Summary of Comments on 2015 CAGRD Plan of Operation

Transcription

1 Summary of Comments on 2015 CAGRD Plan of Operation CAGRD has received public comments on the draft 2015 CAGRD Plan of Operation through three different venues: 1) during the Workshop on Plan Elements held August 21, 2014, 2) during the CAGRD & Underground Storage Committee meeting held September 18, 2014, and 3) written comments received on the 2015 CAGRD Plan of Operation, Preliminary Draft dated September 8, Written comments have been received from the following twelve parties, in order of receipt: Ms. Maggie Gallogly, attorney representing a number of real estate companies with interests in CAGRD member lands and lands in member service areas; Mr. Ron Whitler, hydrologist for the City of Buckeye Water Resources Department; Ms. Maureen George, General Counsel for Mohave County Water Authority; Mr. Alan Forrest, Director of City of Tucson Water Department; Mr. David Godlewski, President of Southern Arizona Home Builders Association; Ms. Kathleen Ferris, Executive Director of Arizona Municipal Water Users Association; Mr. Patrick McMullen, Acting Executive Director of Inter Tribal Council of Arizona; Dr. Carole Klopatek, Government Relations Director for Fort McDowell Yavapai Nation; Mr. Jerry Witt of W Holdings, a land development company with land holdings in central Arizona; Mr. Cliff Neal, Water Resources Management Advisor for City of Phoenix Water Services Department; Mr. William Garfield, President and Chief Operating Officer of Arizona Water Company; and Mr. Dennis Patch, Chairman, Colorado River Indian Tribes. This Summary of Comments is divided into two sections: 1) a categorized summary of general comments received from multiple parties along with accompanying staff responses; and 2) a number of more specific comments received from individual parties, also with accompanying staff responses. GENERAL COMMENTS General Comment #1: Sufficiency of modeling and projection data The Plan needs to include more information regarding the data, assumptions and modeling used by the CAGRD in developing the Draft Plan's projections of enrollment and future replenishment obligation. Without this information, it will not be possible for ADWR to make its required statutory determination that the projections of enrollment and future replenishment obligation are reasonable. Staff Response to General Comment #1: Staff believes the draft Chapter 3 provided the necessary level of detail on the modeling methods and assumptions for ADWR to determine that the statutory requirement to develop reasonable projections has been satisfied. However, in response to specific comments, there are a number of places where the text has been expanded and edited to provide more clarity. Furthermore, concurrent with the Plan submission, staff intends to make technical materials 1

2 available to ADWR and the public that supplement the information in the Plan. These materials will include more detailed documentation of the CAP:SAM model and selected datasets. General Comment #2: Available water supplies The volumes of water supplies identified in the inventory of supplies available for acquisition by the CAGRD are inflated, overly optimistic and do not consider the impacts of climate change. Staff Response to General Comment #2: As noted in Chapter 4, CAGRD is required by statute to identify potentially available water supplies. The water supply volumes identified in the inventory of available supplies are based upon currently available data regarding unused supplies, supplies that are currently utilized pursuant to short-term lease arrangements and, therefore, may be available to CAGRD under similar terms in the future, and other legally available supplies. Chapter 4 has been reorganized to describe available water supplies for the next 100 years ( ) in Section 4.5 and then describe water supplies CAGRD plans to use to meet replenishment obligations for the next 20 years ( ) in Section 4.6. This change is intended to address confusion about the characterization of available supplies in the categories of "plans to use" and "potentially available" by clarifying that CAGRD plans to use the water in its existing portfolio and also acquire additional water supplies from the categories identified in table 4.2 as its demand increases over time. Table 4.2 identifies a large volume of potentially available water supplies to meet the relatively small volume of future replenishment obligation. More detailed comments and staff responses are offered below for each category of water supply identified in the Draft Plan. CAP WATER: Comment: CAWCD's own analysis in the context of Excess CAP water contradicts CAGRD's projections of available CAP water. Staff Response: CAGRD's projections for available CAP water are not limited to the availability of Excess CAP water. However, the Plan notes that CAGRD will utilize Excess CAP water when it is available and needed to meet replenishment obligation. CAGRD's estimate of available Excess CAP water is based upon current projections regarding the operating conditions on the Colorado River and the CAWCD Board policy regarding Excess water available to CAGRD. Comment: Stating that CAGRD's reliance on Excess CAP water may be eliminated due to the acquisition of other water supplies is premature. In the interest of preserving the CAWCD Board's flexibility regarding the future use of Excess CAP water, this statement should be eliminated. Staff Response: Staff agrees; this statement has been deleted in the Final Draft Plan. 2

