delivery contract for East Columbia Basin Irrigation District to deliver Reclamation water.

Current Reclamation Ephrata Field Manager Stephanie Utter said that in 2012, the final environmental impact statement was released, and the preferred alternative was chosen as action to protect the declining aquifer and get irrigators a groundwater replacement. In April 2013, Lee signed the record of decision and work began. Less than a year later, Reclamation gave permission for the East Irrigation District staff to start construction, meetings have been held with landowners for eligibility requirements, and contracts have been signed. There are three different sources of water for the Odessa Groundwater Replacement Program: Lake Roosevelt, conservation among the three project irrigation

districts, and expansion of the Columbia Basin Project. The three sources equal nearly 86,000 acres of irrigation water. “Last year, DOE made $2 million available to widen East Low Canal and deliver water for the Lake Roosevelt Incremental Release Program,” said East Irrigation District Manager Craig Simpson. “We did that, and now we have $26 million from the state and are working on zone 1.” For zone 1, the East Irrigation District is working to widen the East Low Canal from Weber Siphon to Lind Coulee Wasteway Gate, construct a Lind Coulee Wasteway Gate, and modify affected bridges. Future work (zone 2) includes adding second barrels to five siphons, widening the East Low Canal from Lind Coulee Wasteway to Scooteney Wasteway, and modifying additional affected bridges. East Irrigation District continues to work on moving dirt from the East Low Canal in hopes to deliver water as early as this month. Reclamation and East Columbia Basin Irrigation District have begun contract negotiations for irrigation of 70,000 acres under the new permit. Irrigators who choose to enter the Odessa Groundwater Replacement Program are required to set aside their rights to groundwater withdrawals, which will place them into standby reserve status. “We have a natural resource that’s very important,” Lee said. “It’s great to be a part of group that is willing to take care of it [water].” Kacie Thrift writes about issues affecting the Columbia Basin Project. Most recently, she was a reporter and assistant editor for two newspapers in north-central Washington. She grew up in Entiat, Washington, and is a graduate with honors from Whitworth University with a bachelor of arts in journalism and mass communications.S

East Columbia Basin Irrigation District has rented and leased equipment to widen the East Low Canal for a groundwater replacement project in Washington State. Irrigation Leader

Montana Water Resources Association By Michael Murphy

he Montana Water Resources Association (MWRA) works to promote responsible development of Montana’s water resources for irrigation, hydropower, and other uses while fighting for the protection of the prior appropriation doctrine and state-granted water rights. From early roots under the agricultural extension program at Montana State University in Bozeman, the MWRA soon grew into its current structure as a statewide private association and has operated as such for over 50 years. MWRA membership comprises a wide variety of Montana’s water stakeholders: irrigation districts, rural water associations, private ditch companies, agribusinesses, rural electric companies, engineering and law firms, hydropower producers, and individual water users. The MWRA provides a reasonable and responsible approach to the beneficial use of Montana water resources and to retaining values established by hard working Montanans.

Key Issues

Proposed EPA Rule on the Waters of the United States. The MWRA is very concerned about states rights and the rules proposed by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers redefining “waters of United States” for the purposes of Clean Water Act jurisdiction. Part of our mission is to ensure and enforce state-granted water rights. We hear more and more about priority uses of water and are concerned that reduced state authority over our waters will result in diminished legal basis for protecting the state-granted priority of our water rights. To the extent that federal permitting requirements under the Clean Water Act impinge upon using those rights for the benefit of Montanans and add more cost to the use and management of our waters, we oppose the proposed expansion of federal jurisdiction. Combined Appropriation. At the state level, the MWRA has been addressing the definition of “combined appropriation” and provisions allowing for water wells to be exempt from permitting. Montana law enables an individual who puts in a well to appropriate less than 35 gallons a minute (or 10 acre-feet a year) for domestic or livestock use and not go through a permitting process to determine potential adverse effects. As a result, the development of an increasing number of new exempt wells may adversely impact existing water rights. The MWRA has worked through several legislative sessions on this issue. Certainly, the realtors, homebuilders, and developers do not want to see the use of those wells diminished in

any way and from a property rights perspective, and we want to see the continued reasonable use of those exempt wells. At the same time, we want to ensure that individual water rights are protected and not adversely impacted by an excessive increase in groundwater withdrawals. Urbanization. There are several areas in Montana— in the Bitterroot Valley, the Kalispell region, the Helena Valley, and down near Bozeman—experiencing urbanization. Montana needs growth from an economic perspective, but we have to make sure we balance the needs of agriculture and development within the framework of property rights. And there is a balance. For example, the Helena Valley Irrigation District was designed and is operated to provide for both agricultural water for irrigation and municipal consumption. There is a strong connection there between the irrigators and the municipalities. We’ll see more of that in Montana. Aging Infrastructure. Water providers operate a lot of delivery structures and facilities that fall into the aging category; some are over 100 years old. The MWRA has been working to help develop opportunities for irrigation projects to find financing to get those projects retrofitted and keep them viable for generations to come. The state of Montana administers some programs through the state Department of Natural Resources and Conservation that provide a modest amount of funding to help address infrastructure needs. Developing more funding opportunities is a high priority of the MWRA. Hydropower. The MWRA has been working on trying to facilitate opportunities for more irrigation projects to develop smaller scale hydropower. Passage of recent federal legislation has certainly helped. Several irrigation projects in the state are exploring hydro development. Greenfields Irrigation District near Fairfield, Montana, has successfully completed a project to generate power and is exploring additional potential. Irrigation Leader

Water Development and Improvements

There has been limited development of new storage and delivery facilities in the state. While new developments have been tough to move forward, water infrastructure improvements and enhancements are being accomplished. One of the latest is on the Lower Yellowstone Irrigation Project. The Lower Yellowstone Irrigation Project, the Bureau of Reclamation, and the Army Corps of Engineers have completed improvements on the main canal head works and are working on proposed modifications to Intake Diversion Dam to facilitate a pallid sturgeon fishery. It is a big project involving a lot of dollars. While the modifications will ultimately change the operation and related costs of the irrigation project, the efforts are consistent in that irrigators continually strive to find a reasonable and realistic balance within the economics of production agriculture and related irrigation and environmental interests.

