WATER IN THE PACIFIC NORTHWEST ISSUES AFFECTING IDAHO S WATER USERS

Transcription

1 WATER IN THE PACIFIC NORTHWEST ISSUES AFFECTING IDAHO S WATER USERS

2 Formed in 1937 as the Idaho State Reclamation Association IDAHO WATER USERS ASSOCIATION 300+ Members Canal Companies, Irrigation Districts, Water Districts, Ground Water Districts, Municipal and Public Water Suppliers, Hydroelectric Companies, Aquaculture Facilities, Agri-Businesses, Professional Firms and Individuals Formed to advocate and educate on issues affecting Idaho s agricultural water users

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7 IS THERE A CORRELATION BETWEEN WATER SUPPLY AND WATER DISPUTES? More disputes in low water years? Fewer disputes in high water years?

8 IS THERE A CORRELATION BETWEEN WATER SUPPLY AND WATER DISPUTES? Water Supply Water Disputes Note: The information presented in this graph is totally false. It is not scientifically derived. In fact, the numbers don t mean anything. I simply chose numbers at random and placed then in this graph to illustrate a point that, if true, would not only justify the information in this presentation, but would also justify my job. This graph simply illustrates that people will dispute water issues regardless of the water supply. Even though the data supporting this graphic is totally fabricated, the point is brilliantly illustrated by this graph even if I do say so myself!

9 State Issues Refill IPDES Permitting IWUA WORK IN 3 AREAS Federal Issues Infrastructure Title Transfer WOTUS Regional Issues Litigation Columbia River Treaty Columbia Basin Partnership

10 STATE ISSUES

11 REFILL THE PROBLEM WITH TOO MUCH WATER In high water years, water is released from / passed through reservoirs for flood control. That water is no long available for ultimate purpose under the water rights (i.e. irrigation). ISSUE: How to account for Refill of space? After 7 years of litigation, settlement has been reached!

12 IPDES: IDAHO IS NOW IN CONTROL! 2018: Idaho completed the 4-year process of acquiring oversight authority for the NPDES program. Now the IPDES program. Phased in approach.

13 FEDERAL ISSUES

14 INFRASTRUCTURE: PLANNING FOR THE FUTURE

15 SNAKE RIVER THE COLUMBIA RIVER S LARGEST TRIBUTARY 92,960 SQUARE MILES (36%) SIGNIFICANT DEVELOPMENT: IRRIGATION HYDROPOWER FLOOD RISK MANAGEMENT NAVIGATION RECREATION

16 SIGNIFICANT ANNUAL VALUE IN IDAHO Boise Project Minidoka Project Owyhee Project Palisades Project Crops $624,575,000 $704,104,000 $155,250,000 $650,900,000 Livestock $645,000,000 $387,144,000 $93,150,000 $355,448,000 Power Generation $13,975,000 $6,339,200 $0 $31,413,000 Flood Prevention $183,287,500 $9,961,600 $755,550 $20,942,000 Recreation $33,002,500 $28,300,000 $4,830,000 $16,640,400 TOTAL $1,499,840,000 $1,135,848,800 $253,985,550 $1,075,343,400 Bureau of Reclamation (2017)

17 INFRASTRUCTURE INITIATIVE Federal Focus on Infrastructure Roundtable on groundwater issues (October, 2017) Roger Chase (Idaho Water Resource Board) testified Challenges and opportunities to better utilize federal infrastructure to facilitate aquifer recharge Respecting the role of states in water management Need for improved regulatory processes that would make the development of water supply solutions easier and more cost effective President s Infrastructure Plan Legislation

18 INFRASTRUCTURE INITIATIVE (CONT.) HR 660 (Bureau of Reclamation Transparency Act): Secretary of the Interior must publish reports detailing rehabilitation needs at their facilities. HR 1654 (Water Supply Permitting Coordination Act): Creates a one-stop-shop permitting process through Reclamation for new or expanded non-federal surface storage facilitates. HR 875 (Bureau of Reclamation Project Streamlining Act): Streamlines water project development process for Bureau of Reclamation. HR 2939 (Water Rights Protection Act): Prohibits Departments of the Interior and Agriculture from conditioning or withholding the issuance of any permit, lease, or other land use arrangement on the requirement to transfer privately held water rights to the United States.

19 INFRASTRUCTURE INITIATIVE (CONT.) S612 (Water Infrastructure Improvements for our Nation Act, WIIN Act ): Identifies processes funding opportunities for infrastructure projects. S2560 Reclamation Title Transfer Act of 2018: Streamlines title transfer process for certain facilities. S563 Water Supply Infrastructure & Drought Resilience Act of 2018: Streamlines Reclamation permitting, provides for the review of flood control rule curves, allows aquifer recharge through Reclamation facilities, and codifies the water transfer rule. P3 (Public-Private Partnership): Use of alternative finance and delivery structures to advance Reclamation s mission.

