1.   Resolution of Resource Conflicts


A conflict has developed in the use of lands which form a part of an area which is the site of a proposed water supply project.  The US Fish and Wildlife Service (FWS) has accepted a donation of interests in 3,802 acres in Wood County, Texas from the Little Sandy Hunting and Fishing Club. This same land forms a part of the Waters Bluff Reservoir Project proposed for development by the Sabine River Authority of Texas in cooperation with the U.S. Bureau of Reclamation.  The actions are mutually exclusive.  FWS proceeded with hearings and invited public comment regarding the proposed donation and related environmental assessment as a part of its “Bottomlands Hardwood Preservation Program.”  The FWS summary downplayed the adverse impact of acceptance of the donation of land on projected water development though such acceptance would legally preclude the development of the reservoir on donated lands.  It is noted that after the donation, the general public does not have access to the donated lands which remain a private hunting and fishing club.  Little if any coordination occurred between FWS and the Bureau of Reclamation in pursuing their divergent objectives even though both operate under the Secretary of Interior.  This is not an isolated conflict but rather a direct result of divergent objectives of the FWS and agencies seeking water
resource development throughout the nation.


At the direction of the Texas Legislature, the Texas Water Development Board (TWDB) is responsible for the development of the State Water Plan.  Pursuant to Senate Bill 1 of the 75th Texas Legislature, the State Water Plan is developed through the deliberations and actions of 16 regional water planning groups, each of which is comprised of representatives of 11 stakeholder groups including municipalities, environmental interests, and the public.  Once adopted at the regional level, each of the 16 regional water plans is approved as to compliance with TWDB rules and state law and becomes a part of the State Water Plan for meeting projected water needs for the next half century.  


The Fastrill Reservoir project on the Neches River is a planned water supply source for the City of Dallas and the Upper Neches River Municipal Water Authority (UNRMWA).  The state planning region in which Dallas is located made Fastrill Reservoir the only new reservoir recommended to meet projected water needs for Dallas within the planning horizon.  The state planning region in which the Fastrill Reservoir site is located identified Fastrill Reservoir as an alternative water supply for UNRMWA.  Both of these regional water plans were deemed consistent with one another, approved by the TWDB in early 2006, and are included in the 2007 State Water Plan.


Unfortunately, an action of the FWS  unilaterally set aside decisions made through a public and legislatively-mandated process in Texas.  On June 11, 2006, the Director of FWS approved a Finding of No Significant Impact (FONSI) establishing the Neches River National Wildlife Refuge on one of 14 Priority 1 sites identified in the Texas Bottomland Hardwood Preservation Program.  The majority of this refuge lies within the proposed conservation storage pool of Fastrill Reservoir and, once lands are accepted or acquired by the United States, development of this reservoir will be effectively precluded.


If donated lands are accepted or real property is acquired by FWS within proposed reservoir projects, such projects must realistically be abandoned.  Significant is the fact that numerous other proposed reservoir sites have been targeted by FWS as "Bottomland Hardwood Preservation Sites."


Determination as to what is in the best interest of the general public requires that a balance be determined and observed between competing constituencies.  The preferable course is for proponents of water development and environment preservationists to reach accommodation.  There must surely be coexistence between man and nature, and this can be achieved by rational people representing both concerns.  There is no reason why water supply reservoirs and waterfowl cannot coexist and that room cannot be found around reservoir sites or at alternative locations for preservation of some bottomland hardwoods.


For the foregoing reasons, it is suggested that the Secretary of Interior establish a policy for timely resolution of conflicts in proposed uses of natural resources that will assure full prior consideration of the views of all affected federal, state and local agencies and full prior evaluation of economics, engineering and environmental factors.  An example of such a procedure is found in the 1994 Framework Agreement involving the Secretary of the Interior and various federal and state agencies which establishes a process intended to lead a long-term solution to water supply reliability and environmental problems in California's Bay-Delta estuary.  The policy should prevent federal agencies from accepting contributions of interests in real property, acquiring real property, or taking positions in litigation or any other actions that would be inconsistent with state law and state water policy.

2.   Integrated Resource Planning for Energy Consumption


Section 114 of the Energy Policy Act of 1992 is an amendment of Title II of the Hoover Powerplant Act of 1984.  The purpose of the amendment is "to require the Western Area Power Administration to issue rules requiring all but the smallest customers to engage in integrated resource planning (IRP)."


In passing this Act, Congress took special note of the problems of small customers and the potential for duplicative, wasted efforts if other IRP requirements are not fully recognized.  The language of the Act, Congressional Record and legislative history are explicit on these matters.  Long-term power contracts are essential to any long-range planning effort.  Before an adequate IRP that includes Federal power as part of the resource can be accomplished and implemented, there must be a clear and binding understanding as to the amount and period of availability of that resource.  NWRA urges the Western Area Power Administration to use its existing authorities to enter into longer-term contracts and make those contracts a part of the IRP process.


3.   Groundwater Protection and Management


A national strategy for groundwater management should be developed based on implementation at the most local level of government capable of that management.  Groundwater management and protection is and must remain a decentralized activity directed and implemented at the state and local level.


NWRA believes that the federal role in groundwater protection should be one of adoption of source control programs based on prevention rather than clean up.  Such a strategy should not be excessively prescriptive and detailed, rather, designed to allow the state and locals the flexibility to implement the most practical and effective solutions that fit local situations and still meet federal goals.  Federal funding and technical assistance should facilitate efforts for proper protection of the nation's groundwater. 


No federal program should be developed without complete coordination of federal, state and local agency programs.


Federal farm programs provide many economic incentive opportunities for improved management of the water resources of the nation.  Additional, targeted placement of lands (with poor water use efficiencies) in the Conservation Reserve Program would eliminate that associated use of groundwater.  This will provide significant savings in groundwater across the country.  The Environmental Quality Incentive Program (EQIP) can provide assistance to improve the efficiency of the use of groundwater.  Our understanding of the best ways to implement water conservation programs is always improving through research and experience.  Implementation of EQIP, as currently planned, would allow a single contract on a parcel of land for the life of the EQIP program.  We do not currently understand all the best ways to implement water conservation practices and a single contract would eliminate the possibility of future cost-sharing on newly refined practices.  EQIP and similar programs should be flexible enough to meet future needs and make use of improved technologies.


4.   Settlement of Indian Reserved Water Rights Disputes


Indian water rights claims litigations have been and are expensive and time consuming.  Therefore, negotiation of such claims for quantification and other aspects of Indian water rights is highly desirable and in the interest of all parties.


The negotiated settlement of such claims should not, however, adversely impair the water or power rights or interests of nonparticipants to the settlement process. For example, a settlement dependent on the use of non-local water or power sources may well interfere with the use of those resources in the basins of origin or adversely affect the local or regional economies of those basins.  Settlements having such adverse effects should be discouraged.


For the past hundred years, Congress has encouraged development of the arid West by providing mechanisms by which a public interest in water could be converted to a private property right.  Congress has also authorized and funded many water projects which have been or will be harmed by assertion of reserved rights.


As a matter of policy, Congress has generally provided in the Reclamation Act of 1902 and the Federal Power Act of 1920 that compensation be provided to holders of water rights vested under state law when they are interfered with by projects authorized or licensed under those two acts.  There should be no difference in that policy and the potential harm that can come from the assertion of reserved water rights.  In any event, the social costs of displacing existing uses for the benefit of national programs should be borne by the federal taxpayers and not by the affected users.


The United States Government has increasingly looked at off-reservation sales or leasing of Indian reserved rights as a funding method to fulfill the national trust responsibility of the United States with regard to economic development on Indian reservations.  Since this trust responsibility is a national obligation, Congress should appropriate funds from the national treasury for this purpose.


Moreover, off-reservation use of Indian water has the potential of disrupting the water management system in the West and adversely affecting existing water rights.  There are existing local and regional economies that are dependent upon the use of unused Indian water, as well as the return flow from water used on the reservation.  They will be detrimentally impacted if such water may be transferred off the reservation.  In addition, such areas may also be forced to engage in bidding wars which may have long-term detrimental impacts, both economic and political.  By allowing off reservation transfers, the potential exists to allow a party with no water rights in a particular stream or basin to obtain priorities to and take water away from entities and states with long-standing rights.  Additionally, some Indians are also opposed to severing the land and water rights, as they would like to see development on the reservation itself and preservation of their cultural values on the reservation.


In addition, a serious uncertainty exists regarding the ability of a state to withdraw a river from the federal system if it has been
included in that system by administrative rather than congressional action.  In the absence of a specific congressional designation, those rivers should be subject to withdrawal by appropriate action of the respective state legislatures.


It is also recognized that water planning and policy should not be determined in a vacuum and any implied federal reservation of water for any purpose creates confusion and chaos in implementing state water policy and planning.  For this reason, should Congress perceive a need for water rights to accompany wild and scenic designations, it should direct the appropriate federal agency to file for such a right under the substantive and procedural provisions of state law.


5.   Federal Nonreserved Water Rights


The Association concurs with the Department of Interior in reaffirming the historic primacy of state water management by announcing the Department's repudiation of a controversial 1979 legal opinion that sought to establish a so-called “federal non-reserved water right.”


An opinion released by William Coldiron, former Interior Solicitor, canceled out a June 25, 1979, opinion by one of Coldiron's predecessors, Leo Krulitz.  State officials throughout the West had expressed long-standing dissatisfaction with Krulitz's opinion, contending that it illegally interfered with their control of state water resources.  Coldiron's opinion said Congress had power to control the use of water for the benefit of federal lands, but that Congress has demonstrated its intent for the states to
control the allocation of waters within boundaries, in all but the most limited circumstances.  The so-called doctrine of federal non-reserved water rights has been the subject of four legal opinions by the United States government within the past several years (Solicitors Krulitz, Martz, Coldiron, and the Office of Legal Counsel - Department of Justice).  This doctrine is antithetical to orderly water supply and management because it purports to create a whole new class of water rights in the United States government.  The alleged non-reserved water rights, if recognized, can seriously disrupt rights created under state law systems, rights which are vital to the economic and physical well-being of countless water users.  The federal reserved rights doctrine itself was a substantial incursion into state water law systems.  The assertion of federal non-reserved rights, in addition to reserved rights, is intolerable.  The President should specifically direct federal agencies to appropriate or purchase water needed for uses of the United States in the same way that any water user in the state jurisdiction must proceed.


