Irrigation Leader October 2010

October 2010

Connor Highlights Reclamation Initiatives and Commitment to Open Communication with Irrigators

Irrigation District Managers:

The Irrigation Leaders of Western Water

The position of irrigation district general manager is unique and challenging. The men and women who occupy these positions are and must be exceptional individuals to succeed. They must possess a variety of skills and talents generally attributed to many different positions and professions, but rarely found or required in a single job. These managers must have the technical knowledge and engineering background to operate water delivery systems, the management and business skills to lead their employees and maintain a bottom line, the communication and professional skills to work effectively with their farmer customers and boards of directors, and the political skills to deal with the ever-increasing regulatory challenges imposed by Congress and federal and state agencies.

Irrigation district general manager is a stressful, pressure-cooker job with few comparisons, yet the men and women who serve in these positions do so with a professionalism and grace that is truly admirable. Their dedication to their farmers, employees, and boards is easily seen. One need only speak with them to know that they

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are always thinking and working toward solutions on a host of problems and challenges.

This magazine is dedicated to helping irrigation district general managers and their boards of directors do their very important jobs, to shining some light on their creative and innovative solutions, and to providing a venue through which the 600-plus irrigation districts in the West can learn from each other. This magazine is also intended to help irrigation districts, Congress, Reclamation, and the other federal agencies better understand each other and work together in the pursuit of solutions.

Kris Polly is editor-in-chief of Irrigation Leader magazine and president of Water Strategies, LLC, a government relations firm he began in February 2009 for the purpose representing and guiding water, power, and agricultural entities in their dealings with Congress, the Bureau of Reclamation, and other federal government agencies. He may be contacted by e-mailing Kris.Polly@waterstrategies.com.

Irrigation Leader

C O N T E N T S

OCTOBER 2010

2 Volume 1

Issue 1

Irrigation Leader is published 10 times a year with combined issues for NovemberDecember and July-August by: Water Strategies, LLC P.O. Box 100576 Arlington, VA 22210.

Staff: Kris Polly, Editor-in-Chief John Chisholm, Senior Writer Jean Schafer, Project Manager Robin Pursley, Graphic Designer 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. Letters to the Editor with name, address and phone number of the author are welcome. All letters are subject to editing.

ADVERTISING: Irrigation Leader accepts one-quarter, half-page, and full-page ads.

For more information, please contact our office by e-mailing 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 by e-mailing Irrigation.Leader@waterstrategies.com.

By Kris Polly, editor-in-chief

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Connor Highlights Reclamation Initiatives and Commitment to Open Communication with Irrigators

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Small-Scale Hydropower Offers Promise

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Irrigation Leader

Creative Solutions to District Healthcare Cost Concerns

By Tom Knutson, general manager, Farwell-Sargent Irrigation Districts

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Boundary Waters: Managing Water on the Mexican Border

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Protecting and Enhancing Western Irrigated Agriculture

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By Dan Keppen, executive director, Family Farm Alliance

Reclamation and the Federal Budget Process

By Darryl Beckmann, former deputy commissioner for policy and budget U.S. Bureau of Reclamation

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Proposed EPA Permit Process Threatens District Weed Management Techniques

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Piping Canals Without Conflict

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The Upper Colorado River Endangered Fish Recovery Program: A Success Story

By Tom Pitts, principal, water consult, Engineering and Planning Consultants

Water Law

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The Clean Water Act: Should the States Still Have a Role In It?

By Robert S. Lynch, Esq.

The Innovators

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Managing Fertilizer Rate Flow in Center Pivot Irrigation Systems

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District Applies Innovative Solution to Surface Weed Problems

Cover photo provided by

Valmont Irrigation

Irrigation District Managers: The Irrigation Leaders of Western Water

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Connor Highlights Reclamation Initiatives and Commitment to Open Communication with Irrigators

R

eclamation Commissioner Mike Connor recently responded to questions posed by Irrigation Leader editor-in-chief Kris Polly about the state of his bureau’s involvement with irrigators throughout the western states. Commissioner Connor’s comments spanned a range of Reclamation initiatives, including WaterSMART, the results of stimulus spending, and the rising interest in development of small-scale hydropower projects. In his remarks, he emphasized his commitment to maintaining open and ongoing communications with irrigation district managers as Reclamation aims to meet the challenges of the 21st Century.

Kris Polly: What should irrigation district

managers know about the WaterSMART Program?

Commissioner Connor: Established by Secretarial Order 3297, the WaterSMART Program is intended to help provide certainty and sustainability in the use of water resources. The program creates a framework to provide federal leadership and assistance on the efficient use of water, integrate water and energy policies to support the sustainable use of all natural resources, and coordinate the water conservation activities of the various Department of Interior bureaus and offices.

This program represents a tool kit that Interior can use in coordination with our irrigation districts and others to stretch available water supplies in a variety of ways. Reclamation’s components of the WaterSMART Program received increased funding levels in the FY 2011 budget request which, if approved by Congress, will help us meet the large demand for these programs.

For example, as compared to the FY 2010 enacted level, the FY 2011 budget request for WaterSMART grants increased by $9 million, and the basin studies program increased by $3 million.

In addition to infrastructure and operational improvements, better science and more collaboration

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are at the heart of the WaterSMART Program. I would like to take this opportunity to share information about Landscape Conservation Cooperatives (LCCs), which are now part of our basin studies program. Earlier this year, Interior developed a plan for a coordinated, sciencebased response to climate change impacts on land, water, cultural, and wildlife resources. LCCs represent the applied science branch of this strategy.

LCCs are partnerships of governmental (federal, state, tribal and local) and nongovernmental entities.

The primary goal of LCCs is to bring together science and resource managers to inform climate adaptation strategies within an ecological region or “landscape.”

LCCs across the country will form a national network.

LCCs will facilitate the development of applied science on climate change and other regional scale stressors.

LCCs will help provide information to resource managers regarding potential impacts of climate change as the partners develop resilience and adaptation Irrigation Leader

strategies for resources in the geographic location. LCCs will facilitate an ongoing dialog between scientists and resource managers to, among other things, help develop new water management strategies and evaluate the effects of new strategies and actions. Science information and support will come, in part, from the U. S. Geological Survey’s (USGS’s) Climate Science Centers.

Reclamation is co-leading, along with the Fish and Wildlife Service (FWS), the development of two LCCs in the Colorado River basin – the Desert and Southern Rockies LCCs. We are currently holding outreach meetings to engage key stakeholders, such as irrigation district managers, in these LCCs, and we encourage your participation.

Kris Polly: Reclamation received nearly a billion

dollars in stimulus funding through the American Recovery and Reinvestment Act of 2009 (ARRA). In general terms, how was this money used?

Commissioner Connor: Reclamation’s

Recovery Act-funded projects fall into six major investment areas. Projects to repair and replace Reclamation’s aging infrastructure were generally allocated funds under the “Infrastructure Reliability and Safety” or the “Future Water Supply Needs” investment categories.

Reclamation allocated $164.5 million of Recovery Irrigation Leader

Act funds for “Infrastructure Reliability and Safety.”

More than $130 million of that amount has been slated for high-priority infrastructure repair and replacement projects.

Kris Polly: How has the ARRA funding helped Reclamation address aging infrastructure and how will any excess ARRA funds be reallocated?

Commissioner Connor: Reclamation made

ARRA project selections using a multitiered, meritbased evaluation process. At the completion of that process, 191 projects were originally selected and approved by Interior and the Office of Management and Budget to be completed using Recovery Act funding.

During the course of implementation, some of these projects have been deferred or cancelled for a variety of reasons. Some other projects have come in below estimates, freeing up additional funds. The allocation of these ARRA funds is currently under review by Reclamation, Interior and the Office of Management and Budget, and will be allocated to additional alternate, or “over target” projects, consistent with the same multitiered, merit-based evaluation process used to select the original projects.

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Kris Polly: On July 29, you testified before the

House Water and Power Subcommittee on the topic of developing small hydropower resources on Reclamation projects. Do you see such projects as potentially helping irrigation districts address their own aging infrastructure challenges?

Commissioner Connor: Yes. Reclamation is working with stakeholders to facilitate the development of low-head and micro hydropower. Currently, Reclamation owns and operates four plants that fall within the definition of low-head hydropower, at Roza Diversion Dam in Washington, Minidoka Dam in Idaho, Nimbus Dam in California, and Boise River Diversion Dam, also in Idaho. We believe more opportunity may exist on facilities Reclamation owns, as well as non-Reclamation facilities that are associated with Reclamation projects.

In one instance, we provided WaterSMART grants to help develop a low-head hydropower project that would conserve water in addition to generating 0.75 megawatts of power. We are also looking at other opportunities to generate power in canals and other delivery systems where it makes sense from a water management, financial and environmental perspective.