Looking Ahead

The MWRA would like to see expanded use of Montanaâ&#x20AC;&#x2122;s water resources in the area of irrigated agriculture. Our organization can play a significant role in supporting that effort while also working to support necessary enforcement of state water rights and the prior appropriation doctrine of first in time first in right. We can anticipate increasing demands on water resources as well as continuing changes in philosophies and attempts by various interests to place priorities on the use of our water resources. The MWRA will continue its effort to

maintain the balance necessary to protect the rights of hard-working Montanans as well as our water resources. On a personal note, it is a pleasure for me to work with the team of professionals that is the MWRA and to work on behalf of all Montana water users. Combining my personal interest and involvement in production agriculture and being a participant in the direction of legislative and administrative policy is an opportunity most people do not get. I enjoy working with and certainly appreciate the hard work and dedication of the team of MWRA board of directors, both past and present, who dedicate their time away from business and family to make a difference in the important task of protecting our water and other private property rights. Michael Murphy is the executive director of the Montana Water Resources Association and a rancher near Wolf Creek, Montana, and in the Helena Valley. Mike grew up on a small ranch in the Helena Valley. After attending Montana State University and obtaining a master degree in economics, he spent 10Â years working as administrator of the Agriculture Development Division in the Montana Department of Agriculture. Mike, his wife Jeanne, and their three children started building their ranching operation in 1984. Mike took on the current position as executive director of the MWRA in 1993. To contact the MWRA, call (406)Â 235-4555 or e-mail mwra_h2o@msn.com. View of 10' diameter penstock from Canyon Ferry Dam.

Irrigation Leader

Hydropower Development in Montana

Lower Turnbull generating facility trip gates, Greenfields Irrigation District.

By Shawn Higley and Ed Everaert

ydropower development on existing irrigation projects in Montana can provide multiple benefits, including revenue from net power generation, offset of increasing irrigation project operations and maintenance costs, renewable energy production, and economic benefits to the local economy. Under recent hydropower legislation signed into law by President Obama, an irrigation district is no longer required to go through the Federal Energy Regulatory Commission (FERC) for licensing a proposed hydropower project. The provisions of P.L. 113-24, the Bureau of Reclamation Small Conduit Hydropower Development and Rural Jobs Act, now apply to proposed hydropower projects on Bureau of Reclamation conduit facilities that can produce 5 megawatts (MW) or less of electric capacity.

The LOPP Process

To initiate the hydropower project process on Reclamation projects, an irrigation district must send Reclamation a letter to initiate the Lease of Power Privilege (LOPP) for the proposed hydropower project. Reclamation subsequently will send FERC a letter for a determination of jurisdiction. Reclamation then initiates discussions with the Western Area Power Administration (WAPA) and the Western States Power Commission (WSPC) regarding their intent to fund federal development of the proposed hydropower project site. WAPA and WSPC have 60 days to respond. If WAPA and WSPC decline federal development, Reclamation notifies the irrigation district, as the preference entity for the project development. The irrigation district then has 150 days to submit a detailed 18

proposal for the development of the proposed hydropower facility. Proposal requirements are outlined in Reclamation’s Directive and Standard FAC 04-08, LOPP Processes, Responsibilities, Timelines, and Charges. If the proposal for development is deemed satisfactory, Reclamation will notify the irrigation district that it has been selected as the preliminary lessee for the hydropower project. Following the issuance of the preliminary lease, the process follows FAC 04-08. The irrigation district can initiate the final design, private development of the hydropower project, and power purchase contracts with nonfederal entities.

The Feasibility Study

One of the first critical components of a hydropower project is a feasibility study. The primary goal of a feasibility study is to analyze the feasibility of installing hydropower units at proposed site. The feasibility study provides a solid basis for the implementation of future hydropower projects. For each feasible alternative, the study should determine the monthly and annual operation, maintenance, capital costs, and annual gross and net power generation revenue. According to Reclamation studies on power customers served by hydropower in the Great Plains region through the WAPA, the minimum feasible size of a small hydropower unit is approximately 2 MW. According to hydropower unit developers, a hydropower unit should be sized in kilowatt (kW) capacity for 30 percent of the flow duration curve for river or reservoir systems. For irrigation canal or pipeline systems, the unit is sized based on the flow duration curve or maximum flow that can be used when no parallel pipeline systems are constructed. General cost guidelines for feasible hydropower project development are $1,500 per kW unit size, ranging from $1,000/kW for highhead installations to $2,000/kW for low-head installations. Irrigation Leader

Nuts and Bolts of a Hydro Feasibility Study Physical and environmental attributes of the project area Preferred alternative analysis Hydropower project funding