6.   Drought Mitigation and Assistance


The West and much of the nation is experiencing major extended drought conditions.  Lack of adequate water supply and storage in some regions of the country has resulted in a collapse of the regions' economic base and the social well-being of their residents.


Federal water development programs of the Corps of Engineers, Bureau of Reclamation, Department of Agriculture, and various other federal agencies have provided water supply storage and drought management programs which have mitigated the effects of periods of drought for many regions and communities.


During this century, the federal government has invested approximately $15 billion in the nation's domestic, industrial and agricultural water supply infrastructure.  Virtually all water users served by federal projects have been spared the devastating effects of the current drought.  Conversely, regions without adequate surface storage have suffered the full effect.  Drought relief legislation enacted over the past forty years has cost several times the federal investment in water supply and has resulted in only minimal short-term assistance.  It is, therefore, clearly in the interest and welfare of the nation that Congress and the President pursue a program of water supply infrastructure development and that this program be comprehensive, addressing the unique climatic and hydrological features of various regions.


The ability of state and local governments to cope with and react to severe drought conditions varies greatly across the nation.  There is an overwhelming need for federal technical and financial assistance in drought response planning and regional coordination.  This assistance must be centralized in one agency of government and not fragmented among several departments and agencies.


7.   Rural Domestic Water Systems


Congress and the Administration should recognize that the passage of the Safe Drinking Water Act (SDWA), as amended in 1996, has established a quality of life to which its citizens are entitled.  However, many small communities and rural areas, especially in the sparsely populated states and regions, will be hard-pressed to meet the criteria and standards of the Act without upgrading systems, securing new water sources and hiring personnel with needed expertise.


EPA, in implementing the SDWA, continues to identify new health hazards which small systems must test for, monitor and correct if necessary.  Many systems do not have current staff, nor can afford to hire staff, with the expertise or education to meet management capabilities to ensure compliance with EPA requirements.


Regionalization of systems which are already in planning stages, can be a feasible solution in many areas.  Advantages include an economy of scale, an increase in the feasible area to secure a water source, a reduction in specialized manpower and an increase in the revenue base.  In some areas of NWRA membership, regionalization also offers an opportunity to include Indian and non-Indian users to the benefit of all citizens.  Economy of scale allows for more economically feasible costs per individual in providing central administration, common delivery systems, new water supply sources, central treatment facilities and reduction in specialized individuals having the skills needed, as federal and state governments add to the monitoring requirements for a public water supply.  Regionalization also allows an increased revenue base for project sponsors.  Regionalization allows for sponsors to utilize a different water source previously not available because of costs.


A prime example of the benefits of regionalization occurs in South Dakota where four separate projects (West River/Lyman-Jones, Oglala Sioux, Rosebud Sioux and Lower Brule Sioux) were economically unfeasible.  Merging the four projects in the Mni Winconi Rural Water System has brought the economic feasibility into reality.  By utilizing Missouri River water, suitable water is provided to three Indian reservations, small communities and rural households who could neither meet the federal requirement for cost share dollars for individual projects nor the costs of the SDWA requirements.

8.   Wilderness and Roadless Areas


Federal reservations, including wilderness designations, are subject to valid existing rights.  The statutes creating these designations routinely acknowledge this fundamental legal principle.  Rights of access to water supply facilities fall within the scope of valid existing rights.  


In addition, the proponents of wilderness designation often acknowledge other vested interests and long-standing historical uses, such as livestock grazing, when seeking support for legislation during the hearing and review process prior to enactment.


The status of these historical interests and rights loses support after the wilderness bills become law, but these interests and rights have no less value to the American public or to those who have developed these rights by use and perfection over many decades.


The Wilderness Act established criteria for areas to qualify as wilderness.  The designated area should be “untrammeled by man,… retaining its primeval character…, without permanent improvements or human habitation, … with the imprint of man's work substantially unnoticeable, [and with] outstanding opportunities for solitude or a primitive and unconfined type of recreation” and should have “at least five thousand acres of land or [be] of sufficient size as to make practicable its preservation and use in an unimpaired condition.”   These standards have eroded over time under pressure from special interest groups who have a narrow focus on recreation or on preventing productive human use of publicly owned lands.   As a result, Congressional designations have enlarged the areas considered for wilderness protection far beyond those that truly met these standards.  Consequently, many areas contain permanent improvements expressly developed to support water rights, grazing rights and other historical uses of the federal lands.


Because most wilderness has been inventoried in the western United States, actions that interfere with or prevent the exercise of historic interests and rights on these lands affects the vested interests of westerners, principally in the states that are members of the National Water Resources Association.  These designations, as carried out, restrict the use of these lands for water and other resource development.


Federal administrative agencies should not abandon the fundamental principles of law necessary to ensure the proper management of the public domain, whether under the purview of the United States Forest Service, the Bureau of Land Management, the National Park Service or other federal agencies managing lands that may be subject to these designations and
uses.  The proper and fair applications of the rule of law, as set forth in wilderness designations, should respect valid existing rights and historic uses and should not prevent the appropriate use of federal lands for water and energy development to meet the needs of the people.


9.   Competing Uses at Federal Water Projects and Surcharges


For decades, federal water policy has been designed to harness the nation's rivers to promote specific purposes and uses. The federal multipurpose water projects are authorized to meet specific purposes with specific benefits and repayment responsibilities.


Project beneficiaries recognize the value and finite nature of water resources and consequently support their efficient use, including conservation, load management and system efficiency programs. The development of the nation's rivers has created environmental costs, benefits and opportunities that have led to additional, unanticipated uses of these projects.  In most instances, environmental benefits have been provided without cost to the general public.  Great injustices will occur by the adoption of any policy which attempts to reallocate storage water or allows changes in project operations without regard to vested rights or beneficiaries of that project and the laws of the state in which the project is located.  Such proposals cannot and should not be proposed or implemented under the Endangered Species Act to mitigate harm to critical habitat or the taking of an endangered or threatened species by federal or private activities unrelated to the project in question.


Water stored at federal facilities is allocated among existing authorized purposes and the water is released in a manner consistent with those authorized purposes and established water rights. The advocates of new and unanticipated project uses are seeking changes in the operation, use and management of federal water projects and the use of federal power revenues in order to secure or enhance their interests.


The additional demands placed on the resource by advocates of such new or expanded project purposes will reduce the benefits of the project to existing project users as originally authorized, and will increase their costs.


In the construction of many federal reclamation projects, environmental impacts have been fully mitigated and the responsibilities for this mitigation appropriately allocated.  It is totally inappropriate to arbitrarily assess a surcharge upon project water, ostensibly to meet environmental mitigation objectives, as was the case with the 1993 administration proposal for the creation of a natural resources restoration fund.  Justifiable remediation efforts should be undertaken on a case by case basis, taking into account all appropriate factors, including the benefits associated with the project and the project beneficiaries' ability to pay. 


10.   Federal Policy on Non-Agricultural Transfers of Water in Reclamation Projects


The Department of the Interior (“DOI”) adopted principles governing voluntary transactions that involved or affected facilities owned or operated by the DOI dated December 16, 1988.  As a part of those December 16, 1988 principles, voluntary water transaction criteria and guidance was set forth.  Some of the principles adopted were:


      1.         The role of the Federal Government arises from its being an owner of water storage and conveyance facilities by which it can assist state, tribal and local authorities by improving or facilitating the improvement of management practices with respect to existing water supplies.


      2.         Exchanges in type, location or priority of use accomplished according to state law can allow water to be used more efficiently to meet changing water demands.


      3.         The DOI will be asked to approve, facilitate or otherwise accommodate voluntary water transactions that involve or affect facilities owned or operated by its agencies.


The principles were intended to afford maximum flexibility to state, tribal and local entities to arrive at mutually agreeable solutions to their water resource problems and demands, to clarify legal, contractual and regulatory concerns of the DOI, and that all proposed transactions be between willing parties and in accordance with applicable state law.  Some of the principles recognized were:


                a.         Voluntary water transactions must be in accordance with applicable state and federal laws.

             b.       Voluntary water transactions can be accomplished without diminution of service to the water users of the project.

               c.        Voluntary water transactions can be accomplished where there are no adverse third-party consequences and are in accordance with applicable state law.


On March 13, 2000, the U.S. Bureau of Reclamation (BOR) published a draft of a paper entitled “Objectives, Principles, and Policies Governing the Voluntary Transfer of Water at Bureau of Reclamation Projects.”  The principles and policies set forth therein were purportedly to supplement and expand upon the 1988 principles of the DOI.  There is a substantial change in the position of BOR in these draft Objectives, Principles and Policies.  In the Introduction, the BOR asserts that it has developed substantial water supplies in the 17 western states, rather than stating that it has constructed irrigation works for the storage, diversion and development of water upon assurances that the costs will be repaid by the water users.  The BOR states that entities have contracted with the Reclamation to receive the water supplies developed and delivered by Federal Reclamation projects, and fails to note that most entities have contracted with the Reclamation to pay for the costs of constructing its delivery system and its allocated share of storage facilities for the right to receive the water stored in the space allocated to it.  The Reclamation sets out that it is a wholesale water supplier, when in fact, Reclamation is merely the legal owner of facilities it constructed for the storage and distribution of water and in return has received or is receiving the construction and operation and maintenance costs of the project from the beneficial users of the water.  The BOR then states in the Introduction that there is a dominance of agricultural uses of water in Reclamation projects because the BOR’s program was designed to provide economic development and stability when the West was still being settled and its arid lands reclaimed; when in fact, the primary and, in many instances, the sole purpose of the Reclamation program was to provide the financing necessary to construct large reclamation projects that were beyond the financial capability of individuals.  Finally, the Bureau in the Introduction states that the Reclamation is experiencing an increased number of proposals from water users “to sell the Reclamation project water” to which they are contractually entitled to other users and/or to convert their existing irrigation uses to new users, when in fact the proposals are by the users to sell their own water which is stored and/or distributed in a Reclamation facility for the water user. 