Kris Polly: Reclamation’s Title XVI water recycling program has been credited with helping to reduce urban pressure on agriculture water sources. What is the future of this program and how close is Reclamation to announcing criteria for allocating Title XVI program funds?

Commissioner Connor: Title XVI is an important part of the WaterSMART Program. The FY 2011 budget request and the amount of Recovery Act funding dedicated to this program demonstrate that this is a high priority for Interior and this Administration.

Water reuse projects have a huge potential to stretch water supplies using both time-tested methodologies and piloting new concepts.

This spring, we made draft Title XVI funding criteria available for public review. We are revising those criteria based on comments and will post proposed changes at

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Reclamation’s website by September 30, with funding opportunity announcements to follow.

Kris Polly: California has experienced the extremes

in water supply challenges. What can you tell us of the current situation in California and what can irrigation district managers in California expect from Reclamation in the near term?

Commissioner Connor: In 2010, California is in much better shape for storage and water delivery than in 2009. Aided by improved hydrological conditions, Reclamation has been able to provide most of our Central Valley Project (CVP) contractors with 100 percent allocations for water year 2010. For agricultural service contractors south of the Sacramento San Joaquin River Delta, Reclamation has been able to provide 45 percent allocations for water year 2010, an amount that represents an improvement over the 10 percent allocation in water year 2009. Municipal and industrial contractors in the same area received a 75 percent allocation in 2010, a 15 percent improvement over 2009.

Over the next few years, irrigation district managers can expect similar focus and actions by Reclamation that occurred this year. Specifically, with respect to the allocation process, Reclamation will work to provide as much good information as early as possible so that it is available to water users when they need to make critical planning decisions. In addition, we will aggressively manage and look for opportunities to improve project water supplies to provide as much certainty as possible.

Reclamation is working with all water users on shortand long-term actions to improve California’s ability to deal with droughts and the reduced availability of water due to hydrological and environmental conditions.

Some of these actions include facilitating and supporting water transfers, using groundwater banks, and further diversifying water supplies. Moreover, Reclamation is continuing to explore all options available under our legal authorities and California water law to help relieve drought impacts on CVP water users and provide any available operational flexibility to convey and store water.

Conservation remains a key component of our Irrigation Leader

efforts. Reclamation just announced the selection of 10 WaterSMART projects in the Central Valley. The awards total $2.7 million and are collectively expected to conserve 49,000 acre feet of water per year. These projects will be awarded by September 30, 2010, and construction will begin in 2011.

Irrigation district managers also can expect increasing levels of cooperation between Reclamation and its federal and state partners. For example, recognizing the complexity of moving water through the Delta, in May Secretary Salazar and Secretary Locke announced a joint initiative to develop a single integrated BiOp for the California-Bay Delta and related water operations for the Central Valley Project and the State Water Project.

The initiative has a two-fold strategy: • Near-term development and analysis of additional science to address issues raised by the National Academy of Sciences with regard to the current FWS and National Mariene and Fisheries Service (NMFS0 BiOps on water projects operations. The immediate goal is to incorporate new science into the process for implementing the BiOps by 2011. • Develop a single integrated BiOp based on a joint science program that encompasses input from FWS, USGS, Reclamation, NMFS, and state scientists, all in cooperation with the Bay-Delta Conservation Plan (BDCP).

The goal of the BDCP is to provide both species and habitat protection while improving reliability of water Irrigation Leader

supplies. Development of the plan is being led by state and federal agencies, including Reclamation.

In sum, we remain committed to working with our partners toward restoration of the Delta ecosystem and creating a more reliable water supply for all water users and other stakeholders throughout the region.

Kris Polly: What message do you have for

irrigation district managers in the 17 western states?

How would you encourage them to work with Reclamation?

Commissioner Connor: Irrigation district

managers are key partners for Reclamation as the bureau seeks to fulfill its ever-evolving mission to help the West meet its water and energy needs. It is my intention to maintain open and ongoing communications with them at all levels of the organization in order to promote certainty and sustainability in the use of water resources.

I also want to make sure that they are aware of a new opportunity to coordinate and communicate with Reclamation and other Interior bureaus, namely the LCCs, as I already mentioned. I encourage all irrigation district managers to participate in this and other initiatives, because their expertise will provide critical input into our effort to address the wide array of challenges facing water users in the 21st century.

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Small-Scale Hydropower Offers Promise A

fter attending a conference presentation on the potential of low-head hydropower development two years ago, Elephant Butte Irrigation District (EBID) Treasurer-Manager Gary Esslinger drove to a check structure along one of his district’s canals. As water rushed over the structure’s drop at 300 cubic feet per second, he wondered whether EBID could harness this energy by installing turbines to generate electricity at the site.

Though commercial turbines are available for purchase, Esslinger feared their cost, often more than $50,000, was too high. Instead, EBID began an internal effort to develop its own turbine model. “After some trial and error, we eventually developed a prototype for which we fabricated our own axial flow turbine,” Esslinger said during recent congressional testimony on low-head hydropower. “Testing indicated the axial turbine is capable of producing 12 kilowatts, the same as the expensive commercial products we observed in place at other water districts.”

During the hearing, House Water & Power Subcommittee Chairwoman Grace Napolitano (D-CA) 8

praised EBID’s efforts as “American ingenuity at its best.”

Ultimately, Esslinger estimates the cost of the turbine’s fabrication was $3,500, roughly 7 percent of the commercial cost for a similar turbine. “I believe many irrigation districts throughout the western United States maintain similar in-house capabilities to develop hydropower turbines at low cost,” he said.

EBID has since partnered with Los Alamos National Laboratory to further refine the design of its turbine.

Additionally, EBID established a relationship with Sandia National Laboratory to inventory its irrigation system in an effort to identify additional engineering structures capable of hydropower development.

To take advantage of further cost-saving opportunities, EBID plans to install its turbines concurrently with routine replacement of other canal structures, many of which are over 70 years old. “This reduces the marginal cost of the hydropower installation substantially,” Esslinger said.

Despite these efforts, EBID’s pilot hydropower facility does not yet contribute electricity to the grid. The Federal Irrigation Leader

Energy Regulatory Commission (FERC) governs hydroelectric power generation and EBID must apply for an exemption to FERC’s licensing requirements to legally connect to nearby power transmission lines. This exemption is available to hydropower projects constructed on existing, manmade, nonmunicipal water conduits capable of producing less than 15 megawatts of power.

Though simpler than the formal licensing process, obtaining a conduit exemption requires applicants to consult federal and state agencies, as well as develop formal documentation for submission to FERC for approval. Additionally, depending on timing and location, grouping applications for facilities to be built in different locations may not be possible. “EBID will likely have to file dozens of applications [to develop hydropower sites across the district] due to differences between each site and construction timing,” Esslinger said.

Because projects must begin within two years of application finalization and be completed within four years, complications at a specific site could delay development of the overall hydropower potential of the district at-large. For example, if a site covered by an accepted application faces setbacks, EBID would be unable to develop a similar site nearby instead.

Though FERC recently undertook efforts to further streamline the conduit exemption process, it lacks the statutory authority to grant broad rights to develop micro hydropower projects. However, recent regulatory and legislative proposals aim to provide this authority.

Specifically, Congressman Adrian Smith (R-NE) introduced H.R. 5922, the Small-Scale Hydropower Enhancement Act of 2010, to exempt projects built on existing, manmade water conduits from FERC regulation if they will produce less than 1.5 megawatts of power.

Esslinger believes such proposals are necessary to begin the development of small hydropower more broadly. “The economic feasibility of this technology is narrow,” he said.

“High regulatory compliance costs could very well tip the balance against the project.”

Esslinger and other EBID staff recently led a tour of their pilot facility for EPA staff members. Other policymakers have also toured the facility, including Senator Jeff Bingaman (D-NM) and Congressman Jeff Teague (D-NM). Esslinger believes this increased interest demonstrates the demand for renewable hydropower exists. “With an easy-to-navigate regulatory environment, our efforts could be replicated on a wider scale,” he said.

Gary Esslinger is the treasurer-manager of Elephant Butte Irrigation District in Las Cruces, New Mexico.

He can be reached by phone at (575) 526-6671, or e-mail at gesslinger@ebid-nm.org.

Irrigation Leader

Gary Esslinger discusses EBID turbine structure.

EBID turbine chain drive system with generator.

Turbine fabricated by EBID district employees for $3,500.00 produces nearly 7kw of electricity.

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to

By Tom Knutson

T

Creative Solutions District Healthcare Cost Concerns

he healthcare debate that erupted in Congress last year brought the ever-increasing cost of healthcare to the national spotlight. Unfortunately, irrigation districts throughout the West have long struggled to manage the impact of rising employee healthcare costs on their primary mission to deliver water.