20 TITLE TRANSFER OF WATER DELIVERY FACILITIES Pros Divests the government of the responsibility for the operation, maintenance, management, regulation of, and liability. Gives private entities greater autonomy and flexibility to manage the facilities to meet their current needs. Cons Time: requires lengthy NEPA analysis (taking as long as 10-years), and ultimately requires an act of Congress Expense: total cost regularly exceeds $200,000 and requires the agencies to expend significant time and resources

21 TITLE TRANSFER OF WATER DELIVERY FACILITIES Pros Cons Divests the government of responsibility for the operation, maintenance, management, regulation and liability for facilities Time: requires lengthy NEPA analysis (taking as long as 10-years), and ultimately requires an act of Congress Gives private entities greater autonomy and flexibility to manage the facilities to meet their current needs. Expense: cost regularly exceeds $200,000 and requires the agencies to expend significant time and resources

22 TITLE TRANSFER LEGISLATION S2560 Reclamation Title Transfer Act of Authorizes certain transfers without Congressional approval and without full NEPA analysis. Issue: Project Power.

23 WATERS OF THE UNITED STATES (WOTUS) Federal Water Pollution Control Act of 1948 (aka Clear Water Act, or CWA ): Regulates pollutant discharges into the waters of the United States WOTUS Definition source of constant dispute

24 RAPANOS V. UNITED STATES (2006) Decision (Plurality Opinion) Majority decision penned by Scalia and Kennedy. Scalia Opinion: CWA confers federal jurisdiction over non-navigable waters only if the waters exhibit a relatively permanent flow, such as a river, lake, or stream. Wetlands fall within jurisdiction only if there is a continuous surface water connection between it and a relatively permanent waterbody, and it is difficult to determine where the waterbody ends and the wetland begins. Kennedy Opinion: Wetland or non-navigable waterbody falls within the scope of the Clean Water Act s jurisdiction if it bears a "significant nexus" to a traditional navigable waterway.

25 THE OBAMA WOTUS RULE 80 Fed. Reg (June 29, 2015) Focused on Kennedy s Significant Nexus opinion Many believed provided expansive definition of WOTUS

26 PRESIDENTIAL EXECUTIVE ORDER ON WOTUS February 28, 2017: Executive Order directing review of Obama WOTUS Rule. Policy: It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.

27 PRESIDENTIAL EXECUTIVE ORDER ON WOTUS

28 2 STEP PROCESS STEP 1 Rescind the Obama WOTUS Rule Reinstate prior WOTUS Rules STEP 2 Develop new WOTUS Rule consistent with Scalia s relatively permanent opinion New Rule someday

29 ENDANGERED SPECIES ACT REFORM HR 717 (Listing Reform Act): Would allow agencies to prioritize consideration of Listing Petitions as opposed to review in order that petitions are received. HR 1274 (State, Tribal and Local Species Transparency & Recovery Act): Agencies must provide all data that is used in listing determination. HR 2603 (SAVES Act): Non-native species will not be considered for listing under ESA. HR 3131 (ESA Litigation Reasonableness Act): Amends standard for awarding court costs (including fees) in citizen suits. HR 3916 (FISH Act): Consolidate authority for anadromous fish in Department of Interior (currently at National Marine Fisheries Services Commerce Department).

30 REGIONAL ISSUES

31 TAKE A MOMENT TO FIND PEACE

32 COLUMBIA RIVER BASIN IT S LIKE 5TH GRADE PICTURE DAY.

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35 SOURCE OF DISPUTE Development along the river has: Provided water for irrigation Provided navigation Improved recreation Other benefits BUT: Changed fish habitat Competing demands for the water

36 BROAD-BASED EFFORTS TO ADDRESS ISSUES Northwest Power & Conservation Council Fish Program Guides project funding from the BPA throughout the Columbia River Basin. Columbia Basin Partnership Task force organized under NOAA Fisheries Marine Fisheries Advisory Committee ( MAFAC ). Broad-based group established to develop recommendations on common goals and define a shared path to long-term salmon recovery in the Columbia River Basin. Others: Regional Implementation Oversight Group (RIOG) Council of State Governments legislative Council of River Governance Pacific Fishery Management Council

37 LAWSUITS US v. Oregon Fishing rights of various Indian Tribes along the Columbia River. Began in the 1980 s still going NWF v. NMFS Challenges to the Biological Opinions regarding the operations of the Columbia River Hydroelectric Projects (FCRPS) Began in the 1990 s still going New Analysis Mandated: New BiOp Ordered NEPA Analysis Due: 2021