Environmental and renewable resource impacts

Hydrologic analysis

Water rights

Estimated capital costs

Generator building and related equipment

Irrigation district and investor group net power revenue split

Connection to an existing electric power transmission line

Economic benefits

Conclusions and recommendations

40-year life cycle cost estimate

Turbine Selection

The type of turbine is selected based on turbine efficiency for minimum flows. For example, if the average flow is 100 cubic feet per second (cfs), then a Pelton turbine will only generate electricity when the minimum flow is 10 cfs or greater, and a Francis turbine will generate electricity if the minimum flow is 40 cfs or greater. In general, for high-head and low-flow hydropower projects (head greater than 200 feet and flows less than 100 cfs), a twinnozzle Pelton turbine (rated at an efficiency of 92 percent) should be used. Pelton turbines have been designed and installed for small hydropower units with a head as low as 70 feet and a flow as low as 4.5 cfs. However, for flows greater than 100 cfs, the head requirements for Pelton turbines are high (500 feet and above), making the implementation of a Pelton turbine in these circumstances very difficult. For low-head hydropower projects (head less than 200 feet) and high flows (flows greater than 100 cfs), the Francis turbine (rated at an efficiency of 89 percent) should be used. Francis turbines are often a good fit for the retrofit of western irrigation projects due to high-flow/low-head conditions. The overall turbine/generator/hydraulic efficiency used should be set at 70 percent. The interconnection transmission line can have a capacity as low as 12.4 kilovolts. Load rejection must be considered when selecting the type of turbine for the hydropower system. Load rejection occurs when a fault occurs between the sending unit and the receiving unit, where the sending unit is still transmitting power but the receiving unit is no longer receiving power. Pelton turbines are an impulse-type turbine with a fixed nozzle and moving buckets. For a Pelton turbine, a hinged deflector plate is used between the jet flow from the nozzle and the bucket to divert flow to the draft tube when load rejection occurs. Francis turbines are a reaction-type turbine with radial flow and rotating nozzles. For a Francis turbine, the flow of water to the turbine runner must be shut off for load rejection. For river/reservoir hydropower systems, flow to the Francis turbine is shut down when load rejection occurs, and the reservoir and surge tanks store the water flow until the unit is back online or Irrigation Leader

a bypass valve is opened at the turbine to discharge water. For pipeline/canal hydropower systems, flow to the Francis turbine has to be shut down when load rejection occurs, and a bypass at the pipeline/canal intake structure with a parallel pipeline/canal system can be used to continue to deliver water. Recent Hyrdopower Development in Montana Two hydropower projects were recently completed in Montana: Tiber Hydropower Project • located in north-central Montana • installed in 2004 for $950/kW at a unit size of 7.5 MW • total installed cost of $7,125,000 Greenfields Irrigation District • brought two hydropower projects online in 2011—the Upper (5.3 MW) and Lower (7.7 MW) Turnbull Drop Turbine/Generator Units • total capital costs for the two units were about $15 million or $1,154/kW. As irrigation districts become more aware of the financial benefits, projects like these are gaining more traction throughout the West. Shawn Higley, P.E., is principal of WWC Engineering, Montana operations. Prior to his current position, Shawn worked in a variety of managerial capacities for WWC, as well as for the Wyoming State Engineer’s Office. You can reach Shawn at shigley@wwcengineering.com. Ed Everaert, P.E., is senior project manager at WWC Engineering. Prior to his current position, Ed was a water and power resources engineer at the Bureau of Reclamation; district manager of the Greenfields Irrigation District in Fairfields, Montana; project manager for DOWL HKM; and engineering and operations manager for Kennewick Irrigation District. You can reach Ed at eeveraert@wwcengineering.com. 19

Transforming Scrublands Into Vineyards By Chuck Freeman

s one of the fastest-growing states in the nation, Washington’s need for land suitable to agriculture production and human habitation continues. The ability to convert previously unproductive land is vital, as the conversion into productive acreage can transform communities and economies. However, the reality of doing so requires a great deal of planning and work by the many varied interests. In recent years, the Kennewick Irrigation District (KID), located in south-central Washington, had the opportunity to participate in this process in several ways. Washington State’s Tri-Cities area is home to sagebrush, grasses, and other sparse vegetation. Amid these scrublands stands Red Mountain. In the early 1940s, the KID acquired 670 acres of land on the mountain as the result of unpaid irrigation assessments. For the past 70 years, the KID has been caretaker of this land. Throughout the years, discussions continued on what to do with the property. On the wall of the KID boardroom is a drawing from 1940 depicting a canal wrapping around Red Mountain. It was apparent that early leaders saw potential in Red Mountain land with its rich soil, low precipitation rate, mild winters, and ample sunlight. Without water, however, it remained virtually undeveloped. After many decades, the Red Mountain South Local Improvement District (LID) provided the solution to this challenge, and the Red Mountain Project was born.

The Red Mountain Project: Creating an LID

Construction of Red Mountain pump station.

Critical to improving the value of scrubland is having the ability to deliver water for agricultural production and habitation. In 2009, over 100 Red Mountain landowners approached the KID to form an LID. As the owner of 670 acres on Red Mountain, the KID joined the LID. They consulted with landowners, the Bureau of Reclamation, the Washington Department of Ecology (Ecology), Washington Department of Fish & Wildlife (WDFW) and the Yakima Nation on a project that would bring water to the mountain. Together, they formed an agreement that led to a new Yakima River point of diversion to deliver water to the mountain’s future water users. Improvements cost money, and initial feasibility estimations for the project were presented to the group as $12.5 million.