In 1990, Farwell Irrigation District implemented a program aimed at mitigating these costs while maintaining a comprehensive benefit program for employees. The idea is simple: we reduced our premiums by increasing the deductible with our insurance provider. However, instead of leaving our employees responsible for the increased deductible, we self-insure between the standard deductible (up to which the employee is responsible) and the higher deductible (over which the insurance company is responsible).

For example, assume the annual deductible on our standard health insurance plan is $500 per employee, meaning each employee is personally responsible for healthcare costs up to $500 each year. To reduce the premiums the district pays to the insurance provider each year as a benefit to our employees, we agreed to increase the annual deductible to $1,000 per employee. However, instead of leaving our employees responsible for an additional $500 in healthcare costs per year, the district 10

became responsible for the costs incurred between the $500 employee deductible and the $1,000 amount over which our insurance company becomes liable.

The inherent risk of this strategy is that the district is directly liable for a portion of each employee’s healthcare costs. However, we mitigated this risk by establishing a fund into which we contribute the savings from the reduced premiums. For example, assume our monthly per employee premium under the standard health insurance plan was $600 and the reduced premium for the higherdeductible plan is $400. We contribute the $200 in savings to the fund.

Ultimately, this strategy reduced our health insurance premiums by about 50 percent and we currently maintain approximately $250,000 in the fund. Not only do we use the savings fund to make up any difference between the employee deductible and the insurance provider deductible, but also to fully self-insure dental and vision care for our employees up to a predetermined threshold. Effectively, the cash saved on health insurance premiums allows us to provide premium-free dental and vision insurance.

Though the general idea of lowering healthcare premium costs by allowing for a higher deductible may be relatively easy to grasp, districts considering similar plans should also consider the specifics involved in implementing the strategy.

Of primary consideration is the amount of the deductible above which the insurance provider will be responsible for employee costs. When we implemented Irrigation Leader

our program in 1990, we initially set our deductible at $1,000. A couple of years later, after building up our premium savings fund, we raised the insurance provider deductible further, to $5,000. Then, in the late 1990s, we once again raised the deductible to $10,000. However, after a series of high-dollar claims in 2001, we ultimately decided to reduce the deductible back to $5,000. Our experience serves as evidence that there may not be a one-size-fits-all approach, and districts should carefully consider the benefits and risks of any proposed deductible level.

Additionally, claims management of a partially selfinsured program may be a foreign concept to some districts accustomed to programs managed directly by insurance providers. However, we contract with a plan administrator for a relatively nominal fee per employee to manage the claims process as well as the interaction with the insurance provider. District management spends only limited time handling the program.

Finally, although our contracted plan administrator handles the claims process, the district manages the upkeep of the savings fund itself. We keep about 70 percent of our fund in FDIC-insured certificates of deposit, with the

remainder held in an interest-bearing checking account to pay claims as necessary. Importantly, the interest from these accounts is not taxed due to the district’s status as a tax-exempt governmental entity.

In my 25 years as district manager, I am proud to say that we have lost only four employees for reasons other than retirement. Our comprehensive healthcare program is a key reason for our high rate of employee retention and I credit this creative solution to managing costs with our ability to maintain this important offering for our employees.

Tom Knutson is the general manager of Farwell Irrigation District in Farwell, Nebraska. He can be reached by phone at (308) 336-3341, or e-mail at t819@mainstaycomm.net.

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The location of the border fence hinders EPCWID #1’s access to about 12 miles of canal bank. A federal government contractor now maintains the side of canal bank directly adjacent to the fence.

Boundary Waters:

Managing Water on the Mexican Border A

s the supposed El Paso County Water Improvement District #1 (EPCWID #1) supervisor’s truck rambled across the Mexican border into the United States, an experienced border patrol agent looked on from a distance.

District trucks regularly operate along the border and the agent thought there was little cause for concern. However, this truck carried 800 pounds of marijuana destined for the American market.

Unfortunately for the drug smugglers driving the cloned EPCWID #1 vehicle, a rookie border patrol agent became curious as to why a Texas irrigation district truck would wander into Mexico and gave chase. After apprehending the smugglers, border patrol agents phoned EPCWID #1 General Manager Jesus “Chuy” Reyes.

Reyes and the district supervisor assigned to the truck were astonished to see the level of detail the smugglers took to copy their vehicle. A side-by-side comparison revealed that the smugglers accounted for even the smallest details, including the Texas government license plate and 12

helicopter identification number placed on top of the truck’s cab.

Though not everyday incidents, Reyes’s seven-year tenure as general manager at EPCWID #1 has been marked by border-related issues. Prior to the construction of the border fence, federal agents detained a crew of EPCWID #1 employees and forced them to lean against their vehicle as if being arrested. “They can do their job, but they don’t have to be abusive,” Reyes said, referencing border patrol interactions with district employees.

Reyes responded to the incident by demanding respect for his employees from the border patrol, but also took practical steps to help EPCWID #1 staff identify themselves more easily during future stops. These steps included requiring employees to carry district-issued picture identification badges at all times, as well as adding distinctive markings to district vehicles that can been seen from both the ground and air.

Irrigation Leader

Border patrol agents regularly operate near EPCWID #1 irrigation works and use the same service roads as district employees.

However, new tensions arose in 2008 as the federal government prepared to construct the border fence. As planned, the fence’s placement hindered access to 12 miles of canal bank, potentially preventing EPCWID #1 staff from maintaining this critical component of the irrigation system. “There were some pretty heated discussions at the beginning,” Reyes said.

After making several trips to Washington to lobby against the fence’s location along the canal bank, Reyes and the EPCWID #1 board of directors decided to sue the federal government. Along with the increased difficulty in performing maintenance along the stretch of canal adjoining the fence, Reyes was concerned with additional wear-and-tear on the canal bank from border patrol operations. Ultimately, the fence was built in its planned location, but EPCWID #1 won $1.2 million in compensation to make up for increased costs related to the fence after declining the government’s initial $36,000 settlement offer.

Irrigation Leader

Despite these past conflicts, Reyes believes the district maintains a good working relationship with the border patrol. EPCWID #1 is currently working with federal officials as they seek to build a number of canal crossover bridges near border fence openings to increase federal agent access without disrupting district operations.

Today, district employees do not cross to the Mexican side of the fence and a private contractor hired by the federal government maintains the stretch of canal bank bordering it. However, EPCWID #1 employees continue to occasionally encounter drug-smuggling activities.

Shortly after the fence was constructed, a crew of district employees mowing along the canal hit a 200-pound bundle of marijuana apparently thrown over the fence by smugglers and awaiting pickup by others on the American side. More recently, a crew working at night encountered drug smugglers near EPCWID #1 facilities and contacted local police, who were unable to respond quickly enough to apprehend anyone.

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Jesus “Chuy” Reyes, general manager of El Paso County Water Improvement District #1 in Clint, Texas.

These incidents not withstanding, Reyes believes the border fence brought a certain measure of security to his employees, as approximately 80 percent of the district is now physically separated from the Mexican border.

Aside from its border-related issues, EPCWID #1 also faces dilemmas in its relationship with the City of El Paso to its immediate north. When Reyes took over as general manager in 2003, there were 18 pending lawsuits between EPCWID #1 and the city’s water utility. “There had been a fracture between our board and their board,” Reyes recalls.

Recognizing the tenuous relationship between municipal and agricultural water interests, Reyes immediately sought to repair relations. The boards held a joint meeting shortly after Reyes took over in which six of the lawsuits were settled in the room.

In 2006, the mended relationship proved useful as the city and EPCWID #1 coordinated emergency relief efforts in response to a major flood in the area. Flooding forced many from their homes and El Paso’s mayor considered ordering an evacuation of the city that would 14

have displaced countless others. However, prior to the evacuation order, Reyes and EPCWID #1 staff observed that floodwaters were actually subsiding according to telemetry data. Based on this information, the mayor never gave the order to evacuate.

Reyes aims to continue to play a role coordinating efforts both locally and statewide. At press time, EPCWID #1 was preparing for a major emergency drill in coordination with other local agencies to prepare for future flood scenarios. Additionally, Reyes was recently elected president of the Texas Irrigation Council, an association representing irrigation districts throughout Texas. In this new role, Reyes hopes to serve as an advocate for irrigation interests in his state.

Jesus “Chuy” Reyes is the general manager of El Paso County Water Improvement District #1 in Clint, Texas.

He can be reached by phone at (915) 872-4000, or e-mail at jreyes@epcwid1.org.