These attempts to redefine the role of the Bureau of Reclamation and the relationship between the Bureau and water users in a
Reclamation project constitute a blatant misstatement of facts and are clearly misleading to all but the well informed.  This posturing by the proposal of these policies can only be explained by the desire to imply that water supplies in the West are owned by the Bureau of Reclamation and the use of such water will be controlled by the Bureau of Reclamation at its discretion.  Such overreaching invites requests for the use of water stored or diverted by Reclamation facilities for uses not originally authorized by the project and inconsistent with the state law upon which the water rights for such projects were acquired.  Examples of such overreaching are as follows:


            a.         In part A, the Bureau recognizes that voluntary transfers of project water must be in accordance with applicable state laws, and then provides that transfers will not be compelled unless so required by legislative directive or judicial decision.  It would appear that these principles are inconsistent.

            b.         Under part B, principle B.3 provides that transfers will involve both administrative costs and Federal charges associated with the project water itself.  This is clearly a contravention of its previous policies and would indicate a position of the Bureau that it owns the water.  This policy proceeds to identify Federal charges as the recovery of subsidies associated with the project for irrigation purposes, which is not consistent with Federal Reclamation law.  This principal then provides that revenues received by Reclamation from the transfer of project water shall be credited in accordance with applicable law and policy, which is to credit the money to the Federal treasury.

             c.         Principles set forth in part C establish a policy that all third parties, whether or not a water user, shall be entitled to have any effect upon them to be considered, together with any adverse environmental effects, and that mitigation to these parties and needs must be provided.  This is an expansion of state law which protects other water rights and the local public interest, not everybody’s interest.

            d.         Under policies governing transfers of project water, the Bureau seems to be adopting a policy that it may approve a change in the nature of use of the water under Federal law, without regard to the laws of the state involved.  The Bureau has eliminated the requirement that such transfers must be approved by other project beneficiaries, but provides that Reclamation shall review and decide whether or not a voluntary transfer should be made, whether proposed by the Bureau or any other Federal agency, and no approval by the owner of the project water, the ultimate user, is required.  The new policies do not even require that the BOR obtain approval from the entity which has assumed responsibility for the operation and maintenance of the project involved.

            e.         Reclassification of land does not alter the nature and use of water.

            f.         The Bureau definition of  “transfer” characterizing small tracts being an M&I use directly impacts the M&I exemption for irrigation districts under the Fair Labor Standards Act.


11.   Adjudication of Federal Claims


Federal reserved rights are the greatest impediment to water planning and development in the West.  Those rights, once properly quantified, will provide a means for states to determine the remaining waters to be allocated, and can then, pursuant to state law, have those water rights determined, quantified and adjudicated.  It is about time some actions were taken to limit the overreaching that some federal bureaucrats continue to involve themselves with, to require compliance with the goals of this Administration and the United States Supreme Court decisions that have limited the far overreaching conclusions that many bureaucrats have had, as it relates to reserved rights, and to provide a means for allowing the waters of the western
United States to be put to their best and highest use pursuant to state law.


Each state has established procedures and if it has not done so, should enact procedures to adjudicate federal claims to take full advantage of the McCarran Amendment.  Once the United States is joined as a party in a state general adjudication, it must
file its reserved water right claims on behalf of Indians and the United States or such claims will be barred.  Reluctance by the Justice Department to accept state court jurisdiction through attempts to dismiss or remove actions from state stream adjudications has proved fruitless over the years.  These actions have done nothing but postpone the important work of quantifying all United States claims to water or water rights.  Most recently, the United States has attempted to get around the McCarren Amendment and state stream adjudications by filing “Quiet Title” lawsuits for water rights in federal court.  The Justice Department should cease these frivolous actions and take all appropriate steps, consistent with long-standing federal policy of deference to pending state stream adjudications, by allowing federal claims to be adjudicated in state stream adjudications.


To establish the rights to use waters of a state, western states must conduct lengthy, complicated, and expensive proceedings in water rights adjudications.  In 1995, Congress recognized the necessity and benefit of requiring the United States claims to be adjudicated in these state proceedings by adopting the McCarran Amendment.  Although the McCarran Amendment waived the sovereign immunity of the United States and requires the federal government to submit to state court jurisdiction in the adjudication of its claims to water rights in that state, Congress failed to address the payment of fees by the United States to which all other water right claimants are obligated.  In 1992, the United States Supreme Court held that under existing law, the United States need not pay fees for processing federal claims.  This decision has resulted in numerous, and often baseless, water right claims being filed by federal agencies and a tremendous burden of costs upon western states.  Such an unbalanced and unfair arrangement delays water adjudication systems by diminishing the resources of the state necessary to complete them.  Such delays add to the difficulties now facing states which are challenged to meet water user and environmental needs within the state.  H.R. 4196 entitled “Water Adjudication Fee Fairness Act of 2000” remedies this inequitable position, and places the United States on the same level playing field as other claimants in an adjudication.


12.   Instream Flow - Federal Agencies


The United States Forest Service, Bureau of Land Management, Environmental Protection Agency, Army Corps of Engineers, Fish and Wildlife Service, National Marine Fisheries Service,  Bureau of Reclamation and the Federal Energy Regulatory Commission have each acted under the assumption that environmental legislation such as the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, and the River and Harbors Act of 1899, can be used by federal agencies to require minimum streamflows for water quality and fish and wildlife purposes.


These assumptions have resulted in attempts to alter the operation of the federal Columbia River power system, in biological opinions issued by NOAA that identify flow augmentation with water from reclamation facilities that are not within the critical habitat area of listed species, as a reasonable and prudent measure, by EPA’s finding that minimum streamflows can be required for water quality purposes in a draft study under the 1977 Clean Water Act despite clear language that prohibits impairment of the state water allocation system.  Also, Region VIII of the EPA announced in a draft “Region VIII Water Resources Development Issues and Options Paper”  that it would use its EIS and 404 permit review authority to establish minimum streamflows for environmental purposes.  Further, the U.S. Forest Service has attempted to establish reserved water rights for channel maintenance and sediment transport.


These examples demonstrate that the federal government has used federal law to affect water allocation and management by regulatory means that in many cases is inconsistent with state water laws.  Any attempt to condition, restrict, or prohibit the appropriation, storage, carriage and consumptive use of water through regulation under federal environmental laws must be consistent with and take into account state water law.  It is urged that the present Administration continue to support a strong system of water allocation and management by the respective states.  


13.   Essential Fish Habitat


On October 11, 1996, Congress enacted amendments to the Magnuson Fishery Conservation and Management Act (now known as the Magnuson-Stevens Fishery Conservation and Management Act),  directing the Secretary of Commerce, through his designee, the National Oceanic & Atmospheric Agency (NOAA), to establish guidelines to assist Regional Fishery Management Councils in the description and identification of essential fish habitat in fish management plans (including adverse impacts on such habitat) and in the consideration or factions to ensure the conservation and enhancement of such habitat.  16 U.S.C. §1855(b).  The amendments also provide that fishery management plans that include the identification of essential fish habitat must be reviewed and the identifications updated based on new scientific evidence and other relevant information.  The amendments require the Secretary, in consultation with participants in the fishery, to provide each Council with recommendations and information regarding the identification of the essential habitat, the adverse impacts on the habitat, and the action that should be considered to ensure the conservation and enhancement of that habitat.  There is no provision in the agreements which require the Secretary (NOAA) to consult with persons who are not participants in the fishery, such as the appropriators of water in the respective states under state law, sources of which are located in the designated essential fish habitat or flows tributary thereto.  It does not address consultation that occurs under the Endangered Species Act, and the duplication that may arise.  The amendments further provide that each Regional Fishery Management Council may comment on and make recommendations to the Secretary and any federal or state agency concerning any activity authorized, funded, or undertaken, or proposed that, in the view of the Council, may affect the habitat, including essential fish habitat, of a fishery resource under its authority, and shall comment on and make recommendations to the Secretary and any federal or state agency concerning any such activity that, in the view of the Council, is likely to substantially affect the habitat, including essential fish habitat, of any anadromous fishery resource under its authority.  The Act does not require any federal or state agency to follow the recommendations.


Under the above authority, NOAA adopted rules and regulations (not guidelines) that provide that essential fish habitat may be identified within both federal and state waters and requires that the essential fish habitat described will always be greater than or equal to the “critical habitat” for any managed species listed as threatened or endangered under the Endangered Species Act.  The rules encourage efforts to minimize depletion/diversion of freshwater flows into rivers and where degraded conditions in a habitat can be reversed through improvement in water quality or quantity measures, including increasing flows, the essential fish habitat should include those habitats that may be improved and would be essential to the species to obtain increased yields.


This represents an unauthorized intrusion on state allocation and management of water resources. Congress has exercised long-standing deference to states in the area of water allocation and management.  Absent a clear directive from Congress to the contrary, essential fish habitat should not include state-managed water or waters allocated or managed pursuant to interstate compacts or U.S. Supreme Court decrees.


Consultation between federal agencies and the Councils are required under the rules.  This is duplicative of similar requirements under the Endangered Species Act.  NOAA is also to provide recommendations to state agencies regarding state-authorized activities that may impact essential fish habitat.


In short, the rules to expand jurisdiction to areas far beyond fishing in the marine environment, delve into all federal and state operations or state waters.  Ironically, while other activities would be regulated on State waters, fishing would not.  NOAA is not authorized to exercise such far-reaching jurisdiction over state-managed water and non-fishing activities.  As a result, NOAA’ rules should be substantially modified to address these concerns.  Absent such action, Congress should enact further amendments to the Magnuson-Stevens Fishery Conservation and Management Act to expressly limit NOAA’s  jurisdiction.


The proposed rule provides that essential fish habitat may be identified within both federal and state waters.  The proposed rule also encourages efforts to minimize depletion/diversion of freshwater flows into rivers and suggests increasing flows as a measure to improve essential fish habitat.


This represents an unauthorized intrusion on state allocation and management of water resources.  Congress has exercised long-standing deference to states in the area of water allocation and management.  Absent a clear directive from Congress to the contrary, essential fish habitat should not include state-managed waters or waters allocated or managed pursuant to
interstate compacts or U.S. Supreme Court decrees.