3 Comment: CAGRD incorrectly assumed that CAP M&I water not ordered over the past four years would remain unused and thus available to CAGRD. CAGRD MSAs that are CAP subcontractors are working to use their subcontract water. By understating the use of CAP water by these subcontractors, the Plan overestimates the amount of CAGRD replenishment obligation. Staff Response: To arrive at the estimated volume of CAP water that may be available for acquisition over the next 20 years, CAGRD staff assumed that any CAP water not currently utilized as part of a long-term commitment, i.e., dedicated to an Assured Water Supply or otherwise committed to a long-term direct use by the entitlement holder, may be available. Specifically, staff added all subcontract water that CAP subcontractors have not ordered for the past four years ("unordered supply"), plus all short-term tribal lease water, plus all tribal water delivered to recharge facilities. The total was then adjusted downward based on CAGRD's knowledge of planned uses for individual supplies that are currently unused. The "unordered supply" was calculated consistent with the following example: one M&I Subcontractor has an entitlement of 2,919 AF. It took delivery of 808 AF, 1,237 AF, 1,149 AF and 1,236 AF respectively between 2010 and The unordered supply is 2,919 AF 1,237 AF (the highest annual order during ) = 1,682 AF. This type of calculation was made for each subcontractor. CAGRD recognizes that CAGRD MSAs may increase their use of CAP water and also may utilize other water supplies to meet demands rather than relying on replenishment by CAGRD to make groundwater use consistent with the AMA management goal. CAGRD supports these actions by its members and has incorporated specific assumptions regarding MSA CAP use in its projections. LONG-TERM STORAGE CREDITS: Comment: The Draft Plan includes up to 22,000 AF/yr of LTSCs that CAGRD plans to use to meet replenishment obligations over the first 20 years. Our review of September, 2014 storage credits summary by ADWR indicates the total amount of storage credits available is 1.62 million AF, which is approximately 16,200 AF/yr (after subtracting storage credits held by CAWCD, CAGRD, CAGRD Replenishment Reserve, CAGRD conservation district, AWBA, SRP, GRIC, BOR, and municipal water providers that are cities and towns). While some of the LTSCs held by these entities might be available for purchase, the Draft Plan does not include an analysis of who might be willing to sell and on what terms/conditions. Staff Response: The CAGRD estimate of available LTSCs is based on the total number of existing credits in the Phoenix, Pinal, Tucson AMAs and the Harquahala INA as reported by ADWR. These credits total 8.8 million AF, minus the credits owned by CAWCD, CAGRD, AWBA and any credits pledged to a provider's assured water supply. As clarified in the Final Draft Plan dated November 10, 2014, CAGRD does not "plan to use" all of these LTSCs over the next 20 years, but they are considered available to the CAGRD if willing seller/willing buyer agreements are negotiated. 3