Irrigation Leader

Protecting and Enhancing Western Irrigated Agriculture

By Dan Keppen executive director, Family Farm Alliance

W

ater is the key to the American West. No other commodity holds so much power or so much promise, and no other commodity has the oftenrealized potential to cause so much conflict. As the West has grown, water issues have become increasingly polarized. We face a number of significant challenges in the western water arena. Growing urbanization and increased public demand for available supplies to provide recreational and environmental benefits are placing heavy demands on western water, the key ingredient in the production of agricultural products.

Fortunately, the Family Farm Alliance—for over two decades—has stood up for western family farmers and ranchers to defend irrigated agriculture.

We think the Family Farm Alliance gives our contributors a huge bang for their buck. The Alliance was founded in the early 1990s with one overriding ethic: agriculture doesn’t need another association, but it does need an effective, low-cost grass-roots group that can get the job done. That belief was our foundation and it still drives every decision we make. All staff work is done under contract so we maintain flexibility and very low overhead. And we have a proven track record of success that includes 25 invitations to appear before Congress since 2005. Further, in the past two years, President Obama and former President Bush have signed into law measures advocated by the Alliance that will: • Give irrigators tools to finance aging infrastructure (Rural Water Supply Act).

• Set caps on site security costs charged to U.S. Bureau of Reclamation water customers.

• Provide funding that allows irrigation districts and large producer groups to undertake water supply and water quality enhancement projects (Farm Bill Agricultural Watershed Enhancement Program).

• Authorize science-based decision making and funding opportunities for water development projects via new climate change legislation (SECURE Water Act).

• Provide $1 billion in stimulus funding for Reclamation, including over $140 million to address aging water infrastructure projects in the West.

Irrigation Leader

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• Improve canal safety in urbanizing areas, working with Senator Harry Reid of Nevada. This new law authorizes the Secretary of Interior to advance the costs incurred for “extraordinary operation and maintenance work” and to repay the costs over 50 years, with interest. The 50-year repayment option applies to both reserved works and those works transferred to local entities by Reclamation. The Alliance was the only nongovernmental witness asked to testify on Senator Reid’s bill as it moved through committee.

Four years ago, the Family Farm Alliance launched an aggressive and forward-looking project that pulls together a master database of potential water supply enhancement projects from throughout the West, called the “Western Water Supply Enhancement Study.” The Alliance also worked with Congress to develop provisions in the Energy Act that would require Reclamation to provide an update on all authorized storage studies and projects in the western United States.

The Family Farm Alliance in December 2008 employed the Information Quality Act (IQA) and demanded that the federal government justify decisions that take hundreds of thousands of acre feet of water away from Central Valley farmers in the name of protecting a 2-inch fish called the Delta smelt. In July 2009, for the first time in the history of our organization, we filed suit to force the withdrawal of the federal government's latest order cutting back California’s water supplies on behalf of the Delta smelt. It is not a step we took lightly. We want the court to order the U.S. Fish and Wildlife Service to revise its biological opinion to comply with the standards for the use of data that the Endangered Species Act and the IQA have set to protect the public and the environment from arbitrary, biased and unscientific abuses of federal authority.

We continue to build coalitions and create powerful alliances to advocate for irrigated agriculture. The Alliance is one of six representatives on the steering committee for the Coalition for Conservation through Ranching. This innovative coalition includes several national farming and environmental organizations that will work to support working ranches and healthy and productive landscapes on public and private lands in the West. The Family Farm Alliance is also part of a small group of diverse interests preparing to tackle an issue that is of paramount interest to western irrigators: transfers that move water away from agriculture and toward other competing needs. The Alliance is engaging with its new urban and environmental partners in a new initiative funded by the Walton Family Foundation that will seek to develop innovative strategies for sharing water in the Colorado River Basin.

On an everyday basis, we continue to facilitate the delivery of accurate and timely information to Congress, 16

regulatory agencies, the media and our members on issues that impact western irrigators. For more on the Alliance’s recent activities, please download our 2009 Accomplishments report, which can be found on the home page of our website: www.familyfarmalliance.org.

Farmers, ranchers and the businesses they rely upon face enough challenges, let alone worrying about whether once-certain water supplies will be available to support their operations. On the other hand, there are countless environmental activist groups—many with budgets in the tens of millions of dollars—that are doing everything in their power to influence courts, media and politicians to reallocate water supplies away from agriculture. And those same activist groups are already wielding major clout with our new President and Congress.

Grassroots membership is vital to our organization.

For more information on the Family Farm Alliance, please visit our website www. familyfarmalliance.org or contact Executive Director Dan Keppen at (541) 892-6244.

Irrigation Leader

Reclamation and The Federal Budget Process

By Darryl Beckmann

D

uring my years with Reclamation and interaction with customers and stakeholders, the budget process has been a source of concern and frustration. Unfortunately, that frustration will continue to be exacerbated by continued budget constraints resulting from the growing federal deficit and competition for limited financial resources.

I can tell you from my own experience that Reclamation employees can be just as frustrated.

They are dedicated individuals who believe in their mission and the importance of the many programs that further their goals, and they are often disappointed by the decisions of the Office of Management and Budget (OMB) when funding recommendations are handed down (often referred to as “passback”) that reduce, and sometimes even eliminate, critical funding for programs and initiatives. However, it is important to keep in mind that they are public servants who work for a federal agency that is part of the executive branch of government. At the end of the day, they work for the President and support his budget, regardless of what their personal feelings may be.

Reclamation’s customers and stakeholders do have an opportunity for input into Reclamation’s budget request and are encouraged to participate in the process. I would like to take this opportunity to explain the federal budget process as it pertains to Reclamation to those who may not be aware of exactly how it works and when there is opportunity for nonfederal input.

The federal budget process consists of four phases—formulation, justification, execution and audit. I will confine this discussion to the first three as the audit phase is primarily internal oversight.

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Formulation:

Budget formulation or preparation is a complex, bottom-up process in Reclamation. By that I mean that each manager in Reclamation is responsible for identifying his or her project or program needs and the funding and staff resources necessary to accomplish the objectives. Such needs could include funding for a spillway gate repair, the painting of a parapet wall, the purchasing or replacing of necessary equipment, the dredging of channels, an authorized wastewater reuse project, or a climate change study. This process usually begins in the summer months.

This is the opportunity for Reclamation customers to provide input into the budget process. Reclamation’s recently concluded Management for Excellence initiative committed to its customers that area managers would meet with their respective customers to seek input and explain budget proposals and I encourage all district managers to take full advantage of this opportunity.

All of the budget requests are then rolled up to their respective Reclamation directors. The directors then scrub and prioritize their proposals based on the criteria provided by the Commissioner.

In the fall, the Commissioner communicates his priorities and initial funding targets to the five regional directors and directors in the Denver and Washington, DC, offices. In developing Reclamation’s targets, the Commissioner considers the OMB out-year targets and incorporates the priorities of the Secretary of the U.S. Department of the Interior (DOI) and Assistant Secretary, Water and Science. This communication also initiates the Budget Review Committee (BRC) process within Reclamation.

The BRC is a group of senior Reclamation managers chaired by a senior executive. The role of the BRC is to: review Reclamation’s collective budget proposal from a corporate perspective; evaluate the needs based on the Commissioner’s priorities through individual meetings with each Reclamation director and his or her senior staff to seek clarification and further justification regarding the content of their budget proposal; and deliberate on their findings to present a fiscally responsible Reclamation-wide budget to the Commissioner for his consideration. The BRC usually begins its work in March and concludes in May. Upon his final decision, the Commissioner will submit his budget request through the Assistant Secretary, Water and Science, to the Secretary for consideration in DOI’s

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budget submission, usually sometime during June or July.

This is where the frustration can and often does occur, because it triggers the beginning of a series of passbacks.

Often, there are tradeoffs or reductions based on the administration’s priorities. We must remember that the Assistant Secretary, Water and Science must review and evaluate the budget requests of Reclamation and the U.S. Geological Service prior to forwarding to the Secretary.

The Secretary has requests from eight bureaus to consider and all of the politics associated with them. The Secretary is faced with the task of submitting a fiscally responsible budget that OMB will recommend to the President that balances national needs and priorities from all of his bureaus and recognizes the realities of extremely limited financial resources.

DOI will passback decisions to each bureau in late July or August and provide an opportunity for bureau appeals.

This process is usually very time sensitive. The Secretary will then submit DOI’s budget to OMB in September— often referred to as “budget estimates.” All information regarding the content of the budget is embargoed pending the President’s budget presentation to the Congress.

OMB will review and evaluate each executive branch agency’s budget request and passback results of its deliberation to the agencies in November, around Thanksgiving. The passbacks usually result in reductions and/or tradeoffs among projects and programs. Sometimes they even result in elimination of entire funding for a project, program or initiative. Each agency is given a very short time to review the passback and submit applicable appeals. The bureaus revise their budget estimates based on OMB’s decision, which becomes the source of the President’s budget—often referred to as “budget justifications.” The President presents his budget to the Congress in February.