Irrigation Leader

An engineering firm would need to be selected to design and carry out the project. Through the bidding process, the search for a design team resulted in RH2 Engineering being selected. As the project design was refined, costs for the new intake station, installation of 90,000 feet of pipe, and construction of reservoirs increased from the estimated $12.5 million to approximately $20.5 million dollars, or $11,485 per acre, bringing LID costs on KID-owned land to $7,694,950. The LID participants believe the land’s potential justifies the expense.

Benefits of the Red Mountain Project: Community, Economy, and Environment

There are many benefits to converting previously unplanted Red Mountain land through the Red Mountain Project. With the mountain’s reputation as one of the world’s most desirable wine regions continuing to grow, transformation of the scrubland to vineyards will result in the production of fine wine grapes. More so, as the wine industry grows, there is the added likelihood that supporting goods and services will move into the area, further boosting the state and local economies. In fact, Washington State estimates that over 100 jobs and millions of dollars in new tax revenues will be generated through the Red Mountain Project. In addition to economic benefits to the surrounding Tri-Cities communities, the Red Mountain Project also benefits all rate payers in low water years. Wine grapes only need 1.5 acre-feet per year, whereas the water duty of a typical rate payer is 3.5 acre-feet per year. New Red Mountain customers will have this lower 1.5 acre-feet water duty. The difference will be placed in trust with the state for use in low water years. Finally, the Red Mountain Project provides benefits to the environment, specifically the preservation of 1,200 acres of shrub steppe habitat and improved conditions for salmon, steelhead, and other aquatic species. The KID receives its water through two large hydraulic pumps. By moving a portion of the KID’s diversion water downstream to the new intake structure at Kiona, drive water previously used to pump water into the main canal stays in a reach of the river critical to salmon, which has previously suffered from low flows during the summer months. Improved flow allows for ease of passage for the fish, in addition to other benefits. With all of the many benefits of converting scrubland

Irrigation Leader

into vineyards, it is important to emphasize that this project is really about cooperation between individuals, tribal interests, and government agencies. Success is the result of the effort and vision of the community, the KID, Reclamation, Ecology, the WDFW, and the Yakama Nation. Through joint efforts, our community, the economy, and the environment will all be enriched far into the future.

Selling the Land

With the KID as steward of 670 acres on Red Mountain, the years following the inception of the LID reinvigorated discussions on what should be done with the district’s land. The KID’s board of directors decided to sell the district’s Red Mountain property, and a local Tri-Cities agri-business auction firm, Musser Brothers of Pasco, was selected from respondents to a request for qualifications. Musser Brothers’ services included extensive advertising, resulting in many influential individuals and groups from throughout the country and Canada being in attendance and bidding at the November 16, 2013, auction. The auction, which began at 2:30 p.m., was a KID board special meeting. Initial bids began for individual parcels of land and then moved into combinations of 1 to 31 parcels per bid by the late afternoon. During a break in the bidding, the board voted to accept the highest bid or group of bids that day and jockeying continued over the next few hours. At 7:17 p.m., bidding was closed. The final sale netted the district $8.3 million in cash, plus all associated LID costs. The sale of the KID-owned land was a great success that will continue to benefit rate payers and the district. For decades, the question was what to do with the land, but through the hard work and efforts of many varied groups, Red Mountain has become a valuable contribution to the community and economy. Now, the KID board has a new question: how to allocate the proceeds from the sale to further benefit the rate payers, the community, and the district into the future. Chuck Freeman is the KID’s district manager. You can reach him at (509) 586-9111.

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District Focus

From the Ground Up: Restoring and Improving the Crow Irrigation Project By Titus Takes Gun

he Crow Tribe of south-central Montana has been practicing irrigated agriculture for over a century. After a recent water rights adjudication and settlement, the tribe is undertaking a complete overhaul of its irrigation system, the Crow Irrigation Project (CIP). The Crow Tribe Water Resource Department (CTWRD), in conjunction with the Bureau of Reclamation and the irrigation department of the Bureau of Indian Affairs (BIA), will helm the 15-year rehabilitation. CTWRD’s goal is to rehabilitate and improve the entire CIP system and make it as efficient as possible with the funding available. In many ways, CTWRD is starting completely from the ground up.

The CIP

The CIP delivers water from Bighorn Mountains to fields of hay and alfalfa, corn, sugar beets, and small grains in a harsh growing environment—temperatures range from -50 to 110 degrees Fahrenheit—and the average growing season is 135 days. The CIP’s infrastructure is extensive: 11 diversion dams, 1 storage dam with 23,000 acre-feet of capacity, roughly 122 miles of main canals, 43 miles of drains, 257 miles of laterals and wasteways, and approximately 3,800 irrigation structures. All of the CIP’s 11 units are gravity fed and lack any automated gate control. As of 2006, the CIP served approximately 1,100 tribal and nontribal water users. Current irrigation practices include flood, furrow, wheel lines, gated pipe, and

sprinklers, with almost entirely unlined ditches as distribution systems.

Background

With funds from the 1884 Crow land Cession, the United States Reclamation Service constructed the CIP’s first structure, the Reno Ditch, on behalf of the BIA in 1885. The Reclamation Service continued the design and construction of 9 of 11 irrigation units through 1922. The BIA completed most of the CIP’s irrigation facilities by 1940. Today, like many irrigation districts, the CIP has been grappling with an aging infrastructure and the attendant challenges of funding improvements for improved operation and maintenance of its facilities. Erosion and structure failure are adversely impacting system operability, efficiency, and safety.