Consultation between federal agencies and the councils are required under the proposed rule.  This is duplicative of similar requirements under the Endangered Species Act.  NOAA is also to provide recommendations to state agencies regarding state-authorized activities that may impact essential fish habitat.


In short, the proposed rule seeks to expand NOAA' s jurisdiction to areas far beyond fishing in the marine environment, delving into all federal and state operations or state waters.  Ironically, while other activities would be regulated on State waters, fishing would not.  NOAA is not authorized to exercise such far-reaching jurisdiction over State-managed water and non-fishing activities.  As a result, NOAA' s proposed rule should be substantially modified to address these concerns.  Absent such action, Congress should enact further amendments to the Magnuson Fishery Act to expressly limit NOAA’s jurisdiction.


14.   Funding for U.S. Department of Agriculture’s Environmental Quality Incentives Program


The 2008 Farm Bill included a variety of programs under the Conservation Title to provide technical, financial, and educational assistance to eligible landowners to address soil, water and related natural resources concerns on agricultural and forested lands.  The Environmental Quality Incentive Program (EQIP), the Conservation Reserve Program (CRP), the Conservation Reserve Enhancement Program (CREP), and the Agriculture Water Enhancement Program (WREP) are valuable tools to assist in soil erosion control, water quality protection and nutrient management, ground and surface water conservation, and wildlife habitat improvements.


Congress authorized major funding for these conservation initiatives in the Farm Bill, but has failed to appropriate funds at the
authorized levels or in amounts sufficient to meet the resource needs; similarly, technical assistance and program delivery have also fallen short of the needs.  These valuable programs need to be fully funded and technically supported by Congress and the


15.   Infrastructure Security Costs


Federal multi-purpose projects and delivery systems were authorized by Congress to provide a wide range of significant benefits to millions of citizens in the United States and elsewhere, including:  navigation, flood control, river regulation, interstate and international compact water deliveries, irrigation, municipal water supply, power generation and transmission, economic development, lake and stream recreation, blue ribbon trout fisheries, Fish and Wildlife propagation and mitigation.  State, regional and local water projects and delivery systems also provide a similar range of significant benefits to citizens in the United States.  Increased security costs at these facilities are not normal operation and maintenance activities.  They are costs related to national security and the protection of life, property, health and safety of millions of citizens living near and benefiting from these facilities.  These costs are incurred in the national interest and are, logically and fairly, a national obligation.  



16.   Clean Water Act Reauthorization


In any clarifying amendments to the Federal Water Pollution Control Act of 1972, federal jurisdiction over surface waters of the U.S. should not be expanded.  Any definition of “waters of the U.S.” added to the Act should be consistent with the language set forth in 40 CFR 122.2


Congress should ensure that irrigated agricultural conveyance systems are not considered to be “waters of the U.S.” and that traditional irrigation canal and drainage system management practices can continue free of federal oversight.


Congress should preserve the existing limited exemptions from NPDES permitting provided by Section 402(l) of the Clean Water Act by reaffirming that discharges composed of irrigation return flows and discharges of storm waters not subject to permitting under Section 402(p) of the Act are exempt.


During Congressional debate on any CWA amendments, there should be assurances that the provisions of Sections 101(g) and 510 of the Act remain in force. 

17.   Safe Drinking Water Supplies


Protection of safe public drinking water supplies is of primary importance to the members of this Association as well as to the nation generally. Congress enacted the Safe Drinking Water Act in 1974, directing the Administrator  of the Environmental Protection Agency to set national drinking water quality standards (42 U.S.C. Sec. 300f, et seq,); and amended that Act in 1986 (PL 99-339) by directing the Administrator to, among other things, set maximum contaminant level goals.   EPA should honor SDWA timetables so that proposed contaminants don’t linger on the candidate list and provoke congressionally mandated drinking water standards. 


Radon is a serious inhalation health concern in some areas with a minimal contribution from the drinking water supply. Because the Safe Drinking Water Act requires the regulation of radon in drinking water, public water suppliers should have adequate flexibility to minimize the radon water contribution at a reasonable cost, when the radon in the water contributes meaningfully to the airborne radon levels. Most importantly though, public education programs should be supported to educate the public on ways to control radon in residential homes and buildings.


Recent experience and investigations indicate that disposal of solid waste in dump sites overlying community groundwater supplies can pose a serious threat of contamination to those supplies, particularly where those sites are located in highly permeable areas that provide little or no opportunity to correct failures of containment systems. The federal government already exercises authority over such dump sites near RCRA, in cooperation with state and local agencies. 


Perchlorate has been detected in a number of groundwater supplies in California and in Colorado River supplies in the lower basin. An assessment of industries that have utilized perchlorate needs to be conducted as well as an assessment of potentially affected drinking water supplies and encouragement of clean-up of contaminated supplies. 


Finally, EPA should provide adequate flexibility to public water suppliers to use their financial and technical resources to provide optimum public health protection and must implement the Safe Drinking Water Act of 1996 in accordance with congressional intent. These amendments authorized a drinking water state revolving fund program to assist public water systems in financing the costs of infrastructure needed to achieve or maintain compliance with federal requirements and to protect the public health. 


Specifically, Section 1452 authorized the Administrator of the United States Environmental Protection Agency (EPA) to award capitalization grants to the states, which in turn can provide low-cost loans and other types of financial assistance to eligible projects. 


In 1998, EPA issued Final Guidance for the administration of drinking water state revolving funds. Unfortunately, the Final Guidance prohibits states from providing financial assistance for the construction of dams or reservoirs, or the acquisition of land and water rights. Moreover, a subsequent EPA proposal to allow limited financial assistance for such projects for small systems is unnecessarily restrictive. 


Dams and reservoirs are an integral component of many drinking water systems in western states. Water rights are also an integral component and a legal requirement under state law for drinking systems in the West. The acquisition and development of water rights may be necessary and the most cost-effective alternative to improve the safety and reliability of drinking water systems in many of the arid western states. Such actions may also be the most environmentally sound solution to a specific problem, consistent with state and federal environmental laws. 



18.   Invasive Species


The westward spread of plant and animal species imported from other continents and ecosystems is becoming an ever more serious problem.  These species disrupt ecosystems, damage water facilities, deplete water supplies, and create burdens for struggling native species that depend on the aquatic and terrestrial ecosystems for their survival.


Many of the invasive species that are causing substantial damage were imported for ornamental landscaping, as a result of international commerce, from recreational activities, or by accident.  Often this introduced species thrives and multiplies in this new habitat where it has fewer disease or natural limiting factors, to the detriment of the native species or ecosystems.  In addition to the environmental damage, these invasive species can impose enormous costs to control or eradicate.     


The quagga and zebra mussels have the potential to damage the entire water delivery system in the western United States.  Invasive mussel infestations clog pumps and pipes costing millions of dollars in increased maintenance needs.  Hydropower and water delivery infrastructure and recreation facilities face added operating burdens imposed when these invasive species drain footholds in the water systems.  


Invasive non-native plant species like Arundo, Giant Salvinia, Hydrilla, Phragmites, Russian Olive, and Saltcedar choke waterways, reduce flood carrying capabilities, alter riparian morphology and soak up scarce water supplies, all to the detriment of native species.  These invaders undermine ecosystem protection and restoration in sensitive watersheds throughout the west, such as the Sacramento and San Joaquin Bay-Delta in California and the central Rio Grande in New Mexico.


A national effort is needed to address the serious and growing problem of invasive species, including early detection, monitoring, education, control, and eradication programs for newly arrived invaders and for established invaders.  A large research effort is needed to better quantify the impacts of invasive species and develop more effective control technologies.  


The Department of Interior, and all federal agencies, should act immediately to contain and combat the introduction and spread of these species by providing funding and support for a regional response.  Recreational users should be educated and, where possible, should bear the costs associated with the burdens they create.  


19.   Infrastructure Funding


Multi-purpose water supply and delivery infrastructure provides millions of citizens with essential and beneficial services, including clean drinking water, water for agriculture, economic development, recreational opportunities on rivers, lakes, and streams, instream flows for fish and wildlife, and power generation and transmission. These systems are also an important component of our nation’s flood control infrastructure. Since many of these water systems were built 50 to 100 years ago, their infrastructures are in dire need of repair or replacement.  In the western United States, a complex system for the storage and delivery of water systems was constructed in order to encourage settlement of arid regions or built as the settlement of the lands resulted in the need for a cooperative system to store, divert and deliver water to settled lands and growing communities without immediate access to water sources.


Some of these systems are federally owned, while others are state, regional, or locally owned and operated. As these systems age, the corresponding increase in the frequency and cost of extra-ordinary maintenance needs often exceeds the financial capabilities of individual state or local governments.  Federal funding assistance to state and local governments is essential to address the needs of aging water supply and delivery infrastructure and ensure the continuance of the many benefits they provide across America. Investment must be made in storage facilities (reservoirs and dams), diversion structures (pumps and head gates), delivery systems (canals and pipes), measurement devices (meters and gauges), and environmental enhancements (fish screens and ladders).   


Many of the nation’s water supply and delivery systems were built during a period of heavy and broad federal investment in infrastructure.  In subsequent decades, federal funding for water resources infrastructure has dropped dramatically, placing the burden on state and local authorities to maintain these systems for the greater good.  


In many states, new water resource related infrastructure will be required to provide water to meet increasing urban, agricultural, recreational, and environmental demands and to provide greater management flexibility as climate change alters the type, timing, and quantity of water available. Investment in new storage options will become critical as as water suppliers address the impact of climate change on water supply.  


Planning for our nation’s future water needs is hampered by the lack of 1) a comprehensive inventory of critical infrastructure repair and replacement needs, 2) a comprehensive evaluation of the need for new water resources infrastructure to meet growing demands, and 3) analysis of potential impacts to available water resources caused by climate change.  NWRA recognizes the need to develop this information and supports an accurate and comprehensive assessment resources required to ensure the viability of our current water storage and delivery systems and the need to build new infrastructure to meet future water needs.  