Justification: The President’s submittal of his budget to the Congress initiates the justification phase of the budget process. This is also referred to as the appropriations process. This is another opportunity for Reclamation’s customers and stakeholders to have input into Reclamation’s budget. During this phase of the process, both houses of Congress establish appropriation committees and subcommittees to review and deliberate the President’s budget request, and (hopefully) agree on an appropriations bill that the President will sign. These committees often hold hearings in which many of you have Irrigation Leader

the opportunity to testify. During this process that usually begins in early spring, the committees hold hearings in which the commissioner as well as many customers and stakeholders are called on to testify. I know many of you are familiar with this process and you and your respective congressional representatives are often frustrated by the position that Reclamation must take. However, as I stated, Reclamation employees support the President’s budget regardless of their personal views.

This phase of the budget process also often results in disappointment due to further budget cuts or tradeoffs and is designed to culminate with the President’s signing of the Energy and Water Development Appropriations Act by September 30. However, in my experience, we rarely had an appropriation act signed on time. As many of you know, we often operate on a continuing resolution (CR) pending an appropriations act for a short time, and sometimes all year long—another frustration.

Execution:

Passage of the appropriations act (or CR) begins the budget execution phase of the budget process.

This provides the ability to obligate and expend the funds that Congress appropriated throughout the fiscal year or, in the event of a CR, expend through its duration.

Reclamation managers must monitor the progress and status of these funds to ensure maximum program accomplishment. There is also opportunity to transfer or reprogram funds within specified limits should the need arise such as for inclement weather or other exigencies.

It is important to note that all of these phases of the budget process occur, to some extent, simultaneously.

Reclamation’s managers are juggling three to four years of program and budget information to ensure that Reclamation is in the best-possible position to achieve the goals and objectives of its mission.

For example, as of this writing, Reclamation managers are nearing the end of executing their FY 2010 budget (current year); in the final stages of the justification/ appropriation process for their FY 2011 budget (budget year) and will hopefully begin executing it next month; in the final process of submitting their recently formulated FY 2012 budget (budget year +1) to OMB; and beginning to formulate their FY 2013 budget.

I will close by restating what many of you have heard before. Reclamation employees are prohibited from lobbying in any fashion for more funding. They support the President’s budget and operate at the pleasure of Irrigation Leader

Congress. Your congressional representatives are your best avenue to have an effect on increasing Reclamation’s budget. I know this can be a frustrating route as well due, once again, to the many competing demands on very limited financial resources.

Darryl Beckmann is the former deputy commissioner for Policy and Budget of the U.S. Bureau of Reclamation.

He served with Reclamation for 34 years before retiring in December 2009. He and his wife Nancy now live in Monument, Colorado.

To contact Darryl, please phone (720) 575-0557 or e-mail b8darryl@aol.com.

Integrated Water Planning, Permitting, Design & Construction Services SUPPLY MANAGEMENT PERMIT COMPLIANCE OPERATION OPTIMIZATION RENEWAL & REPLACEMENT WATER QUALITY CONTROL CLIMATE CHANGE STUDIES SOURCE AUGMENTATION POWER GENERATION WATER TRANSMISSION John Maxwell, P.E. 360.570.4400 www.hdrinc.com/water

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EBID staff members demonstrate the vehicle the district uses to apply herbicide to canal ditches. EBID sprays a low rate of certain generic herbicides to control horsetail weed growth along district canals.

Proposed EPA Permit Process Threatens District Weed Management Techniques I rrigation districts throughout the West have long applied herbicides on or near canals, laterals, and ditches to control the growth of weeds that threaten to disrupt their operation. However, the U.S. Environmental Protection Agency’s (EPA’s) response to a recent court decision may impede this application as it invites additional regulation and an avenue for citizen-led lawsuits.

In 2009, the Sixth Circuit Court of Appeals overturned an EPA rule exempting pesticide use from the National Pollutant Discharge Elimination System (NPDES) permit process, provided pesticides are applied in accordance with Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) label requirements. Authorized by the Clean Water Act, NPDES permits are required for point source pollutants discharged into waters of the United States.

Whether the court’s decision should extend to irrigation districts is a matter of contention. According to Idaho Water Users Association (IWUA) Executive

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Director Norm Semanko, the court’s opinion centered on the definition of a “pollutant.” However, the opinion did not reference the delineation between point and nonpoint source activities or the definition of waters of the United States.

Historically, irrigation district herbicide use is exempt from the NPDES process under the statutory irrigation return flow exemption provided by the Clean Water Act. Based on EPA interpretation of this guidance separate from that overturned by the court, herbicide use in irrigation systems does not qualify as a point source activity because it is intended to ensure the transportation of return flows.

Despite this history, EPA’s draft general permit released in June would require irrigation districts to comply with NPDES requirements. “We can’t live with this,” Semanko said. “Consumers can’t afford the delays and costs associated with more stringent requirements.”

Irrigation Leader

Compliance with NPDES guidance would require irrigation districts to develop pesticide management plans and submit annual reports related to their herbicide use. Many consider these additional requirements to be overly burdensome and argue that they yield no marginal environmental benefit, given that irrigation districts must already use herbicides according to EPA-approved FIFRA labeling.

Perhaps more importantly, however, the permit would bring irrigation district herbicide use under the Clean Water Act umbrella. While FIFRA does not provide for citizen-led lawsuits, the Clean Water Act does provide this authority, making districts more susceptible to legal action by environmental groups.

Although the formal comment period related to the draft general permit closed in July, education and lobbying efforts are still underway. Recently, EPA staff members responsible for developing the permit toured Elephant Butte Irrigation District (EBID) in southern New Mexico.

EBID faces problems associated with the growth of horsetail weeds along the banks of ditches throughout its irrigation system.

“It’s like mowing straws,” said EBID TreasurerManager Gary Esslinger. “It’s problematic wherever you go.”

EBID uses a low rate of generic herbicides to manage the weeds without harming other plants considered helpful to maintaining the integrity of the ditches. This reduces the amount of heavy mowing required to keep the weeds from clogging district irrigation structures.

“Usually we need a backhoe following along a mower,” Esslinger said, referencing the difficulty EBID faces in controlling the weeds along its 110 miles of canals.

Esslinger and other EBID staff members highlighted their concern that additional regulation hindering their ability to apply herbicide will ultimately result in significant added costs, as it would force them to increase the frequency of mowing.

Significant problems also exist in Idaho as aquatic weed growth raises both water delivery and public safety concerns. Irrigation districts throughout the state must apply aquatic herbicides to manage these weeds that ultimately threaten to overtop canals.

IWUA highlighted its concerns to its local EPA contact, who serves as a member of the NPDES general permit working group. The association’s efforts have been sustained through multiple meetings and a tour of facilities in the Boise area. “It’s just constant communication on our issues and concerns,” Semanko said.

Despite these efforts to educate EPA staff members, Semanko believes Congressional action may ultimately be necessary to ensure irrigation districts are not forced to subscribe to the NPDES process when already complying Irrigation Leader

with FIFRA label guidance. Two bills, H.R. 6087 and S. 3735, intended to ensure that no additional permit is required when pesticide users act in accordance with FIFRA, were recently introduced in the House and Senate.

“Unless Congress intervenes, that permit is going into effect,” Semanko said, calling the action “absolutely appropriate and timely.”

Though Semanko maintains that EPA should expressly recognize the application of the irrigation return flow exemption to irrigation district herbicide use in its final permit, legislation is likely the only prospect for municipal applicators. “It’s a team effort on legislation with municipal pest control [interests],” he said.

EPA plans to issue a final permit in December that will take effect on the court-ordered deadline in April 2011.

However, some states are clamoring for EPA to request an additional stay from the court. Though the EPA’s general permit will be effective in states such as Idaho and New Mexico, where it acts as the designated permitting authority, 44 other states must issue their own comparable permit. This may be difficult to accomplish prior to the court’s deadline if states wait until December to use EPA’s permit as a benchmark.

Though a stay beyond April 2011 could be helpful to allow more time to meet the permit’s requirements and potentially gain support for legislation, Semanko indicated it will not ultimately solve the issue. “A stay in itself does not address our concerns, it is not an answer in itself,” he said.

Norm Semanko is the executive director of the IWUA in Boise, Idaho. He can be reached by phone at (208) 344-6690, or e-mail at norm@iwua.org.

Gary Esslinger is the treasurer-manager of Elephant Butte Irrigation District in Las Cruces, New Mexico. He can be reached by phone at (575) 526-6671, or e-mail at gesslinger@ebid-nm.org.