4 OTHER COLORADO RIVER WATER: Comment: Any transfers of Colorado River water off the mainstem should only be done pursuant to a full and open public process on a statewide basis. Staff Response: The future acquisition of Colorado River water supplies will comply with all federal and state regulatory requirements, including public notice provisions and environmental compliance. Although Table 4.2 identifies a volume of up to 219,700 AF of available Colorado River water, the total projected CAGRD replenishment obligation in 2114 is only 113,000 AF, and only a portion of that total would potentially be Colorado River water. CAGRD is currently funding a pilot rotational fallowing program with Yuma Mesa Irrigation and Drainage District (YMIDD) to develop data and processes to inform decisions about the potential development of Colorado River water supplies. This program is currently generating a system conservation water supply to reduce the likelihood and/or mitigate the impacts of future shortages. Comment: Reference to 200,000 AF of MSCP coverage for transfers of water off the mainstem is incorrect since several transfers have already been made or are pending. Staff Response: The total volume of Colorado River water that has been recommended for transfer since implementation of the MSCP in 2005 is approximately 60,000 AF, so the remaining volume for which there is programmatic Endangered Species Coverage is approximately 140,000 AF. This number has been changed in the Final Draft Plan. EFFLUENT: Comment: A 2013 study prepared for CAWCD by HDR found that "95% of the wastewater generated within the CAP service area serves beneficial uses"; therefore, the quantities of available effluent included in the Plan seem unrealistic. Staff Response: The HDR study assumed that effluent discharged to the river channel without accrual of storage credits constitutes "beneficial use". CAGRD does not make this assumption; therefore, CAGRD's evaluation of available effluent includes these quantities of unused effluent as available. CAGRD commissioned a comprehensive effluent study that was completed in 2013 and which identified all currently discharged/unused effluent. Using the Arizona Department of Environmental Quality's list of all existing Wastewater Treatment Plants (WWTPs) the owner/operators were identified and interviewed to obtain information on the quality, quantity and volume of effluent that is reused, recharged and discharged. When possible, this information was verified by reviewing annual reports filed with ADWR. 4

5 General Comment #3: Colorado River shortages and Lower Basin structural deficit CAWCD is presently pursuing actions to reduce Colorado River demand in Arizona and leave that water in Lake Mead to support reservoir levels in Lake Mead; CAWCD is also considering options to address the structural deficit in the Lower Basin. Yet the Draft Plan indicates that this same water, in whole or in part, may be available for transfer for CAGRD purposes. CAWCD's efforts should be aimed at ensuring resiliency on the Colorado River in the face of shortages to protect all CAP users, rather than to acquire additional supplies off of the mainstem that benefit only one user, CAWCD itself, to the disadvantage of the contractors and subcontractors. Staff Response to General Comment #3: Including Colorado River supplies in the list of available supplies for CAGRD acquisition is not inconsistent with, nor does it undermine, CAWCD s full commitment to both protect reservoir levels in Lake Mead and address the structural deficit in the Lower Basin. Any use of mainstem Colorado River supplies by the CAGRD, whether through a lease, transfer or fallowing agreement, would not increase diversions from the mainstem. Under state law, only consumptive use volumes are available for transfer, meaning that an existing consumptive use would be replaced by a new consumptive use. There would be no increase in consumptive use of Colorado River water resulting from a lease, transfer or fallowing program by CAGRD. Further, state and federal regulatory processes are designed to ensure transfers of Colorado River water do not cause harm to the Colorado River system or create other negative third party impacts. Most importantly, including other Colorado River supplies in the CAGRD water supply portfolio would benefit all CAGRD members, not a single user and not CAWCD itself. The CAGRD supports a total of more than 80 separate municipal water providers in the threecounty service area, all of whom rely in one manner or another on CAP water and many of whom are also CAP subcontractors. As noted below, some of these providers will turn to increased reliance on the CAGRD when their CAP NIA entitlements are reduced because of Colorado River shortages. Adding other Colorado River supplies to the CAGRD water supply portfolio would increase resiliency for these CAP subcontractors, help ensure CAGRD's ability to meet its statutory obligation to make their groundwater use consistent with the AMA management goals, protect the Assured Water Supply designations of all 24 CAGRD Member Service Areas and help protect and advance the economy of all of central Arizona. As noted above, CAGRD is currently funding a pilot rotational fallowing program with YMIDD. The pilot program provides a stable revenue stream for YMIDD farmers with limited impact on current farming operations and ultimately is intended to benefit the 1,094 Member Land subdivisions and 24 Member Service Areas of CAGRD, collectively serving approximately 1.5 million Arizona residents. Water transfers are specifically identified as a strategy to meet emerging water demands in the December 2012, Colorado River Basin Water Supply and Demand Study ("Study"). The Study 5