However, we do not have the luxury of waiting for such complete data to be developed.  Many of the older systems are operating in a near failed state. Delay only increases the risks of failure with the resultant loss of ability to deliver water to farms and communities and provide water for fish and recreation


Federal assistance must include a menu of resources that 

-       recognizes federal ownership of facilities where they exist;

-       recognizes project sponsor’s ability to re-pay that includes low interest loans and outright grants;

-       provides flexibility that enables project sponsors to combine  various sources of funding, federal and non-federal; 

-       accounts for projects authorized as single-purpose that today provide multiple benefits and 

-       recognizes funding from the Bonneville Power Administration or similar power authorities as non-federal funding.


With federal funding assistance and cooperative agreements between federal, state, and local entities, our country’s water infrastructure can meet the challenges today and in the future continuing to provide reliable water to the millions that depend on it.


Any existing federally constructed project authorized for funding under new congressional authorization for the purposes of rehabilitation, betterment, and/or replacement shall not be considered as “a new start” – under guidelines interpreted and followed by the Corp of Engineers or Reclamation.



20.   Hydroelectric Power Qualifies as Renewable Energy


Congress has enacted energy legislation that provides financial incentives for new and upgraded renewable energy projects due to increasing concern for the nation’s energy security and for reducing carbon-based energy production.  To date Congress has not included hydropower generation as eligible for these incentives.  Hydropower is an efficient, cost-effective, renewable and clean energy generation source that already accounts for approximately 12% of the nation’s energy supply and nearly 80% of the nation’s total renewable electricity generation.  Hydropower is a non-polluting form of electricity generation. The National Hydropower Association estimates that more than 160 million tons of carbon dioxide emissions were avoided in the United States in 2004 because of hydropower generation in the United States.


Hydropower is a clean, reliable, and affordable renewable energy source that serves as a key component in our national environmental and energy policy objectives.  It is time Congress recognized that hydropower is renewable, and emissions-free.  At a time when there are growing concerns about the impacts of climate change, we need to find energy sources that will help curb greenhouse gas emissions without stifling the economy.  Hydropower should be recognized as a renewable resource similar to wind and solar.  Hydropower generation actually complements generation from these alternative renewable sources. With their unique ability to follow electricity demand, hydropower facilities can firm up the load carrying capacity of renewable generators that need help compensating for their problems with intermittency. Hydropower generation can be the perfect partner for less predictable renewable resources such as wind and solar generation. In fact, many utilities rely on hydropower assets to turn the variable output of wind power into a more dependable resource. 


Despite assumptions in some quarters that hydropower is a mature or “tapped out” technology, significant new potential for hydropower exists. Additional capacity exists at many current hydropower facilities. Incentives to encourage efficiency improvements and capacity upgrades at existing hydropower facilities would increase our nation’s renewable energy supply. Congress took steps in the Energy Policy Act of 2005 and recent tax extender legislation to authorize production tax credits (Production Tax Credit) and tax-credit bonding authority (Clean Renewable Energy Bonds) for incremental hydropower. Many utilities are working to increase the efficiency of their current assets. Currently, the federal government is also studying the potential for increasing electric power production capability at federally-owned water regulation, storage and conveyance projects. 


There are also new, undeveloped sites for hydropower generation. The Energy Policy Act of 2005 required the Bureau of Reclamation to submit a report to Congress identifying and describing the status of potential hydropower facilities included in water surface storage studies undertaken by the Department of Energy that have not been completed or authorized for construction. On November 8, 2005, BOR submitted a comprehensive inventory of Western water storage and hydroelectric projects to the U.S. House Committee on Resources and the Senate Committee on Energy and Natural Resources. See the Sec. 1840 BOR report on hydropower. 


Finally, while environmental restrictions have stifled large-scale development of hydropower potential in this country, there is significant opportunity with smaller existing hydropower technologies that can play a role in the trend toward distributed generation. Technologies such as the application of micro-turbines to public water systems, storm water systems, and small irrigation canal hydropower should be encouraged by renewable energy legislative efforts.

21.   Reauthorization of the Endangered Species Act


In 1973, the United States Congress passed into law the Endangered Species Act (ESA) of 1973 (87 State. 884).  This was in direct response to concern over the endangerment of a variety of the larger mammals of the world, an important natural resource deserving of man's admiration and protection.  Protected species included the African elephant, the timber wolf, and the grizzly bear.


The species are listed solely on biological considerations.  However, once listed, the federal government usually assumes no responsibility for the recovery of the species, with few exceptions.  Recovery plans are produced for some species.  The recovery plans often are no more than vague lists of actions that might be taken to recover the species. No mechanism for implementation is provided, no consideration of the institutional needs to implement the plan is given, no costs are provided, and no consideration of other applicable laws is included.


The Act should be amended to require that the appropriate federal agency provide detailed recovery plans at the time the species are listed.  The recovery plan should identify:  1) the specific activities that will have to be taken to recover the species, 2) the cost and time frame for recovery, 3) the probability of recovery if the actions are taken, 4) the types of development activities that will be subject to Section 7 consultation if the species is listed, 5) the locations of activities that will be subject to Section 7 consultation, and 6) the potential economic impacts of listing the species.


Responsible artificial propagation efforts could be an effective means to avoid water flow requirements which would interfere with water development.  Congress should encourage use of artificial propagation as a means of species recovery.


Where water is found to be necessary to the recovery of listed species, the target flows should not be maintained through conditions imposed on federal permits and regulatory approvals, but rather through the federal government acquiring water rights as provided for in Section 5 of the ESA and in an appropriate manner in accordance with methods outlined by the United States Supreme Court in California v. United States, 438 U.S. 645 (1978).


The amendments to the law adopted by Congress in 1978 were to render the law more workable for the original purposes intended and to achieve a balance in the application thereof; however, the law as administered and applied is still a means to preclude or impede resources development.  It will continue to be so abused unless and until amended by Congress and reasonably interpreted by the Executive Branch.  FWS should be instructed immediately that Solicitor Coldiron's opinion of September 11, 1981, holding that federal non-reserved water rights do not exist, means that the United States must proceed under Section 5 of the ESA to acquire water within state law systems if it wishes to provide water for purposes under the Endangered Species Act.


Insufficient data, scientific analysis, or even organization of the data has often characterized decisions by federal agencies concerning designation of species as endangered, identification of critical habitat, or impact of proposed projects upon the species or habitat area.  Worthwhile projects have been significantly delayed, made more costly, or entirely prohibited; yet subsequent examination of the data and rationale for government agency decisions has found insufficient basis for the decision.  Recent experiences with the snail darter, the Colorado pike minnow, the whooping crane, the least tern and the potential listing of eleven freshwater mussel species in Texas illustrate the need for better data base development and decision making.  Compliance with the National Environmental Policy Act must occur prior to the listing of a threatened or endangered species, approving a recovery plan, or declaring a critical habitat.


Decisions concerning designation of a species as endangered, a habitat as critical or that a project will likely adversely impact survival of the species must be firmly proven and based on reasonable data and scientific evidence.  They should include an evaluation of the present and foreseeable sociological and economic impacts caused by such decisions.  Such data and decisions should be documented in a detailed decision document with the evidence collected, analyzed and decision justified.


For example, the recent proposal by the Fish and Wildlife Service to designate almost the entire Colorado River corridor as critical habitat for four endangered fish illustrates the need for additional control over this process.  The proposed designation was made with very little scientific basis and a complete lack of economic analysis.  Commentators at the initial public meetings pointed out the severe economic impacts of the designation as well as the lack of scientific support for the notion that such a designation is vital to recovery of the fish.


The Act should be amended to permit the Fish and Wildlife Service and the National Marine Fisheries Service to approve conservation plans for species in advance of listing and commit to issue a permit upon any subsequent listing. Such an amendment will provide incentives for conservation measures to be implemented in advance of listing and indeed, provide opportunities to avoid a species listing.  Modification to such plan would require permittees’ consent.


Currently, several public utilities and public agencies in San Diego County are studying extensive areas to be acquired for multi-species habitat conservation.  The study is being coordinated with the state and U.S. Fish and Wildlife Service, which are in accord.  The agencies which are to fund this multi-million dollar program cannot justify spending their customers funds without a guarantee that this advance mitigation would permit taking an endangered plant or animal that might be encountered in a construction project.  The state can give such guarantee, but USFW cannot legally do so without a change in the Act, even when USFW is in full accord with the program.


Complex endangered species situations such as the Sacramento/San Joaquin Bay Delta and Colorado River require an ecosystems approach.  Individual species protections are piecemeal.   Protections can be inadequate while economic costs of listing conservation and recovery are high.


22.   Implementation of the Clean Water Act


State Water Rights - State and local allocation of the use of the waters of the streams of the several western states has provided a critical element in the development of the health and welfare of those areas.  Accordingly, Congress has consistently deferred to state water rights jurisdiction wherever possible.  However, some federal courts have interpreted the provision of the Clean Water Act, Section 101(g), very narrowly.  Accordingly, Congress should reaffirm that Section 101(g) should not be construed or used to supersede or abrogate rights to quantities of water established by any state; and in particular that Section 101(g) applies to Section 404 and 510(2).  Further, the water quality provisions of Section 303 were established to protect water rights allocated by the states for beneficial consumptive use, and that section should not be construed to impair those rights in any way.


POTW Compliance - EPA and participating states are imposing increasingly restrictive effluent limitations for municipal wastewater discharges based upon more restrictive water quality standards.  The adoption of new and more stringent water quality standards will result in existing permits being revised to require immediate compliance with the more stringent effluent limitations.  While a compliance schedule provides some relief to the discharger, the effluent limit must be met regardless of public costs of actual benefits to the downstream uses.  Accordingly, EPA needs authority to allow municipalities operating POTWs a reasonable period to achieve compliance with those new permit conditions, including time for development of new cost-effective technology. Instream Uses - Water quality standards necessary to protect instream uses can require stringent effluent limitations for wastewater dischargers who discharge greater flows than are normally in the stream itself or who discharge to streams having naturally high metal concentrations.  Such effluent limitations are to be achieved regardless of cost to publicly-owned wastewater treatment works and regardless how small the benefit.  Section 302 of the Act provides an opportunity to evaluate the benefits and costs of effluent limitations necessary to protect instream uses.  However, EPA has interpreted Section 302 as not applying to state-issued permits that implement water quality standards pursuant to section 301(b)(1)(C).  Section 302 was amended in 1987 to apply only to NPDES permits issued to industrial dischargers.  Section 302 should be amended to apply to publicly-owned wastewater treatment permits and to be usable by delegate states. Such an amendment should be consistent with the congressional policy that no federal funds be used for advanced waste treatment facility construction where no substantial benefit to stream quality will occur.