38 IWUA RESOLUTION : FEDERAL COLUMBIA RIVER POWER SYSTEM

39 THE CULVERT CASE (WASHINGTON V. U.S.) 2001: 21 Tribes sought a determination from Court regarding culverts. Claim: Culverts that are too small, or pitched too high above the stream bed, deplete fish runs that tribes rely on and are entitled to by treaties. Stevens Treaty Rights: the right of taking fish at all usual and accustomed grounds and stations in common with all citizens of the Territory. 2013: District Court enters injunction, obligating state to repair culverts. 2017: 9 th Circuit Affirms Treaty assured that the number of fish would always be sufficient to provide a moderate living to the Tribes. 2018: Supreme Court issues Divided Opinion (4-4)

40 THE CULVERT CASE: WHAT DOES IT MEAN? Order Denying Rehearing, Judge O Scannlain (dissent) (May 19, 2017) (9 th Cir.)

41 Removal of dams? Dept. of Justice: In response to questions of whether dams on the lower Snake River and the lower Columbia River violate the treaty: The answer is no. First of all, there are many federal dams that are built with what are known as fish ladders. These are structures that are built in to allow the fish to pass either around the dam or over the dam. There are some instances where fish ladders are just not feasible. And in many of those instances, the United States has compensated the tribe for their harm to the fisheries, either through the Indian Claims Commission or, in many cases, through federal legislation. (Transcript, pages 39-40) In many instances, the United States has repeatedly provided compensation. They have paid monetary compensation. They have put in fish ladders. They have put in hatcheries. And in some cases, the Army Corps of Engineers actually uses barges to transport young salmon down the river to go around the dams so they don't get hurt by it. We have taken extraordinary efforts to remediate some of the problems that have been caused by some of these federal dams. (Transcript, pages 40-41) THE CULVERT CASE: WHAT DOES IT MEAN? Water Quality standards? What Else?

42 COLUMBIA RIVER TREATY

43 1909 Boundary Water Treaty Provided mechanisms to prevent and resolve disputes over boundary waters High water years threatened significant damage EARLY COORDINATION 1943: International Joint Commission began studying the Columbia River Basin 1945: International Columbia River Engineering Board (ICREB) concludes that further development is feasible and in the interest of both nations additional technical studies needed Then 1948

44 1948 FLOOD VANPORT, OR (2ND LARGEST CITY IN OREGON AT THE TIME)

45 DEVASTATION

46 THE DAMAGE 2-Weeks of heavy rains in May Flood on the lower river, breaching an elevated railroad bed 30,000 residents displaced 50 dead

47 DEVELOPING A TREATY International Joint Commission begins Columbia River studies Treaty analyses conducted by International Joint Commission / Project Site Evaluations begin ICREB delivers technical reports focusing on hydropower development and flood control After further domestic negotiations, Canada signs and ratifies the Treaty Flood destroys Vanport, OR 1948 Flood Control Act authorizes the FCRPS with appropriate interfaces for those parts of the basin within Canada President Eisenhower signs and US Senate ratifies the Treaty 1961

48 GENERAL TREATY PROVISIONS Canada to construct and operate Mica, Arrow, and Duncan dams (15.5 million acre-feet) for power generation and flood control. U.S. would construct and operate Libby dam (5 million acre-feet) on the Kootenai River in Montana for flood control and other purposes. U.S. and Canada would share equally the downstream power benefits produced in the U.S from the operation of Canadian Treaty storage. Implementation / Governance: U.S Entity: The Administrator of the Bonneville Power Administration and Division Engineer of the Northwestern Division USACE Canadian Entity: B.C. Hydro and Power Authority.

49 2 PURPOSES OF THE TREATY FLOOD CONTROL Canada operates 8.95 million acre-feet for flood control to mitigate risk of flood in both Canada and the U.S. U.S. paid Canada $64.4 million for one-half the present worth of the expected future U.S. flood damages prevented from 1968 through Flood control provisions expire in HYDROPOWER Canada operates their Treaty storage for optimum power generation in Canada and the United States. Canadian Entitlement: U.S. delivers power to Canada equal to one-half the estimated U.S. power benefits from the operation of Treaty storage. BPA (on behalf of the U.S. Entity) delivers the Canadian Entitlement based on daily schedules set by B.C. Worth approx. $100-$250 million annually.

50 TERM & TERMINATION Treaty continues indefinitely but Original term was for 60-years (or until 2024) First time either Country may terminate Termination requires 10-year notice (i.e. notice in 2014 to terminate in 2024) Termination only affects Canadian Entitlement Flood Control continues for life of facilities However, after September, 2024, flood control changes to Called Upon

51 CALLED UPON FLOOD CONTROL Called Upon flood control is used to control potential floods in the United States of America that could not be adequately controlled by all the related storage facilities in the United States of America existing at the expiration of 60 years. U.S. would incur additional costs for called upon flood control operations. No longer any guaranteed space.