6 identifies water transfers as an important tool for resolving imbalances in the near- and longterm and notes that voluntary water transfers can have many potential benefits and, in particular, promote flexibility in adapting to uncertain future conditions. The Study also notes that many of the Basin States have been utilizing voluntary water transfers to meet emerging water management challenges and will continue to look to transfers as an important solution. General Comment #4: Impacts of Colorado River shortages on obligations and available supplies The Draft Plan fails to include an analysis of the impacts of Colorado River shortages on both CAGRD's projected replenishment obligations and CAGRD's current water supply portfolio. CAGRD members who also have CAP Non-Indian Agricultural ("NIA") priority water entitlements could see a reduction in those supplies during shortage, which could, in turn, result in more excess groundwater pumping by CAGRD members to replace those reduced supplies. The potential impact on CAGRD's replenishment obligation under this scenario needs to be analyzed. Further, the bulk of CAGRD's current water supply portfolio is comprised of NIA priority water; the Draft Plan needs to analyze the impacts of shortage on CAGRD water supplies. Staff Response to General Comment #4: The Plan of Operation statutes require the development of a single obligation forecast and, for that forecast, staff has assumed a normal Colorado River supply. Speculations about the impact of shortage necessarily presuppose a great many things about the depth, timing and impact of a shortage deep enough to eliminate NIA-priority CAP supplies, the vast majority of which are held by those other than CAGRD or its members. Nevertheless, staff has evaluated a "no NIA" scenario and has concluded that it would result in a very modest increase in obligation. Loss of the NIA supply to CAGRD itself can be addressed with existing tools, such as the Replenishment Reserve, other long-term storage credits and additional supply development if the loss of the NIA supply were to persist for an extended period. Furthermore, shortage on the Colorado River is only one of a number of factors that could affect the CAGRD's future obligation. In recognition of the actual range of uncertainty facing the CAGRD, staff is committed to ongoing planning and analysis that considers a range of scenarios to support CAGRD's operations. General Comment #5: As a result of the CAGRD Stakeholder Process on the 2015 Plan of Operation, CAWCD staff developed an enhanced reporting proposal. The enhanced reporting proposal calls for an annual review by the CAGRD of the progress being made in acquiring sufficient water supplies and the rate of CAGRD enrollment, among other things. The Draft Plan does not include any mention of this enhanced reporting proposal and needs to be amended to include it. 6

7 Staff Response to General Comment #5: CAGRD has committed to prepare an enhanced annual report that will present clear information on new enrollment, the amount of obligation and replenishment that has occurred during the preceding year, acquisition of new supplies, and the location of pumping and replenishment. In addition, CAGRD will conduct a mid-plan review that will summarize the past five years of operation as described in the preceding annual reports, as well as a review with ADWR of water level trends beneath both member lands and member service areas. Enhanced annual reporting and a mid-plan review are not statutory requirements and thus are not included in the Plan itself. However, the CAWCD Board of Directors has clearly expressed its intent to memorialize the enhanced annual review and mid-plan review process in its formal transmittal of the Plan to ADWR. SPECIFIC COMMENTS Specific Comment #1: Reasonableness of estimates CAGRD is required to submit "reasonable estimates" of projected enrollment and obligation. CAGRD should not provide detailed data on the level of specific providers' service areas, timing of development or residential water use levels. The relevant issue is whether the projections, taken as a whole, are reasonable for the entire Active Management Area. In addition, the CAWCD Board has announced that it intends to implement the enhanced annual reporting and mid-plan review procedures to allow for corrections if circumstances change. Staff Response to Specific Comment #1: Staff agrees with this comment but has included additional text in Chapter 3 to provide more clarity regarding the projections. Staff also will submit supplemental information concurrent with the Plan submittal that will contain additional information on the modeling and datasets utilized for the projections. Specific Comment #2: Availability of tribal water supplies No tribal water should be identified in the Plan as available to the CAGRD over the next 20 years, or potentially available during the subsequent 80 years, unless the tribe holding such water rights has executed a lease agreement with CAGRD for such water or the tribe has given its written consent to the inclusion of its water rights in the Plan. The Draft Plan does not specifically identify tribal water as the source for CAGRD supplies, however, tribal water rights and entitlements are included in the calculation. ITCA requests that the Plan be revised to respect the position of Tribal leaders that no tribal water be shown in the Plan as available to the CAGRD without tribal consent. 7