Indian Tribes - As part of its implementation of the Clean Water Act’s 1987 addition of Section 518, EPA has created four work groups for the purpose of developing regulations on how Indian tribes will betreated as states under Sections 104, 106, 201 to 219, 303, 305, 314, 319, 401 and 404 of the Act.  Section 518 allows qualified Indian tribes to, among other things, establish water quality standards, issue NPDES permits, dredge and fill permits, and pursue enforcement activities.  The issues related to these responsibilities, and their relationships to state water quality programs and Indian jurisdiction in general, are extremely complex.


Clean Water Act Section 518(3) directs the Administrator, in promulgating regulations which specify how Indian tribes shall be treated as states, to “consult affected states sharing common water bodies and provide a mechanism for the resolution of any unreasonable consequences that may arise as a result of differing water quality standards that may be set by states and Indian tribes located on common bodies of water.”


All issues related to Indian jurisdiction are of vital interest and concern to western states, where many tribes share common water bodies with those states.  When that jurisdiction impacts the management and protection of critical water resources, the concern is even greater.  Because of this concern, NWRA requests that in accordance with Section 518(e) of the Clean Water Act, EPA take the steps necessary to consult all states affected by the inclusion of Indian tribes as states within the Act.


Nonpoint Source Program - Section 319 outlines a program for control of nonpoint sources of pollution.  Water users may be greatly affected by the promulgation of nonpoint source control regulations.  Certain federal agencies such as the Bureau of Reclamation and Soil Conservation Service have extensive knowledge and expertise with agricultural practices and state water laws and should be involved with this process.  Local governmental agencies such as water conservation districts, conservancy districts, and municipalities can also greatly assist in the careful consideration of the many issues that are involved with nonpoint source control measures if applied to agriculture.  EPA and the states should approach the Section 319 program with an orientation designed to fully involve and respect the role of agriculture and other water users in meeting the need for food and fiber and public drinking water supplies in the nation’s and the world’s economy.  Nonpoint source controls, if adopted, should stress reasonable, cost-effective measures which don’t interfere with the exercise of water rights and are demonstrably necessary to protect against injury to the beneficial uses of water supplies.


Adequate funding of the nonpoint source program is particularly important.  Federal mandates to the states without financial support impair the effectiveness of a uniform national program.  In particular, the Clean Water Act Amendments of 1987 require a new focus on nonpoint sources but without financial support.  States are to create and implement individual control strategies for categories of nonpoint sources.  Yet, abandoned mine drainage is a major nonpoint source category where control is not feasible because no person or entity remains financially responsible for the pollution.  Federal aid combined with state programs should be encouraged.  Not only federal funding support for nonpoint source control implementation, but also federal funding for all other federally required actions being implemented by the states should be maintained and improved.


National Estuarine Program - The National Estuary Program, added as Section 320 of the Clean Water Act by the 1987 Amendments, establishes a management conference process for developing and implementing conservation and management plans to protect estuarine resources.  In structuring and administering that process, EPA and other participating federal agencies have, at times, tended to overlook resulting impacts of that Program on public water supplies diverted from streams upstream of the estuary.  However, Section 102(a) of the Act specifically recognizes that one of the Act’s key purposes is to protect public water supplies. In light of increasing pressure on public water supplies, it is essential that EPA and other federal agencies developing National Estuary Program implementation plans fully recognize the need to protect public water supplies developed from streams flowing into the estuary as well as other resources; and allow state, local and regional agencies that rely on those public water supplies to participate fully in developing those plans.


Nationwide Permits - The Secretary should renew each of the existing nationwide permits and should promulgate others which cover general categories of construction activities which are performed nationwide and which either cumulatively or individually will not have significant impact on the environment.  This would allow the Corps to monitor even more standard projects with its existing staff and trained individuals.  If the United States is to remain competitive in world markets, we must all do what we can to improve the efficiency of the system and this is one step towards that end.


Wastewater Contracts - In implementing the federal Clean Water Act provisions for funding wastewater treatment projects constructed by local water agencies, EPA has imposed serious hardships on those agencies by changing federal design criteria and funding allocations, and thus, federal contractual obligations, after completion of those facilities.  This resolution urges EPA to discontinue that practice in order to protect the financial stability of local agencies that have constructed wastewater treatment projects under EPA Clean Water Act contracts.


Under EPA regulations, audits are performed to ensure the project constructed is in accordance with the plans and specifications, and are necessary to discover (1) discrepancies in the project elements that are constructed, (2) whether the project is being used as intended, and (3) whether the project has been constructed under conditions of fraud or corruption practices.  If any of these items is discovered, the grant may and should be annulled in accordance with regulations of the Act (CWA Construction Grants Manual Section 30.920-5, Annulment of Grant).


EPA's audit practice, however, has been to reevaluate the design criteria many years after the project was conceived and to apply
hindsight to determine whether the design criteria are consistent with present day practices.  The result is to reduce the eligibility of project capacity based on this new information not available at the time of project conception and to disallow, retroactively, the use of EPA grant funds, sometimes in the range of millions of dollars.


Section 203(a) of the amended Clean Water Act clearly expresses the congressional intent that eligibility determinations, once made, are not to be later modified unless found to have been made in violation of applicable federal statutes and regulations.


This resolution is in furtherance of paragraph B(8) of NWRA Statement of Objectives, supporting action which would result in uniform project development standards applicable to all federal water development agencies.


Protection of Wetlands and Municipal Supply - Currently, Section 404 of the CWA outlines procedures for issuing permits for the discharge of dredged or fill material into navigable water of the nation.  The Secretary of the Army is charged with administering a regulatory program pursuant to Section 404.  The Administrator of EPA has oversight of the Secretary's regulatory program and has authority to prohibit the discharge of such material to a defined area when it is determined that the discharge will adversely impact municipal water supplies, shellfish beds and fishery areas, wildlife or recreational areas.  Steps for regulations are measures to direct positive steps for water resources managers and measures to integrate protection of wetlands with safe drinking water.


            a.         Section 404(a) should be amended to encourage early and full evaluation of water supply reservoir alternatives in a joint process between a permit applicant and the Army Corps of Engineers.  Currently, the Corps requires submittal of a very detailed application outlining the proposed project in order to initiate the federal regulatory process.  Because the federal process for water supply reservoirs commonly requires preparation of an Environmental Impact Statement pursuant to the National Environmental Policy Act, the alternatives issue is then reopened after the applicant may have already undergone a state review of alternatives.


            b.        Currently, EPA and the Corps publish Memoranda of Agreement (MOA) to set out significant policies dealing with definition and delineation of jurisdictional wetlands and with wetlands mitigation.  This MOA process has been a closed one that has not included Federal Register publication of draft policy statements subject to public review and comment.  Section 404 should be amended to provide for development of policies in a public forum for prioritizing of wetland resources, for development of mitigation banks, and for integration with drinking water requirements which will help to direct water supply managers in their planning for new supplies.


            c.        The CWA exempts a variety of activities including emergency repair of existing water supply facilities, but does not allow for construction of water supply projects under extreme emergency situations.  Section 404(f) should be amended to allow construction of emergency municipal water supply projects to meet minimum water supply needs for the protection of public health in response to drought, natural disaster or other emergency situations.


23.   Dam Removal


NWRA strongly opposes the removal of dams in the West.  Specifically, NWRA opposes the removal of Lower Granite, Little Goose, Lower Monumental and Ice Harbor on the Snake River and Glen Canyon on the Colorado River.


Economic studies are being conducted to assist northwest regional policymakers in deciding whether to ask Congress to bypass and/or breach the following lower Snake River dams for potential salmonid benefits:  Lower Granite, Little Goose,
Lower Monumental and Ice Harbor.  Some of the annual costs of mothballing the four dams are:


       1.         Loss of 11 billion kilowatts;

       2.         Added O & M costs of $2.1 million to provide agricultural water to 37,000 acres currently receiving water from Ice

Harbor pool;

       3.         Loss of $59 million in recreational benefits;

       4.         Increase of $33 million shipping costs due to lost barge navigation in the lower Snake River to Lewiston, Idaho;

       5.         Continued annual $29 million debt service obligation on existing dams.


24.   USGS Cooperative Streamgauging Program Funding


The United States Geological Survey (USGS) has provided a Cooperative Water Program (CWP) and National Streamflow Information Program (NSIP) which have been instrumental in providing streamflow data to federal, state, tribal, and local government agencies, as well as private entities and individuals, to forecast flooding and drought and to project future water supplies for agricultural, municipal, industrial, hydropower, recreation and environmental uses and purposes, including water supplies for fish and wildlife management and needs of endangered species.  While these vital programs benefit many, they have been allowed to erode to the point that it threatens the quantity and quality of basic data provided to a myriad, growing and diffuse number of decision makers and stakeholders, with significantly adverse consequences.  Without timely and accurate information, human life, health, welfare, property, and environmental and natural resources are at considerable risk of loss. Years of neglect and a slow erosion in federal funding, with flat or nearly flat appropriations in the face of continually rising costs, threaten the availability of critical data regarding streamflows, which is the basis for essential public and private decisions.  With continuing drought in many areas, and other areas experiencing devastating floods or facing potential floods, timely and accurate information for sound water resources management has never been more important.


The President’s FY2012  request of $62, 252,000 for the CWP is still not sufficient to reverse the continuing decline in these programs.  For a number of years, federal appropriations have not kept up with increasing program costs, nor matching non-federal contributions.  The CWP, a federal/non-federal streamgauging partnership, was once funded by 50% matching grants, but now roughly two-thirds of the money comes from non-USGS sources.  The 2011 floods demonstrated the importance of basic water data and, in many cases, was all that stood between lost lives and damaged property.  The costs of these programs represent an insignificant fraction of the amount of additional damage that could have occurred. 


It further appears that cost-share support from state and local governments has also been declining, causing the USGS to either abandon streamgauges or requiring local entities, usually irrigation water user organizations, to fill in the gaps caused by the lack of financial support from the state and local governments. These services are essential to the well-being of the nation in managing the water resources of the states.