The Settlement

The Montana legislature created the Reserved Water Rights Compact Commission in 1979 to adjudicate federal and tribal reserved water rights. In 1999, the Montana state legislature passed legislation, MCA 85-20-901, which approved the Crow– Montana Water Compact and recognized the Crows’ right to 500,000 acre-feet per year of the natural flow of the Bighorn River. In 2010, the U.S. Congress passed the Claims Settlement Act (now P.L. 111-291), which includes the Crow Water Rights Settlement Act. Ratified by the Crow Tribe in 2011, P.L. 111-291 authorizes $131.8 million for rehabilitation improvements to Wyola Lateral.

Irrigation Leader

Implementation

Before: Headworks at Lodge Grass Creek.

the CIP and $246.4 million to design and construct a municipal, rural, and industrial water system for the Crow Indian Reservation.

Rehabilitation and Improvement

CIP improvements cover five project categories: rehabilitation and betterment of CIP structures, rehabilitation and betterment of CIP canals and laterals, alternative on-farm irrigation systems, purchase of fee lands, and development of irrigation on future Trust lands. • Structural rehab efforts will restore structures, improve on the original design, and automate key CIP facilities, while canal rehab will include new lining, erosion rehabilitation, and placing laterals into pipe. • There will also be efforts to bring new land into production through the identification and purchase of fee acres within the CIP to bring them into Trust status, as well as to develop a water supply and system for the irrigation of approximately 7,000 acres of new land.

After: Newly constructed headworks and walkways, Lodge Grass Creek. Irrigation Leader

Thus far, CTWRD's efforts have focused on completion of a CIP Master Plan and Environmental Assessment. However, CTWRD has completed six projects to date. The projects have mostly consisted of canal repairs—lining with EPDM rubber and building sound canal walls to alleviate the effects of erosion. Work has also consisted of the rehabilitating two CIP unit headworks. Another project addressed an emergency to save a major check structure (High Check) on the Bighorn Canal. One of those completed projects is the Lodge Grass #2 construction project, which rehabs the Lodge Grass #2 headworks. Prior to rehabilitation activities, the headworks structure had significant structural, operational, and safety issues. Construction activities entailed the demolition of the old headworks structure and construction of a new headworks structure. The new headworks structure included a cast-in-place concrete headwall with precast box culverts and is equipped with three slide gates: two serving the main canal and one serving a field ditch. In addition, a new steel walkway was installed across the diversion dam to provide access across Lodge Grass Creek, as well as to facilitate installation of stoplogs across the diversion dam to provide a checked water surface for the headworks. One of the main goals of the settlement was to provide jobs for tribal members. The size of the CTWRD construction crew has been fluctuating between 12 and 48 people, with a basic crew of 12 for year-round work. Right now, the CTWRD is completing the construction for the rehabilitation and betterment of the irrigation system, and the BIA currently owns and operates the system. Eventually, the tribe would like to take the system over. The CTWRD is currently working to establish a permanent administrative building and a maintenance shop as an operations and maintenance department. Construction efforts are scheduled to fully commence following this year’s irrigation season. The CTWRD is hoping to finish nine major projects prior to the commencement of the 2015 irrigation season, including repairs to wasteways, headworks, and canals. Titus Takes Gun is the director of the Crow Tribe Water Resource Department. Prior to being hired by the Crow Tribe in October 2012, Titus worked as a civil engineer in the private sector. He is a graduate of the civil engineering program at Montana State University in Bozeman, Montana. You can reach Titus at Titus.TakesGun@crow-nsn.gov. 29

Water Law

Montana:

A Leader in Water Innovation

By Tim Fox

he world’s population is growing while its cultivated land base is shrinking. Our society is becoming more water consumptive, and we have to manage and use water more efficiently. Thus, I believe we are on the verge of an exciting era of innovation and growth in Montana. The hard work of our water users presents our next generation with even greater opportunities to feed the world and positions us to be a leader in water stewardship. Along the way, however, we will discover challenges to our traditional way of managing and using water.

What are some of those challenges? For western states, the federal government is emerging as one of our primary challenges to effective state management of our water. Montana’s Constitution states, “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.” This principle makes it clear that the state of Montana is in charge of administering and regulating what we call “waters of the state.”

There are some in the federal government who disagree. Since taking office as attorney general, I have monitored the actions of the U.S. Environmental Protection Agency (EPA) and its state regulatory efforts. Because the Clean Water Act relies on a system of cooperative federalism to achieve water cleanliness standards, the state is the primary regulator to reduce water nutrient content. Last year, Montana joined 12 other states in Gulf Restoration Network v. EPA in federal court in Louisiana, where the states supported the EPA’s decision not to require federal nutrient standards in the Mississippi-Missouri River Basin. The district court ruled that the EPA is not required to implement federal nutrient standards but instead conduct a more thorough review than it did in the case. The EPA appealed to the Fifth Circuit Court of Appeals; 30

Montana and our fellow states will continue to support our position of state primacy. At the same time the EPA was trying to avoid imposing federal standards in waters feeding into the Gulf of Mexico, it was actually exceeding its authority by imposing federal standards in waters feeding into the Chesapeake Bay. The EPA established detailed standards in multiple water courses that intruded on the pollution control powers of Pennsylvania, New York, and other states. The American Farm Bureau Federation sued the EPA, and a federal court in Pennsylvania approved the EPA’s regulations. The Farm Bureau appealed to the Third Circuit Court of Appeals, and in January, Montana joined an amicus brief with Kansas, Indiana, and Missouri supporting the Farm Bureau’s position. Irrigation Leader