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Piping Canals Without “W

ho knows what their real estate agent told them?” said Central Oregon Irrigation District (COID) General Manager Steve Johnson of landowners in newly urbanized areas surrounding his and other districts’ canals.

Beginning in 2002, COID followed the lead of other surrounding irrigation districts and began to pipe canals in certain areas experiencing increased urban growth. The unprecedented urbanization in the region forced COID to contend with new homeowners more concerned with water feature aesthetics than water conservation efforts as canal piping plans progressed. “Basically, a six-month-a-year water feature went away,” Johnson said, citing his belief that homeowners likely paid extra for property overlooking district canals without knowledge of the irrigation district’s right-of-way in the area.

District boundaries include two of the fastest-growing cities in the state and 10 percent of the district has been designated for urban growth within the next 20 years. The issue is amplified in some smaller irrigation districts in the immediate area, where up to 50 percent of their district boundaries have been similarly designated.

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Conflict

Though the ability of COID and other central Oregon irrigation districts to pipe canals using their existing rightsof-way was ultimately upheld by the Ninth Circuit Court of Appeals in a 2009 case involving the nearby Swalley Irrigation District, public opinion does not necessarily follow the outcome of legal challenges. In an effort to help assuage neighboring homeowners, COID began a dialogue to determine their concerns.

Primary among the issues raised by homeowners was the remaining open canal after piping was complete, as well as the possibility of some tree loss in the right-of-way due to project construction. COID agreed to not only fill the empty canal ditch, but also landscape on the area for two to three years to include planting grass and removing weeds.

Additionally, the district is currently working with homeowners toward the potential development of an aesthetic water feature. While homeowners groups would be expected to bear the cost of development, COID has offered to work with them to provide access to water and relevant know-how in construction.

Irrigation Leader

However, COID has been unable to accommodate complaints from owners of wells in the area that have seen a decline in well water availability since piping projects began.

Effectively, these wells were charged with leakage from the nearby open canals, which can lose up to 50 percent of water during transmission. Curbing these transmission losses was one of the primary goals of the piping project.

Johnson offered advice to districts considering similar piping projects, primarily ensuring the district knows its legal rights prior to taking any other actions. While several irrigation districts in central Oregon relied upon the federal appeals court decision in the Swalley case, its merits do not necessarily apply outside of the region given the unique history of easements associated with each district. As with most large undertakings, the ability to articulate a solid legal backing is essential to moving forward with the project.

Aside from these important legal issues, Johnson believes community education is key to maintaining “good neighbor” relations with homeowners in increasingly urban areas. For example, open canals in these more populated regions can represent a serious public safety concern given the potential of the canal overtopping and flooding the surrounding area, as well as creating a potential danger for unsupervised children near the canal. Educating homeowners about this danger may overtake concerns about losing their aesthetic water feature.

Additionally, canal pipe drops can be used for small hydroelectric power projects, a potential source of clean energy that could benefit the community at-large. Certain small hydropower projects in water conduits are eligible for an exemption from the arduous Federal Energy Regulatory Commission approval process and can receive necessary approval relatively quickly.

Finally, COID has also undertaken an outreach effort toward local real estate agents to ensure they are aware of irrigation district rightof-way issues when showing property to potential buyers. Johnson believes this and other efforts to generate awareness in the local community will help to mitigate public reaction from future projects. “Don’t be shy about it,” he said. “You want to deal with these issues before you start.”

Steve Johnson is the general manager of Central Oregon Irrigation District in Redmond, Oregon.

He can be reached by e-mail at stevej@coid.org.

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The Upper Colorado River Endangered Fish Recovery Program:

“

A Success Story �

For its history of successful stakeholder collaboration resolving seemingly intractable water use conflicts, the Upper Colorado River Endangered Fish Recovery Program is granted the Cooperative Conservation Award of the Department of the Interior.

-Dirk Kempthorne, Secretary of the Interior, April 21, 2008

By Tom Pitts

B

orn of controversy, the Upper Colorado River Endangered Fish Recovery Program (Recovery Program) has become a model of collaboration and cooperation in attaining the goals of the Endangered Species Act (ESA) while remaining fully consistent with state water law and interstate water compacts. The Recovery Program, unprecedented in scope, scale, and diversity, includes the Colorado, Wyoming, and Utah drainages of the Colorado River, encompassing more than 800 river miles of federally designated critical habitat for four endangered fish species. The success of the multifaceted Recovery Program over two decades is the result of long-term commitments and efforts by the states of Colorado, Utah, and Wyoming; water users; environmentalists; power customers; and federal agencies.

Origins Four warm-water endangered fish species (Colorado pikeminnow, razorback sucker, humpback chub, and bonytail) inhabit the Colorado River and Green River subbasins of the Upper Colorado River basin. In mid1983, the U.S. Fish and Wildlife Service (FWS) proposed that any depletion of water in the Upper Colorado River Basin would have to be matched by release of water in the same amount to avoid further jeopardy to the species.

If implemented, this proposal would have curtailed the development of water under interstate compacts governing water allocation in the seven Colorado River Basin states.

In response to this proposal, the Colorado Water Congress (CWC) organized a special project on endangered species on December 1, 1983, and hired a project coordinator. The objective was to develop an administrative solution that would satisfy the ESA, yet still meet the needs of the states and private parties to manage 24

Colorado pikeminnow, one of four federally listed endangered fish species in the Upper Colorado River Basin.

and develop water resources. A federal/state coordinating committee on the matter was established in March 1984.

In 1985, the CWC proposed that the four fish species be recovered and delisted under a programmatic approach.

CWC recognized that the fundamental problem was that the fish are endangered, and the fundamental solution was to make them not endangered. Recovery of the species achieves the goal of the ESA and provides the greatest regulatory certainty for federal and nonfederal water development and management activities. Following a period of intense negotiation to develop the details of the Recovery Program, the Secretary of the Interior; the governors of Colorado, Wyoming, and Utah; and the Administrator of the Western Area Power administration signed a memorandum of agreement to implement the Recovery Program on January 21, 1988.

Irrigation Leader

Recovery Program Participants States of Colorado, Utah, and Wyoming Colorado River Energy Distributors Association Colorado Water Congress Utah Water Users Association Wyoming Water Association The Nature Conservancy Western Resource Advocates U.S. Bureau of Reclamation U.S. Fish and Wildlife Service National Park Service Western Area Power Administration Water for Endangered Fish

the means of ESA compliance for other Upper Colorado River Basin Reclamation and nonfederal projects that had supplies fully allocated to existing uses, thus precluding the need for reducing deliveries for human uses from those projects. Flaming Gorge Dam on the Green River is being reoperated pursuant to a Reclamation administrative decision issued in 2006. Reclamation is engaged in an environmental impact statement (EIS) process on modified operation of the Aspinall Unit to benefit the species while meeting other authorized purposes. The final EIS and administrative decision regarding Aspinall reoperation are anticipated in 2011.

Grand Valley Irrigation Project Water Control/Conservation Structures

A fundamental problem is how to provide water for The Grand Valley Project is a Reclamation irrigation endangered fish within state water law and interstate water project constructed in 1908 with accompanying senior compacts. Water from existing projects was fully allocated water rights. The facility can divert up to 1,640 cubic to human uses. Construction of new, stand-alone projects feet per second from the 15-Mile Reach of the Colorado to provide water for endangered fish was considered cost River near Grand Junction. This reach of designated prohibitive. Despite the obvious obstacles, the states, water critical habitat historically experienced dry or near dry users, and Reclamation agreed to cooperate in providing conditions during the irrigation season. The Project water for endangered fish consistent with state law, federal includes a 30-mile-long canal that had to be kept full to project purposes, and interstate compacts. Under the deliver water to numerous laterals. The Recovery Program Recovery Program, water for endangered fish is provided invested $7 million to construct control structures in the from the following primary sources: (1) modified operation canal, with the saved water stored in Reclamation’s Green of Reclamation projects to benefit endangered species, (2) Mountain Reservoir and released in late summer for the construction of water conservation projects on existing benefit of endangered fish. It appears that average annual irrigation projects and enlargement of an existing reservoir, yields will be approximately 30,000 to 40,000 acre feet and (3) voluntary cooperation by federal and nonfederal per year. During the 2002 drought, the check structures reservoir operators to enhance flows without impacting substantially benefited water deliveries to Project irrigators. reservoir yield.

From the onset of the Recovery Program, it was anticipated that operations of Flaming Gorge Dam on the Green River and the Aspinall Unit on the Gunnison River, two large federal reservoirs, would be modified to benefit endangered fish.