25.   Irrigation District Contract Claims Against the BOR


The decision in Orff et al. v. United States decided June 23, 2005 has led to an unintended consequence for irrigation districts contracting with the United States under Reclamation Law.  The decision misconstrues the intent of Congress in how 43 U.S.C. 390uu is interpreted.  Prior to this decision, Section 390 had been considered a waiver of immunity against the United States in actions over contracts between irrigation districts and the Bureau of Reclamation.  The decision casts doubt on numerous pending lawsuits across the West involving the use of Section 390uu and could lead to their dismissal.  The Orff decision would make it extremely difficult for contractors with the United States to bring suit in contract disputes with the United States under Reclamation law.


26.   Implementation of the Endangered Species Act


The implementation of the Endangered Species Act (ESA) should not be used as a device to erode states rights under the law to allocate its water resources or to support decisions regarding the reallocation of vested water rights including stored water. The implementation of the ESA must recognize and comply with state law, except to the extent explicitly precluded by federal law.


In addition, in their implementation of the ESA, the administering federal agencies must take into account the requirements of other applicable federal law such as NEPA and Reclamation law. 


If the agencies administering the ESA determine that additional water is necessary for the protection or recovery of a species, the water for such purposes should be acquired through the respective state's water rights system, rather than through the implementation of terms and conditions on the operation of federal or state water supply projects or through federal permits or regulation.  In instances where lawful water reallocation would result in economic hardship, the injured parties should be compensated prior to the reallocation and the resulting injury. 


Decisions implementing the ESA which have significant local, state, regional and national impacts are, as a practical matter, currently being made at the lowest levels within the agencies responsible for administering the ESA.  Decisions to list a species, designate a critical habitat or adoption of a recovery plan should be made by those with ultimate responsibility for the decision, after appropriate consultation with those involved in the decision-making process such as the regional director(s) of the affected agency(ies), as well as the governor(s) of the affected state(s) and the congressional delegation(s) from the impacted area(s).


27.   FERC Licensing Procedures for Hydroelectric Development


Hydroelectric power is an efficient, cost-effective, renewable and clean energy generation source that accounts for approximately 12% of the nation’s energy supply.  With over half of the nation’s non-federal hydroelectric capacity scheduled to be relicensed in the next 15 years, the Federal relicensing process needs significant legislative and regulatory reform to protect and enhance the viability of these and future projects.


Hydropower is the nation’s most abundant renewable energy resource, critical to the economies of the West. It provides important ancillary public benefits to irrigation, water supply, recreation, flood control, and fish and wildlife habitat.


More than half of all non-federal hydro projects, approximately 30,000 megawatts, will go through the FERC-administered relicensing process over the next 15 years.  Most of the power at stake is located in the West.  The hydroelectric licensing process does not produce optimal decisions because the participating federal agencies fail to consider the full effects of mandatory and recommended license conditions.  It is also inefficient, costly and time-consuming, when environmental reviews are not coordinated.  As a result the process is burdensome for all participants, and often leads to litigation.


During the past decade, projects coming out of the hydroelectric relicensing process have experienced a power capacity loss, on average, of about 8 percent.  As this trend continues, the electricity required to replace this loss may contribute to other issues of concern such as air quality.


Federal regulatory agencies’ responsibilities in the relicensing process directly affect how that licensed resource will operate in cooperation with other respective state resource needs, consumer energy costs, recreational opportunities and access.  Many federal agencies have the authority to mandate conditions as part of hydropower license that do not consider the effects of those conditions on the economics of the project or its overall multi-use purposes, such as recreation and clean air attributes. 


Federal legislation is needed to amend the Federal Power Act to require federal resource agencies to consider the overall impacts of their proposed conditions and allow the Federal Energy Regulatory Commission to relicense these valuable projects in a timely, efficient, and economic manner.


It has become apparent that FERC has on numerous occasions relicensed hydroelectric projects or modified existing licenses without ensuring that each license or amended license contains conditions as are necessary to ensure that the project will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for other beneficial public uses.  This is particularly true in regard to conditions in licenses that have in the past been necessary to ensure the ultimate development of a waterway for irrigation of arid lands.  At the same time, FERC has taken the position that 16 U.S.C. 821, which provides that nothing in the Federal Power Act shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective states relating to the control, appropriation, use or distribution of water used in irrigation, does not limit the jurisdiction of FERC in issuing licenses that create a water right, notwithstanding the applicable laws of the respective states.  It is absolutely necessary to ensure the orderly development of the water resources of the respective states that FERC adopt procedures by which the Department of the Interior, Bureau of Reclamation and the appropriate state water agency in each state be given full opportunity to place conditions on any license issued by FERC to ensure that the license does not interfere with the comprehensive plan for development of the waterway, as determined by the state.  The control of the flows in the waterways of the respective states by FERC licenses was neither anticipated nor contemplated by the Congress in adopting the Federal Power Act.


28.   Low Impact Hydropower Generation Exemption


Clean, renewable energy is one of our nation's most important goals in today's society.  The federal government, aware of these needs, has implemented several aggressive mandates targeting our independence from foreign fossil fuels. These mandates are summarized in the new Energy Policy Act of 2005 which directs the federal government to increase its renewable energy use, with a goal of using 3 percent or more in fiscal years 2007 through 2009. In the same act, the federal government envisions that our renewable energy will comprise at least 7.5 percent of our total energy production by 2013.


NWRA members recognize the potential to have a role in helping meet the national need for clean, renewable electrical energy. These water providers have identified many potential sites where small hydropower generation units can be installed inside their water delivery systems across the country.  These projects do not require additional water to generate power; they rely on the water already being moved through the system for irrigation or domestic use and thus have no new impact on the source of the water.   In addition, there is no new impact on the environment since the water delivery structures already exist. Each unit will utilize water gravity flow to generate green energy.


29.   Warren Act Amendments


The Warren Act was adopted on February 21, 1911, which is classified to 43 U.S.C. §§523-525.  Section 1 of the Warren Act (43 U.S.C. §523) clearly provides that when storage or carrying capacity has been or may be provided in excess of the requirements of the lands to be irrigated under any reclamation project, the Secretary of the Interior, preserving a first right to the lands and entry men under the project, is authorized, upon such terms as he may determine to be just and equitable, to contract for impounding, storage, and carriage of water to an extent not exceeding such capacity with irrigation systems operating under the Carey Act (43 U.S.C. §641), and individuals, corporations, associations, and irrigation districts organized for or engaged in furnishing or in distributing water for irrigation.  It is clear from this section of the Warren Act that the purpose of the reclamation project to provide water for irrigation should not be compromised, and that any excess capacity should be first used for distributing water for irrigation.  There is an ever-increasing demand for the use of excess capacity in storage or distribution facilities to provide water for non-irrigation purposes.  It is believed that such non-irrigation purposes should be accommodated, so long as the original purpose and use of excess capacity for irrigation retains its priority for such use of excess capacity.


Section 1 of the Warren Act further provides, among other things, that the Secretary shall take into consideration the cost of construction and maintenance of the reservoir by which such water is to be impounded or stored and the canal by which it is to be carried, and such charges shall be just and equitable as to water users under the government project.  This section further provides that the entity contracting for such water shall not make any charge for the storage, carriage, or delivery of such water in excess of the charge paid to the United States, except to such extent as may be reasonable and necessary to cover cost of carriage and delivery of such water through their works.  Disputes have arisen as to whether or not the terms by which the excess capacity is to be used, as determined by the Secretary, are in fact just and equitable.  Disputes have also arisen in regard to the disposition of monies received from the use of excess capacity in reservoirs and distribution systems that were or are being paid for by existing project beneficiaries.  The Bureau of Reclamation and the previous Administration took the position that all such funds should inure to the benefit of the Reclamation Fund, and should not be applied to the cost of operation and maintenance, construction, or for the benefit of project beneficiaries who have paid or committed to pay the construction and operation and maintenance costs of such facilities.  The Bureau of Reclamation and the previous Administration also took the position that only the Secretary of Interior has the authority to contract for the use of excess capacity for the storage or delivery of water for irrigation. This is inconsistent with subsection J of the Fact Finders Act of 1924 which provides that the miscellaneous revenues generated by the Warren Act contracts that provide for the sale or rental of surplus water should be credited to the project or divisions of the project to which the construction cost has been charged.  Notwithstanding these provisions, the Bureau of Reclamation is urging that the Warren Act be interpreted to mean that it may recover interest on construction costs and such funds would be paid into the Reclamation Fund, to the exclusion of project beneficiaries who have paid or are paying the construction costs.  Amendments to the Warren Act should be adopted to clarify and prohibit this interpretation of the existing Warren Act, and to expand its use, when appropriate.


The Warren Act should be amended to insure that when the operation and maintenance of a facility has been transferred to the project beneficiary, that entity operating and maintaining the facilities which have excess capacity should be entitled to contract for the use of such excess capacity.  Amendments also should clearly provide that all  monies received by the Secretary or the contracting entity should first be credited to and applied to the operation, maintenance or repair costs for the project, then to construction charges for the project or division of the project, and finally to the project beneficiaries.  The original Warren Act of 1911 contemplated that the reclamation facilities would be operated and maintained by the Bureau of Reclamation, and not the project beneficiaries.  Today, except for storage, most facilities are operated and maintained by the water users.


Amendments to the Warren Act and related acts should recognize that although legal title to reclamation facilities may rest with the Bureau of Reclamation, the equitable title lies with those project beneficiaries that have paid the construction cost of the facilities pursuant to the Reclamation Act of 1902.  The United States, and particularly the Bureau of Reclamation, should not be authorized by Congress to assert a right to use these facilities for purposes which are contrary to the purposes established in the authorization for such projects.  Any amendments to the Warren Act should also ensure that project purposes are not compromised and that no use of project facilities should be authorized by contract or otherwise without the approval of the project beneficiaries or in the authorizing legislation for the construction of a facility, and that the equitable owners of the facility should receive the benefits, especially where the construction and operation and maintenance costs are presently being paid by the project beneficiaries, and not the Bureau of Reclamation.