We believe these cases are important because the states must continue to assert their powers in order to prevent intrusion by federal bureaucracies. We believe that Montana’s elected government has authority under the U.S. and Montana Constitutions to regulate the waters of Montana, and I intend to fight to keep it that way. The federal government has participated in Montana Water Court as our statewide water adjudication proceeds. I welcome federal agencies, but again, we have to ensure through the adjudication process that they are doing their jobs, not shifting their burdens to the state. For example, the United States filed a motion two years ago in the Montana Water Court to essentially shift the burden of demonstrating that certain water rights have been abandoned from the federal government to the state government, and we opposed this motion. As water right claims are adjudicated, a party can file an objection saying someone has not used their water right for a certain period of time, and it is therefore abandoned. Any time an abandonment claim is before the Water Court, my office is joined as a party. An important part of a well-functioning water adjudication system is to declare abandoned rights to be terminated. It means we have a more accurate picture of who is using how much water, and it means junior water right holders have a more predictable supply picture. However, the burden is on the objector to start the ball rolling. The United States apparently felt that burden was too heavy. Instead of doing the examination work itself, it asked the Water Court to rule that the Montana Department of Natural Resources and Conservation (DNRC) should reexamine thousands of water rights for nonuse, so then the federal agencies and Indian tribes can file objections to senior Montana water rights as being abandoned. Consequently, DNRC would have to go back and reexamine water right claims, stretching out our adjudication for many more years and many more millions of dollars. So, my office filed a brief in the Water Court in January, essentially saying that the burden is on the objector and that the Water Court should not shift that burden to make DNRC do federal work. We will continue to advocate a well-functioning and effective adjudication in Montana and try to encourage efficiency so we can finish in the coming decade.

across our state are well financed and well maintained by irrigation districts or other organizations; some are not. Leaders across Montana want to know whether large bills will come due in the future, and who will be asked to pay them. Montana cannot afford to publicly finance every rehabilitation project within its borders, but we also recognize in many cases that the projects are behind in maintenance due to governmental problems and not just because of how private shareholders have operated their operations and maintenance budgets. Policymakers will continue to watch this closely. Second, consider future years of drought and increased competition for water, in spite of irrigation efficiencies. What will irrigation regulation look like across our state? Is there a consensus among water users that our current system works, and we do not need ditch riders and water commissioners everywhere? Or will we have water commissioners on almost every stream? Local irrigators need to be the driving force behind effective water regulation and sharing in our state, and I’ll look to them in future years as this issue comes to our attention every August. And finally, how can our water managers use the latest technology to improve Montana’s production and economic growth? Past decades saw the proliferation of the center pivot, side-roll sprinklers, gated pipes, drip-line irrigation, and other efficiency techniques. Future decades will bring highly sophisticated water applications guided by satellite imagery measuring crop evapo-transpiration. The future looks bright (and hopefully wet), and I am excited about the innovation of Montana irrigators and water stewards. I will do my best to be an effective partner for them as we look toward a prosperous future. Tim Fox is the 24th attorney general of Montana. He has more than 26 years of experience in public and private law practice. You can reach the attorney general’s office at (406) 444-2026.

So, where do we go in the next 20 years? First, despite all of Montana’s sprinklers, we still need ditches, dams, and other infrastructure for effective irrigation systems. Some of the ditch and dam projects Irrigation Leader

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E T A D E SAVE TH National Water Resources Association

WesteRN WAteR semiNAR Join us in the Cool Country of Flagstaff, Arizona

July 28â&#x20AC;&#x201C;30,2014

Water Law

Weighing in on the Expansion of “Waters of the United States” By Robert Johnson

n April 21, 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) (together, “the agencies”) published a proposed rule concerning the definition of “waters of the United States” under the Clean Water Act (CWA) in the Federal Register. The CWA regulates pollutant discharge into “navigable waters,” defined under the statute as “the waters of the United States.” (33 U.S.C. § 1251, 1344, 1362 (7)) The definition of “waters of the United States” determines the scope of water bodies to which permitting processes apply. The EPA’s Science Advisory Board (SAB) is currently reviewing a draft report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, which was to serve as the basis of the proposed rule. The EPA, however, has issued its proposal for comment prior to the completion of the SAB review. The effect of the proposed rule would place natural features not traditionally considered waters under the purview of the CWA and federal regulators. Further, the proposed rule would apply this expansionary interpretation of “waters of the United States” to all programs authorized under the CWA—from section 404 discharges of dredged or fill material, to the National Pollutant Discharge Elimination System (NPDES) permit program, to the section 401 state water quality certification process.

Legal Uncertainty ___________________ With the proposed rule, the agencies will supersede existing guidance documents, developed in 2003 and 2008, that frame how they currently identify waters protected by the CWA. Those guidance documents were drafted in light of two United States Supreme Court decisions: Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)) (SWANCC) and Rapanos v. United States (547 U.S. 715 (2006)) (Rapanos). In SWANCC, the Court concluded that CWA jurisdiction over 34

isolated, nonnavigable, intrastate ponds could not only be based on the presence of migratory birds. In Rapanos, the Court issued a plurality of opinions in addressing CWA protections for wetlands adjacent to nonnavigable tributaries. In Rapanos, Justice Scalia’s plurality opinion held that CWA should apply to waters and wetlands with a “continuous surface” connection to navigable waters. Justice Kennedy’s concurring opinion stated that the EPA or the USACE must prove, on a caseby-case basis, that a particular water or wetland has a “significant nexus” to a traditional navigable water. Justice Kennedy asserted that a significant nexus existed if wetlands affected the “chemical, physical, and biological integrity” of a navigable water.