8 Staff Response to Specific Comment #2: CAGRD acknowledges the unique nature of tribal water rights, both decreed rights and rights pursuant to congressionally-approved settlements. CAGRD also recognizes the sovereignty of Arizona tribes and the fact that tribal water supplies are not legally "available" to CAGRD or any other water user absent the express consent of the tribe. Statutes governing the preparation of the CAGRD Plan of Operation require the development of an inventory of all supplies that are potentially available to meet CAGRD replenishment obligation. In direct response to this legal requirement, CAGRD has included in the Plan an inventory of all water supplies that fall within this definition. However, listing any supplies in this inventory does not mean that the supply is legally available to CAGRD without an agreement with the underlying water right holder. Staff understands that there is a level of concern among tribes over the sanctity and security of their tribal water supplies, particularly in the face of a possible declaration of shortage on the Colorado River. The CAWCD Board of Directors and CAGRD staff have adopted an approach to developing CAGRD water supplies that clearly excludes ANY hostile acquisition by CAGRD. CAWCD has specifically declined in the past to seek authority to condemn real property, including water supplies, from any party. In addition, the CAWCD Board has adopted a set of Water Supply Program Principles that state "CAGRD does not have condemnation authority and will not partner with other entities to use their condemnation authority to acquire water supplies " CAGRD staff also has adopted a set of operating principles for the Program that includes a commitment that "(t)he Program will seek to complete transactions within the context of agreements that can provide multiple, mutual benefits to our partners." These principles are articulated on pages 4-7 and 4-8 of the Final Draft Plan. To the extent that tribal CAP water supplies are imbedded in the inventory of supplies potentially available to the CAGRD, these supplies are limited to CAP entitlements that are currently being used to earn LTSCs, are currently being leased under short-term agreements or are being actively marketed by tribes for use by non-tribal water interests in the state. CAGRD's estimate of potentially available Colorado River water supplies is based on a broad planning assumption to identify the MAXIMUM quantity of potentially available supplies consistent with CAGRD's goal of minimizing and/or mitigating third party impacts in areas of origin. These planning-level numbers do not presume that water supplies associated with decreed tribal rights will be available to CAGRD absent the consent of tribal governments. It is important to note that the inventory of available water supplies included in the Draft Plan is approximately 10 times the amount of water CAGRD will need to develop to meet its projected replenishment obligation. The draft Plan does not rely on any tribal water supplies to meet CAGRD replenishment obligation. Instead, it reflects CAGRD's intent to approach tribal entities in an effort to reach mutually acceptable agreements regarding the use of tribal water supplies, with the acknowledgement that tribal consent is a necessary precedent to any agreement. 8