Operational modifications include more stable base flow release patterns, changes in timing of releases, and releases to increase peak flows. It was anticipated that (1) reoperation of these federal projects would result in substantial benefits to endangered species; (2) the projects had sufficient capacity to be reoperated while maintaining authorized purposes; and (3) the benefits of reoperation, Check structures installed in the Grand Valley Irrigation Project by the Recovery Program improve efficiency and save water that to provide flows along with the implementation of for endangered fish. (Photo courtesy of Upper Colorado River Recovery Program) other program actions, would provide Irrigation Leader

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Elkhead Reservoir The Recovery Program partnered with the Colorado River Water Conservation District and other reservoir owners to enlarge Elkhead Reservoir on Elkhead Creek, a tributary to the lower Yampa River. The lower Yampa includes spawning habitat for the three of the four endangered fish species and has a significant need for augmentation of critical late summer low flows. The Recovery Program invested $13 million in the $31 million expansion project for ownership of 5,000 acre feet of storage in the reconstructed reservoir. The Program also leased an additional 2,000 acre feet of water per year under favorable terms from the Colorado River Water Conservation District for 20 years to augment low flows.

Spring Flow Enhancements Coordinated reservoir operations enhance spring peak flows in the critical 15-Mile Reach of the Colorado River, upstream of the Gunnison River confluence. This is accomplished by coordinating bypasses of reservoir inflows during spring runoff in a manner that does not impair yields of participating reservoirs. Extensive and complex coordination occurs among Reclamation, Denver Water, the Colorado River Water Conservation District, Northern Colorado Water Conservancy District, and the Colorado Water Conservation Board. From 1997 to 2008, approximately 106,500 acre feet of water was released to enhance spring peak flows.

Base Flow Enhancements From 2000 through 2008, 500,000 acre feet of water was delivered to the critical 15-Mile Reach of the Colorado River to enhance late summer low flows.

These deliveries result from the cooperative efforts of Reclamation, the Colorado River Water Conservation District, and Denver Water and include water saved by the Grand Valley Project water control/conservation structures and stored in Green Mountain Reservoir. Via contracts and other delivery mechanisms, state water law protects water that is released for endangered fish species.

ESA Compliance for Water Projects One of the goals of the Recovery Program is to provide ESA compliance for water development and management activities in the Upper Colorado River Basin. In conducting consultations required by the ESA on water development and management activities, the FWS has agreed to first consider actions taken by the Recovery Program as the means of providing ESA compliance for those activities. In reviewing water project 26

The Recovery Program helped fund the expansion of Elkhead Reservoir on the lower Yampa River to provide late summer flows for endangered fish. (Photo courtesy

Colorado River Water Conservation District)

impacts, whether existing or new, the FWS reviews Recovery Program actions and determines whether those actions sufficiently benefit the species so as to provide the “mitigation� (reasonable prudent alternatives and reasonable prudent measures) to offset impacts of the project. Since the inception of the Recovery Program, the FWS has found that ESA compliance is provided for approximately 1,800 large and small water projects in the Upper Colorado River Basin, depleting 2.8 million acre feet per year, including both existing and new depletions.

ESA compliance procedures have been streamlined, a benefit to water users and federal agencies. No changes in the ESA or its regulations were needed to implement the Recovery Program. No lawsuits have been filed regarding ESA compliance by water projects under the Recovery Program.

Working with Congress In the mid-1990s, it became apparent to all participants in the Recovery Program that (1) Program participants had underestimated the level of funding needed to achieve Program objectives, (2) cost sharing by Program participants with the federal government would be needed, and (3) a dependable source of annual operations funds would be needed to operate and maintain Program facilities. As a result, federal authorizing legislation was developed to address these needs. The authorizing legislation recognized cost sharing agreed to by the states, water users, and power customers. The legislation (P.L. 106-392) was passed and signed into law in 2000 and has been subsequently amended to meet current needs.

Each year Congress has appropriated funds to the Program. Strong bipartisan support exists in Congress and Irrigation Leader

The fish passage at the Roller Dam constructed by the Recovery Program helps provide endangered fish access to 340 miles of critical habitat on the Gunnison and Colorado Rivers.

(Photo courtesy Upper Colorado River Endangered Fish Recovery Program)

the numeric population recovery goals. The Colorado pikeminnow in the Green River Basin suffered during the 2002 drought. Razorback sucker, with a declining population of a few hundred adults when the Recovery Program was initiated, have been stocked extensively due to their low numbers. The stocked fish are reproducing, and the next generation is recruiting into the population.

Humpback chub populations have fluctuated with the drought and are currently under assessment with respect to the need for additional recovery actions. Bonytail, considered extinct in the Upper Colorado River Basin, are being stocked and monitored to determine habitat and other critical needs.

Future of the Program among congressional committees for the Program. This bipartisan support is based on the Program’s track record of accomplishments, resolution of conflicts, and strong grass roots support among states, water users, power customers, and environmentalists.

Recovery of the Species The originators of the Program recognized that factors other than water affected both the endangerment and the recovery of the endangered fish species. The multifaceted Recovery Program includes the following elements: • provision of water for fish habitat • habitat development (fish screens, fish passages, flooded bottomlands) • research and monitoring • stocking of endangered fish • controlling interactions among native and nonnative fish species

The Program also includes information/education and program management components.

Some 340 miles of critical habitat in the Colorado River and Gunnison River are now accessible to the endangered fish and other native species due to fish passages. Hatcheries are producing genetically diverse razorback suckers and bonytail to restore these species.

Nonnative fish control, while controversial, is reducing populations of competing introduced species. Research and monitoring continue to evaluate the populations and impacts of recovery actions on those populations, and to identify the need for adaptive management.

The status of the four endangered fish has improved substantially since initiation of the Recovery Program. The population of Colorado pikeminnow in the Colorado River has doubled since 1991 and is approaching or exceeding Irrigation Leader

The capital construction program is largely complete.

The Recovery Program will be adding water efficiency structures to the Orchard Mesa Irrigation District to reduce diversions while fully providing water to irrigators, similar to the Grand Valley Project improvements.

Saved water will flow downstream to endangered fish habitat, protected under state law. Additional stocking of razorback sucker and bonytail will likely be needed to achieve population goals. Stocking of other endangered species is also an option, if needed. Water augmentation via reoperation of the federal projects and through cooperation by water users will continue. All four species are projected to be recovered and delisted by 2023. Until that time, it is likely that the Recovery Program, as an institution, will continue. As a condition of recovery and delisting, agreements will have to be implemented to maintain those conditions (flows, passages, screens, habitats, etc.) that led to recovery and delisting of the species.

A Success Story The Recovery Program is moving toward recovery of endangered species—the ultimate, and rarely achieved, goal of the ESA. One of the Recovery Program’s greatest accomplishments has been to bring people together in a collaborative effort that serves many diverse interests.

Enormous conflicts with uncertain outcomes have been avoided. Potential adversaries have become allies and partners.

Since December 1, 1983, Tom Pitts has represented Upper Colorado River Basin water users in the negotiation and implementation of the Upper Colorado River Endangered Fish Recovery Program. He is principal, Water Consult, Engineering and Planning Consultants, Loveland, Colorado.

Tom may be contacted by phone at (970) 667-8690, or by e-mail at tpitts@waterconsult.com.

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Water Law 28

The Clean Water Act:

Should the States Still Have a Role In It?

By Robert S. Lynch

O

ne of the things about having been a member of the bar for 46 years is that you accumulate an awful lot of stuff no matter how hard you try not to.

Then you find that you can’t always remember where you put it. That is my current problem as I address this subject. I was a young attorney in the Appellate Section of what was then called the Land and Natural Resources Division of the Justice Department from fall 1967 until spring 1972. During that time, I used the GI Bill to go to night school at George Washington University Law School and get a Master of Laws degree. Along the way, I wrote a paper on a bill in Congress that was about to emerge, about six months after I left, as the Clean Water Act. Can I find it? No. Why would I care? I would care because the central debate today over proposed amendments to the Clean Water Act focuses on disagreement over what Congress intended in 1972. What was the role of the federal government or, more to the point, the role of the states in establishing an enforceable program for surface waters of the United States? Did, as the SWANCC decision indicated, Congress stop short of testing the limits of its constitutional authority and leave a part of the program to the states? Or did Congress intend to occupy the field, leaving the states, even though eligible to get program delegation, mere instruments of the federal agency exercising federal authority?

The focus of attention on this issue was heightened by the Supreme Court’s later decision in the Rapanos

and Carabell cases. Because that decision did not draw bright lines separating bodies of water as to types of jurisdiction, there has been an effort to legislatively throw up their hands and use the arguments and confusion that often follow a less-than-precise Supreme Court decision to just say “forget it” and give the federal government jurisdiction over everything.