The Proposed Rule__________________ The agencies purport to address Justice Kennedy’s concurring opinion in Rapanos. And, according to the EPA, the proposed rule merely codifies existing CWA implementation practices. However, the language of the proposed rule seems to expand CWA jurisdiction by modifying the definition of “waters of the United States” to include, among other items, • All tributaries of waters of the United States. Currently, tributaries are defined as a bed, a channel, and an ordinary high water mark. The proposed rule asserts that there is a significant nexus between all tributaries and navigable waters. So this proposed definition would include tributaries that retain their integrity as they move through other bodies, such as dams and wetlands. Further, intermittent and ephemeral streams, ever present throughout the arid West, as well as ditches and canals not wholly in an upland area, may fall under the scope of this definition. • All waters adjacent to navigable waters, incorporating floodplain areas, riparian areas, and groundwater (“waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water”). Existing regulations cover adjacent wetlands only. There are no bounds to this Irrigation Leader

concept—floodplains can span tens of miles, and the idea of a “subsurface hydrologic connection” is vague. In fact, the EPA admits, “Options could include asserting jurisdiction over all waters connected through a shallow subsurface hydrologic connection or confined surface hydrologic connection regardless of distance.” • Other waters such that “those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus” to navigable waters. The agencies are proposing that these other waters be scientifically determined to have a “significant nexus” on a case-bycase basis. The default position in each of these definitions is that a significant nexus is present, excepting “other waters,” which obviates the need for a case-specific significant nexus determination and places waters once thought to be beyond the scope of the CWA into its purview. The proposed rule also codifies what is not incorporated in the definition of “waters of the United States,” including • prior converted cropland • ditches that are excavated wholly in uplands, drainonly uplands, and have less than perennial flow • ditches that do not contribute flow, either directly or through another water • groundwater, including groundwater drained through subsurface drainage systems In addition, the agencies issued an interpretive rule clarifying the applicability of the permitting exemption provided under section 404(f )(1)(A) of the CWA to discharges of dredged or fill material associated with agricultural conservation practices. The proposed rule exempts 56 conservation practices commonly used by farmers to improve water quality.

Potential Impacts_______________________ The negative impact on water and agricultural providers may be significant. Farmers and water districts could be subject to costly federal permits and restrictions. These costs are exacerbated in these times of economic uncertainty, struggle, and drought. Moreover, many states have long-established agreements with the agencies in water-related matters, including section 404 guidelines. They serve as a basis on which farmers, wildlife enthusiasts, and construction firms may rely and comply with necessary rules. The proposed rule unnecessarily complicates existing state water quality regulations. This Irrigation Leader

expansion of federal authority over bodies not traditionally considered waters may lead to confusion, project delays, and unnecessary costs.

The Need for Public Comment___________ A 90-day public comment period commenced following the publication of the proposed rule. The agencies have identified many areas in need of comment, including • alternate approaches to determining whether “other waters” are similarly situated or have a significant nexus with waters of the United States • all aspects of definition of tributaries and, in particular, whether and how this definition can be revised to provide increased clarity as to the distinction between jurisdictional and nonjurisdictional • the formulation of the ditch exclusion, specifically, the appropriate flow regime for a ditch excavated wholly in uplands and draining only drain-only uplands • the specifics under which waters are considered to be outside a floodplain or riparian area The National Water Resources Association (NWRA) is studying all 88 pages of the proposed rule in great detail and will share comments from the perspective of state water resource associations throughout the arid West. The NWRA has already submitted a letter to request an extension of the comment period so that its members can absorb and process this comprehensive proposed rule. While NWRA members support the benefits that the CWA has provided to our nation and its waters, we are concerned about the potential adverse impacts that expanded CWA jurisdiction will have on water, irrigation, and power management. We encourage all those in water resource management who may be impacted—everyone— to also take the time to weigh in and ensure that your voice is heard. Bob Johnson is the executive vice president of the National Water Resources Association. He was the commissioner of the Bureau of Reclamation from 2006 to 2009. He can be reached at (202) 698-0693 or bjohnson@nwra.org.

Steven L. Hernandez attorney at law Specializing in

U.S. Bureau of Reclamation Contracts and Western Water Law 21OO North Main Street Suite 1A P.O. Box 13108 Las Cruces, NM 88013

Effective, proven, rapid control of submersed aquatic weeds and algae in irrigation systems for over 50 years. For more information contact:

(575) 526-2101

Wes Croxen, Western Aquatic Specialist 559.706.2460 wcroxen@alligare.com www.alligare.com 888.255.4427 is a trademark of Baker Hughes

Fax (575) 526-2506 Email:

slh@lclaw-nm.com

GMDA 2014 Summer Conference

June 4-6, 2014 Resots Casino and Hotel Atlantic City, New Jersey Reserve rooms for $79 + tax per night by calling Resorts Casino at 1-888-797-7700 Registration will be $245 until May 16 - $260 for late registration The Boardwalk provides easy access to all the excitement, entertainment and beauty of the Atlantic City shoreline, so make you plans now!