30.   Colorado River Salinity Control


The Colorado River provides important water supplies for 18 million Americans in the seven basin states of Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming.  These people live in the most arid portion of the United States and rely heavily upon the Colorado River for municipal and industrial water supplies, as well as for irrigation for 1.7 million acres of prime agricultural land.  In addition, the Colorado River supplies water for half a million people and half a million acres of irrigated farm lands in the Republic of Mexico.


The seven Colorado River basin states and their water users have been working with Congress, the Executive Branch of the federal government, and the courts for many years to ensure a fair and effective allocation of the river's water supply.  Salinity levels in the Colorado have become a major issue with which the Colorado River Basin states have had to deal.  Without implementation of salinity control measurers, Colorado River salinity levels are projected to increase to about 1,000 mg/L by the year 2010.  The economic damages currently experienced by municipal, industrial and agricultural users of Colorado River water in the United States alone amount to about $500 million per year and are expected to double by the end of the century.


Salinity limits on water delivered from the Colorado River to Mexico are a part of a treaty obligation. The Mexican Water Treaty of 1944 obligates the United States to deliver a “guaranteed annual quantity” of 1.5 million acre feet of Colorado River Water to Mexico.  The United States may determine, under a declaration of surplus conditions on the river, that an additional 200,000 acre-feet is available for delivery.  After completion of the Wellton-Mohawk Division of the Gila Project in the early 1960's, the Bureau of Reclamation began drainage pumping in order to avoid crop damage.  Mexico protested the increased salinity in the water delivered which resulted in a series of Minutes to the Treaty.  Minute 242, adopted in 1973, is primarily focused on salinity issues. Under this treaty amendment the United States must deliver a quantity greater than 1.36 maf/yr at the Northern International Boundary.  The United States is obligated to maintain an annual average salinity at Morelos Dam in Mexico of no more than 115 parts per million, plus or minus 30 parts per million, over the annual average salinity of the Colorado River at Imperial Dam in the United States


In 1974, Congress enacted the Colorado River Basin Salinity Control Act (PL 93-320) to implement Minute 242, and to establish a program for controlling Colorado River salinity level within the United States.  The seven Colorado River basin states adopted, and EPA approved, numeric salinity criteria for the river and a plan for implementing salinity control measurers to maintain that criteria, while the basin states continue to develop their respective shares of Colorado River water.  In 1984, PL 93-320 was amended to provide additional salinity  control activities including a new voluntary, costs-shared, on farm salinity control program by the Department of  Agriculture as well as a larger percentage of non-federal cost sharing for Department of Interior programs so that the numeric criteria can be maintained in a cost-effective manner.  In 1995, the law was amended to increase the Bureau of Reclamation's appropriations ceiling for construction of new salinity control projects.  The amendment also authorizes Reclamation to implement new measures basin-wide one month after the submittal of a planning report to the appropriate committees of Congress for consideration.


Long-term use of Colorado River supplies have increased the salinity of Southern California’s groundwater basins and has significantly reduced the ability to recycle wastewater for beneficial uses.  A regional salinity management study jointly funded by the United States Bureau of Reclamation and the Metropolitan Water District of Southern California has recommended that approximately two hundred million dollars in regional brine lines be constructed to maintain the long-term salt balance of the southern California coastal plain.  The Southern California Regional Brine Authorization Act would provide that twenty-five percent of these construction costs be provided by the Bureau.


31.   Transfer of Reclamation Project Facilities


Those reclamation projects which have been constructed by the federal government have increased the federal debt which needs to be reduced.  Administration of those irrigation projects by the federal agencies have been costly and can be more effectively administered and operated by the individual project beneficiaries.  Increasing federal mandates and other demands which are unfunded have placed costly and undue burdens upon project beneficiaries.  Renegotiation of federal contracts has been slow and the length of the contracts has been severely reduced unjustly to the project beneficiaries.


Transfer of reclamation project facilities and related or acquired lands, which were federally funded, to those project beneficiaries who have requested to purchase their respective facilities and dams must be accomplished by legislation.  When the project facilities and dams were originally built construction costs were determined.  These construction costs should be the cost basis for said transfer.  Where final payment has not been made, cash discounts, depreciation and unaccounted for credits should be considered to reduce such costs.


It is also appropriate to transfer multiple purpose reclamation project facilities to project beneficiaries.  The legislation urged here should not foreclose this type of transfer or other mechanisms short of the transfer of title to these facilities which might serve the purpose of privatization.       


32.   Flow Augmentation


Irrigators in the reclamation states see no environmental justice in treating the effects of hydropower, navigation and industrial development as the baseline against which the effects of earlier irrigation development on listed species and their habitat must be measured.  Indeed, it is often the case that non-irrigation development has been the principal cause of the ecosystem degradation which resulted in the listing of native fish, wildlife, and plant species as endangered or threatened pursuant to the Endangered Species Act.


It is equally unjust, and in many instances unlawful, to take or threaten to take water appropriated for irrigation, water protected by compact, or water stored in a reclamation facility for reclamation purposes, to provide flow augmentation in mitigation of the incidental take of endangered or threatened species or their habitat or to justify a no-jeopardy finding from an incidental take which was caused by neither the appropriation and diversion of the water for consumptive uses nor the storage of water in a reclamation facility for consumptive uses.


It is absolutely necessary that the federal agencies charged with enforcement of the Endangered Species Act or the Clean Water Act recognize that the waters within the respective states belong to those states and that the appropriation of such water shall be controlled and implemented by each respective state, and the doctrine of First in Time is First in Right must be held inviolate.


Efforts in the Pacific Northwest by the National Marine Fisheries Service and the Bureau of Reclamation to obtain water from reclamation storage facilities for the purposes of augmenting flows in the Snake and Columbia Rivers for endangered species in mitigation of injury and incidental take of listed species and their habitat by federal facilities located on said rivers violate the above principles.  Such efforts have been pursued for several years under the threat that if water is not provided it will be taken,
notwithstanding the fact that there is no clear legal authority for the taking of such water to mitigate conditions created by the federal government in its lower Snake and Columbia River Dams.  Such efforts are most grievous when there is no clear scientific evidence that augmented flows will reduce the incidental take of listed species or enhance their recovery in the lower Snake and Columbia Rivers.  The taking of appropriated water should never be a reasonable and prudent alternative. 


33.   Municipal Discharges Into Irrigation Works Exemption


Section 402 (1) of the Clean Water Act exempts “discharges composed entirely of return flows from irrigated agriculture” from NPDES permitting.  The “composed only of return flows from irrigated agriculture” language of Section 402 (1) appears to nullify the permitting exemption now provided by the Clean Water Act, if a canal or drain carries any storm water in addition to “irrigation return flows”.


It is not uncommon for irrigation canals and drain systems to intercept and carry some storm-water runoff in order to prevent local flooding.  Some irrigation districts are also required by state law to provide flood control protection by carrying away storm waters.  Most of the storm water carried in agricultural drains is not subject to NPDES permitting.  In recent years the USEPA has increased the scope and coverage of its municipal storm-water permitting program so that irrigation canals and drain systems in a district may intercept either or both permitted storm-waters and those not subject to permitting.  Section 402 (1) should be amended to include both classes of storm-water when joined by irrigation return flows.

34.   Policy on Addressing Impacts of Potential Climate Change


Climate change is a matter of public discussion.  The causes and impacts of climate change are under debate.  There is a consensus among scientists that climate change will affect global temperatures, sea levels, precipitation patterns and other water-related factors.  


Water managers and the agencies that affect water management policy should take into account the possibility that climate change could affect patterns of precipitation, snowpack, runoff and related water resource factors.  


To minimize effects of reduced or altered water supplies resulting from climate change, the federal government, along with state and local agencies, should plan for enhanced storage and redundancy.  They must also consider and implement enhanced capabilities to move water supplies to areas of critical demand in accordance with applicable law and  must augment and conserve existing water supplies.


35.   Concern About the Changes Proposed to the Federal Power Marketing Administrations


On March 16, 2012, Department of Energy (DOE) Secretary Steven Chu issued a memorandum outlining several changes he intends to make to the federal Power Marketing Administrations (PMAs).  The PMAs market cost-based hydropower from federal dams operated by the Army Corps of Engineers and the Bureau of Reclamation to over 1,100 not-for-profit public power utilities and rural electric cooperatives.  These proposed changes, drafted without consulting the very PMA customers and Reclamation water users they would affect, threaten to impose drastic economic burdens on federal water and hydropower customers.  Secretary Chu’s memo and his vision for the PMAs are counter to the principles and structures under which the PMA customers and the PMAs themselves have operated successfully for so long and through which they have carried out Congress’ Reclamation project financing.


Clean, renewable hydropower provides a reliable energy source of dependable, renewable, carbon-free and cost-based energy.  Traditionally, modifications and improvements to federal facilities that generate hydropower have been paid for by the customers that benefit.  This process of customer-driven incremental upgrades has allowed PMA customers to pay electricity rates which are commensurate with the benefits and services they choose to receive.  Many of the changes proposed by Secretary Chu would force PMA customers and Reclamation project water users to pay for changes that DOE wishes to make to the PMAs without demonstrated commensurate benefits.  Equally objectionable is the fact that Secretary Chu did not consult with PMA customers or Reclamation project water users before he released this memo, which calls into question the integrity of the process that DOE supposedly undertook this summer to get stakeholder feedback.


Variable resource integration underlies much of Secretary Chu’s memo.  The memo also envisions changes to the PMAs’ rate designs, and the forced usage of federal borrowing authorities.  These proposals show both a lack of understanding of the PMAs’ history and a disregard for power customer and water user input.  Furthermore, PMA customers themselves are already tackling many of the “directives” Secretary Chu has discussed, but are doing so with local and regional input, decision-making, and resources rather than a theoretical “top-down” Washington, D.C.-focused approach that has little or no relationship to the needs of local electric customers and water users.  Reclamation project water users are engaged in this dialogue and planning.  The unnecessary and unwise steps proposed by Secretary Chu will raise the costs for all PMA operations, resulting in commensurate electricity rate increases for PMA customers and Reclamation water users.  Indeed, some estimates predict that the cost of irrigation water in many projects could increase as much as $10/acre-foot.