52 CALLED UPON SYSTEMWIDE V. LOCAL FLOOD CONTROL Canada: Called Upon requires the U.S. to use all buckets before calling upon Canada (regardless of authorized purpose) U.S.: Called Upon only speaks to systemwide, treaty dams

53 Money from U.S. provided funds to build Canadian facilities BENEFITS OF THE TREATY Pre-paid, guaranteed flood control (certainty) Opportunity for the U.S. to develop alternative flood control and energy sources Development of transmission lines

54 MISSED EXPECTATIONS? Expectation at Ratification (1964) The U.S. would develop more flood control within the Columbia River Basin before 2024 reducing reliance on Canada for flood control. What Really Happened Passage of laws such as Endangered Species Act, Clean Water Act and others made it much more difficult to develop additional storage. Conflicts throughout the Columbia River Basin. No additional storage was developed.

55 MISSED EXPECTATIONS? Expectation at Ratification (1964) Complicated formula in Treaty used to calculate the expected value of the Canadian Entitlement for the life of the Treaty. What Really happened Requirements under federal statutes for additional flows. Development that didn t match Treaty expectations. Alternative sources of energy (wind, solar, thermal, etc.). All have resulted in an unbalanced Canadian Entitlement.

56 CONCERNS TO IDAHO WATER USERS Called Upon Flood Control: Altered flood control could affect operation of system Impacts to water supply and timing of releases Uncertainty of water supplies Canadian Entitlement: Rates impacted by imbalanced Canadian Entitlement

57 REGIONAL RECOMMENDATION 2012: Treaty Review. December 13, 2013: Regional Recommendation Guiding Principles/Recommendations on the Treaty s future Flood Control & Hydropower recommendations NEW PURPOSE: Ecosystem Function

58 REGIONAL RECOMMENDATION: HYDROPOWER

59 REGIONAL RECOMMENDATION: FLOOD CONTROL

60 REGIONAL RECOMMENDATION: ECOSYSTEM FUNCTION New purpose proposed in Regional Recommendation Competing Views on Meaning (U.S. Entity, Canadian Entity, Tribal Interests)

61 NEED TO MODERNIZE THE TREATY

62 THE IDAHO POSITION Meeting with Stakeholders Working with representative from Governor s Office Discuss through out the State (Boise, Eastern Idaho, Lewiston, Coeur d Alene) Discussing Issues and Concerns Southern Idaho: Primarily flood control/storage and power issues Lewiston: Navigation North Idaho: Lake Pend Oreille management

63 THE POSITION: HYDROPOWER CANADIAN ENTITLEMENT IS UNBALANCED AND NEEDS TO BE CORRECTED

64 THE POSITION: FLOOD CONTROL Guaranteed flood control operations should continue No additional demand on Idaho facilities and projects for flood control Called Upon flood control should not place any additional flood control obligations on Idaho s storage projects or water facilities and should not alter or affect State-based water rights, State Laws or Congressional Authorizations, including the Snake River Water Rights Agreement

65 THE POSITION: ECOSYSTEM FUNCTION Does not belong in the Treaty CWA, ESA and other federal/state laws and regulations are sufficient Nez Perce Water Rights Agreement addresses these issues for Idaho If included in the Treaty, Ecosystem Function should not impose any additional burdens or obligations on Idaho Water Rights and storage authorizations must be protected

66 Coalition for Idaho Water Committee of Nine Federal Instream Flow Coalition Food Producers of Idaho BROAD SUPPORT Idaho Alfalfa & Clover Seed Growers Association Idaho Farm Bureau Federation Idaho Association of Soil Conservation Districts Idaho Grain Producers Association Idaho Consumer Owned Utilities Association Idaho Ground Water Appropriators, Inc. Idaho Cooperative Council, Inc. Idaho Hay and Forage Association Idaho Honey Industry Association Idaho Onion Growers Association Idaho Sugarbeet Growers Association Idaho Weed Control Association Lake Pend Oreille Alliance Nezperce Prairie Grass Growers Association Payette River Water Users Association Port of Lewiston Commission United Onion USA, Inc. Water District 65 Advisory Board

67 NEGOTIATIONS COMMENCE Jill Smail US Chief Negotiator Sylvain Fabi Canada Chief Negotiator May 29-30, 2018: First formal negotiation meeting (in D.C.) Aug , 2018: Next session in British Columbia

68 COLUMBIA BASIN PARTNERSHIP Broad-based approach to setting goals for salmon recovery Phase 1 nearing completion Discussion about the goals at this conference Phase 2 scenario discussions Not yet authorized

69 QUESTIONS? Paul L. Arrington Idaho Water Users Association 1010 W. Jefferson St., Ste. 101 Boise, ID (208)