Family Farm

LLIANCE The Family

Farm Alliance is a powerful advocate for family farmers, ranchers, irrigation

districts, and allied industries in seventeen Western states. The Alliance is focused on one mission To ensure the availability of reliable, affordable irrigation water supplies to Western farmers and ranchers. As a 501(c)(6) tax exempt organization, our support comes exclusively from those who believe our mission is important enough to contribute. We believe the cause is important enough to ask for your support - Please join us by completing the web form at http://www.familyfarmalliance.org/ProspectiveContact.cfm.

For more information contact Dan Keppen by phone at (541) 892-6244, or by e-mail at dankeppen@charter.net

CLASSIFIED LISTINGS Middle Rio Grande Conservancy District Chief Engineer - CEO The Middle Rio Grande Conservancy District (the “MRGCD”) is soliciting applications for the position of Chief Engineer/Chief Executive Officer, a position established by state law (NMSA 1978, § 73-14-35) that serves at the pleasure of an elected Board of Directors. Under the direction of the Board of Directors, this professional position is responsible for implementing the MRGCD’s strategic objectives by planning, organizing, directing and overseeing the day-to-day activities and operations of the MRGCD, which provides irrigation, drainage for high water table areas and river flood control for the Middle Rio Grande Valley. The MRGCD also addresses environmental concerns and endangered species protection in collaboration with other agencies while recognizing the recreational benefits and opportunities of the MRGCD facilities and the Rio Grande Bosque. Minimum qualifications include a Bachelor’s degree in Civil Engineering and ten years of progressively more responsible management experience in the operation and maintenance of water delivery, flood control or other public works infrastructure. Qualified applicants must submit a completed MRGCD application to Christie Griego at cgriego@wwwlaw.us or at 1803 Rio Grande Blvd. NW, Albuquerque, New Mexico 87104. In addition, applicants are encouraged to submit a resume describing their experience and qualifications. Applications will be reviewed on or about May 1, 2014. While the position will remain open until filled, applications received after this date are not guaranteed consideration. Applications and a detailed job description are available at: http://mrgcd.com/Job_Opportunities.aspx or at 1931 Second Street SW Albuquerque, New Mexico 87102.

For information on posting to the Classified Listings, please e-mail

Irrigation.Leader@ waterstrategies.com

The MRGCD is an equal opportunity employer and all applicants will receive consideration for employment without regard to race, color, religion, gender, national origin, disability or veteran’s status. All qualified applicants are encouraged to apply. The MRGCD offers excellent benefits. The starting salary range for this position is $120,000 to $150,000, depending upon experience. The successful candidate should be available on or before November 1, 2014. Located in the southwest and western region of the United States, New Mexico is a great place to live and work. New Mexicans in the central part of the state enjoy a moderate climate, a vibrant art community and numerous cultural opportunities. For those who love the outdoors, New Mexico has everything from skiing, hiking, horseback riding, cycling, white water rafting and fly-fishing to beautifully designed golf courses. The population is diverse; New Mexico has the highest percentage of Hispanics, including descendants of Spanish colonists and recent immigrants from Latin America. It also has the second-highest percentage of Indigenous peoples consisting of mostly Navajo and Pueblo peoples. As a result, the demographics and culture of New Mexico are unique blend of Hispanic and Native-American influences. Those considering Central New Mexico may find helpful the following web sites’ comprehensive overview of living and working in this area and the vast recreational opportunities the region has to offer: City of Albuquerque (www.cabq.gov) Los Ranchos de Albuquerque (www.losranchosnm.gov) Visit Albuquerque (www.visitalbuquerque.org) Rio Rancho Chamber of Commerce (www.rrchamber.org) Valencia County (www.co.valencia.nm.us)

Naches-Selah Irrigation District Irrigation Patrolman Naches-Selah Irrigation District is looking to fill a Patrolman position. Duties: Operate & maintain canals and pipelines under direction of Lead Patrolman. Minimum Qualifications & Experience: Skilled laborer, construction, operate heavy equipment. Education: High School Diploma or GED. Required: WA Driver’s License and must obtain Public Pesticide Operator License within 90 days of hire. Wage and Benefits DOE. Request Detailed Description & Application Form: 509-697-4177 or info@n-sid.org. Send Application and Resume to: Attn: Personnel Dept., Naches-Selah Irrigation District, 620 Guinan Road, Selah, WA 98942 Closes: May 9, 2014

Irrigation Leader

2014 CALENDAR March 4–7 March 5–7 March 6 March 17–19 March 22–26 March 31–April 2 April 26–28 May 6–9 May 13–14 May 16 June 4–6 June 11–13 June 23–24 July 28–30

Committee on Irrigation & Drainage, Water Management Conference, Sacramento, CA Texas Water Conservation Assn., 2014 Annual Convention, The Woodlands, TX Colorado Water Congress, Statewide Basin Roundtable Summit, Golden, CO  Utah Water Users Assn., Utah Water Users Workshop, St. George, UT  Nebraska Natural Resources Districts, DC Conference, Washington, DC  National Water Resources Assn., Federal Water Issues Conference, Washington, DC American Society of Irrigation Consultants, National Conference, Portland, OR Assn. of California Water Agencies, Spring Conference & Exhibition, Monterey, CA Nevada Water Resources Assn., Water Rights in Nevada, Yerington, NV Agribusiness Council of Arizona, Annual Meeting, Scottsdale, AZ Groundwater Management District Assn., Summer Session, Atlantic City, NJ Texas Water Conservation Assn., Mid-Year Conference, Horseshoe Bay, TX Idaho Water Users Association, Summer Water Law & Resource Issues Seminar, Sun Valley, ID National Water Resources Assn. Western Water Seminar, Flagstaff, AZ

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.

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