9 Specific Comment #3: Restriction of "potentially available" water supplies Beware of any attempt to restrict "potentially available" supplies from use by CAGRD. Staff Response to Specific Comment #3: CAGRD recognizes that it has a statutory obligation to accurately describe water supplies that are potentially available to meet replenishment obligation. CAGRD plans to pursue development of water supplies within all categories of available water supplies, pursuant to the Water Supply Program Principles adopted by the CAWCD Board of Directors. At the same time and as noted above, CAGRD specifically acknowledges that its future acquisition of water supplies (beyond Excess CAP water) can only occur as the result of "willing-seller/willing-buyer" agreements. Specific Comment #4: Satisfaction of replenishment obligation CAGRD did not meet its replenishment obligation and has failed to obtain long-term water supply contracts to meet assured water supply requirements of its current and future members. Staff response to Specific Comment #4: Pursuant to A.R.S , CAGRD has three years in which to replenish its members' groundwater pumping. CAGRD has met that requirement in all three AMAs, as detailed in Tables 2.3, 2.4, 2.5 and 2.6 in the draft Plan. CAGRD is not required to meet the requirements of the state's Assured Water Supply program; its members are required to meet these requirements. CAGRD is required to replenish its members' excess groundwater pumping, thereby making their groundwater use consistent with the AMA management goal, one of the requirements for demonstrating an assured water supply. As required by statute, CAGRD has prepared a 10-year Plan of Operation that demonstrates its capability to fulfill its replenishment obligation over the next 20 years. Specific Comment #5: Enrollment The Plan should place restrictions on future enrollment of CAGRD members. Staff response to Specific Comment #5: CAGRD does not have the authority to restrict enrollment. The Arizona Department of Water Resources is the entity that ultimately decides whether new Member Lands or Member Service Areas qualify to enroll in CAGRD. Specific Comment #6: Relationship between location of pumping and replenishment There is no requirement that replenishment occur in the same hydrologic impact area from which CAGRD members pump. The Plan should be more specific about how CAGRD will meet 9

10 its replenishment obligations without impacting regional aquifers and reducing groundwater supplies available to non-members. Staff response to Specific Comment #6: CAGRD statutes require that CAGRD replenish within the same AMA where member pumping occurs, with additional requirements that CAGRD attempt to balance pumping and replenishment in both the East and West sub-areas of the Phoenix AMA. CAGRD has fully met these statutory requirements and will continue to do so. It should be noted that CAGRD is the only entity in any of the AMAs that is legally mandated to replenish the aquifer. Specific Comment #7: Scottsdale Water Availability Status Membership There is no clear description of the long-term obligations projected for Scottsdale s Water Availability Status ( WAS ) membership, nor a description of how those specific obligations will be met. The table note on Table 5.1 indicates that there is no assumed obligation for Scottsdale beyond 2016, but there is no discussion or data supporting this assumption. Staff response to Specific Comment #7: By contract and statute (A.R.S ), the long-term obligation for Scottsdale s WAS membership is limited to 2,910 AF/yr. Scottsdale has acquired land, with associated groundwater rights, in the Harquahala Valley as a long-term water supply to satisfy its WAS membership obligation. Pursuant to Scottsdale s WAS membership agreement with CAGRD, this water supply must be made available for use by the CAGRD, to satisfy any obligation arising under Scottsdale s WAS membership. Both CAGRD and Scottsdale anticipate that when a wheeling program is implemented, Scottsdale will enter into a wheeling agreement to have its Harquahala Valley groundwater transported through the CAP system and will de-enroll from the CAGRD. Specific Comment #8: Storage Facilities in the Tucson AMA The facilities currently used in Pima County do not allow much room for expansion and the CAGRD should, at some point, consider new facilities in Pima County. Staff response to Specific Comment #8: As detailed in Table 6.1, the projected CAGRD replenishment obligation for the Tucson AMA in 2034 is 12,700 AF and available capacity is 50,000 AF; therefore, available capacity exceeds need by nearly 4 to 1. However, as noted in the draft Plan, CAGRD will continue to evaluate additional facilities that may be required for specific sources of supply, that may reduce costs or that may replenish closer to the vicinity of where member pumping occurs. Regardless, CAGRD will take any necessary actions to ensure that sufficient replenishment capacity exists in all AMAs to meet its obligation. 10