Everything includes, at least in the arid part of the United States, dry arroyos and other watercourses of various names that only see water for a short time on the rare occasion when it rains, plus watercourses that actually have water in them whether they connect to another water body or not.

I had rather hoped that I would discover this paper from my academic past and find that, in a moment of unusual perception, I had actually addressed this subject as the bill was being legislated. No such luck.

So let me tell you what I do remember and can document. I left the Justice Department in 1972. In 1975, Arizona decided it needed a state clean water act. I was fortunate to be able to participate in that effort. One of the things that came out of that effort was a set of definitions that I believe tells the same story as the SWANCC decision: Congress did leave a role to the states in dealing with this program.

In Arizona law, we have two important definitions that highlight this distinction. The first is a definition of “navigable waters” which “means the waters of the United States as defined by § 502(7) of the Clean Water Act (33 United States Code § 1362(7).” The second definition is of “waters of the state,” which

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“means all waters within the jurisdiction of the state including all perennial or intermittent streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, aquifers, springs, irrigation systems, drainage systems and other bodies or accumulations of surface, underground, natural, artificial, public or private water situated wholly or partly in or bordering on the state.” I think it is very easy to see that our legislature looked at the federal program as having a certain finite reach and decided, quite logically, that it might need to be able to put its arms around everything to make a water quality program work in Arizona. I can’t imagine that the waters of the state definition left anything out. I don’t think the legislature of Arizona ever thought it did because this definition has survived for 35 years. However, the more limited navigable waters definition was used to define the scope of the Section 402 NPDES program Arizona would want delegated to the state.

Time passed, various amendments to the Arizona law were passed by the Arizona legislature and, finally, in 2002, Arizona asked for delegation of the NPDES program under its statutory program already in place.

EPA approved that transfer about a year later. As you might imagine, litigation followed. It ended up in the United States Supreme Cour which, on June 25, 2007, upheld EPA’s delegation of the program to Arizona.

The remarkable thing about this now 35-year old saga is that the two definitions I mentioned above have survived and clearly show that Arizona read in 1975 what the U.S. Supreme Court said in January 2001: there is a role for the states in this program. Arizona has declared its authority over everything that is wet or could be wet.

However, it has adopted the federal permit program only over those waters covered by the federal program, not all Arizona waters and watercourses. That is the distinction in SWANCC. It is the distinction that legislation currently pending in Congress has sought to overturn.

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Whether investing more authority in EPA is a good idea or not, it is clear, at least to me, that the Clean Water Act does have a separate role for the states with separate jurisdiction over waters that are not “navigable waters.”

Every such definition that attempts to define separate roles for the federal government and the states automatically brings with it tension and very often litigation. That is not a bad thing. Testing and retesting the appropriate roles of the federal government and the states in any problemsolving program forces people to reexamine the goals of the program and how they can best be met.

To me, then, the debate over pending legislation should not be whether Congress should overturn these Supreme Court decisions because they didn’t correctly articulate the original intent of the Clean Water Act. The evidence says otherwise. The debate should be over whether the program is working as currently structured and whether the states are best positioned to deal with intrastate water quality matters, because they are where the federal government is not, on the ground.

The debate continues.

Robert S. Lynch is an attorney in private practice in Phoenix, Arizona. His firm’s website is: www.rslynch-az.com.

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The Innovators 30

Managing Fertilizer Rate Flow in Center Pivot Irrigation Systems S

wing spans intended to increase the productive areas in the corners of fields maintained by center pivot irrigation systems have long plagued farmers.

Although these system attachments can increase the irrigable area of a field, they pose serious problems to farmers seeking to manage the flow of fertilizers being distributed by the pivots. As the pivot moves toward the corners of the field, more water flows through the system to reach the swing spans. However, standard fertilizer pumps do not regulate their flow rates based on the amount of water in the system, resulting in an uneven application of fertilizer.

“When dealing with a swing span, one-third more water goes through the system, effectively robbing the circle of fertilizer,” said Maury Balcom, who recently co-founded a company, Pivotal Advantage, with partners Snap Keene and Chuck Graaff, to market a product aimed at alleviating this problem.

Designed by Keene and hand-built by the three partners in George, Washington, Pivotal Advantage’s product is best defined as a variablespeed fertilizer control and attaches to a pivot in the location where the fertilizer pump would have gone. The product then separately connects to the fertilizer pump itself and regulates the flow from the fertilizer pump based on the flow of water through the pivot.

“Now you can fumigate or chemigate a swing span system with close accuracy,” Balcom said.

“The prime value of it is you are applying the proper amount of chemical where it needs to go . . . providing both environmental and economic benefits.”

Balcom estimates the young company has sold a few hundred units, most to repeat buyers in the Columbia Basin. Although the units are portable, Balcom noted many farmers are installing them on multiple pivots due to their ease of use and relative cost compared with other solutions.

While large farm equipment suppliers also offer devices designed to regulate fertilizer flow in swing span systems, Balcom believes the Pivotal Advantage product is about 60 percent of their cost, selling for $3,999. The reason for the cost differential is that others generally sell their solution as a component of a

pivot accessory package, which often inflates the price.

Balcom and his partners hope to grow their company outside of Washington and have already sold units through a dealer in Nebraska, though most sales are still made directly to customers.

Maury Balcom is the president of South Columbia Basin Irrigation District in Pasco, Washington. He can be reached by phone at (509) 948-9753, or e-mail at admin@maurybalcom.com.

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District Applies Innovative Solution to Surface Weed Problems Q

uincy-Columbia Basin Irrigation District (QCBID) in central Washington faced a dilemma as it sought to avoid weeds floating on the surface of a section of its system from clogging three nearby turnout gates. It could spend around $250,000 to construct a weed rake, or attempt to develop a more cost-effective solution to its problem.

QCBID chose the latter. “[We wanted] a lower-cost alternative to achieving the goal that we needed,” said District Secretary-Manager Darvin Fales.

Born from a concept developed by former Assistant Watermaster Matt Larson, who died tragically in a motorcycle accident, “Matt’s Pump” achieved the goal. The system shoots water across the surface of the lateral to push weeds toward the current of a nearby wasteway. Effectively, the pump simply drives weeds on the surface of the water away from the gates into wasteway.

QCBID Operation and Maintenance Assistant Manager Troy Freeman estimates the total cost of the pump project to be $35,000, far less than the costly weed rake. However, the system does have drawbacks. “It’s really only effective for floating weeds,” said Fales, noting that weeds under the surface still cause a problem once they reach the three gates.

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Fales and Freeman indicated that QCBID’s pump system is in a unique location. Composed mostly of return flows, the Crab Creek Lateral runs for 15 miles from west to east before turning back west where three constant head orifices are set side by side. The presence of a nearby wasteway feeding into Royal Lake provides the pump system an opportune outlet to push the weeds away from the Constant Head Orifices, the operation of which is threatened by the weeds’ presence.

However, QCBID has used temporary pumping mechanisms in other locations. Similar systems could also be used to drive surface weeds toward a downstream weed rake away from other components of an irrigation system that they could potentially endanger.

Darvin Fales is the secretary-manager of Quincy-Columbia Basin Irrigation District in Quincy, Washington.

He can be reached by phone at (509) 787-3591, or e-mail at dfales@qcbid.org.

Troy Freeman is the operation and maintenance assistant manager at Quincy-Columbia Basin Irrigation District in Quincy, Washington. He can be reached by phone at (509) 787-3591, or e-mail at tfreeman@qcbid.org.

31

Integrated Water Planning, Permitting, Design, Optimization & Construction Services

2010 CALENDAR

John Maxwell, P.E. 360.570.4400 www.hdrinc.com/water

Oct. 13-15

Texas Water Conservation Assn., Fall Meeting, San Antonio, TX

Oct. 21-22

Texas Irrigation Expo, Mercedes, TX

Nov. 3-4

Water Education Foundation, Water Quality Conference, Ontario, CA

Nov. 10-12

National Water Resources Assn., Annual Conference, San Diego, CA

Nov. 18-19

Idaho Water Users Assn., Annual Water Law Seminar, Boise, ID

Nov. 22-24

Nebraska Water Resources Assn., Annual Convention, Kearney, NE

Nov. 30-Dec. 3

Assn. of California Water Agencies, Fall Conference, Indian Wells, CA

Dec. 1-3

Oregon Water Resources Congress, Annual Conference, Hood River, OR

Dec. 9-10

Washington State Water Resources Assn., Annual Conference, Spokane, WA

Dec. 15-17

Colorado River Water Users Assn., Annual Conference, Las Vegas, NV

For more information, or if you would like a water event listed here, please phone (701) 223-8332, or e-mail Irrigation.Leader@waterstrategies.com. Submissions are due the first of each month preceding the next issue.