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2014
-- Waters of the U.S. Rule
-- State Water Plan
-- Win-Win for Farmers and Fish
-- 2014 Annual Conference
**Agenda and Registation
information inside
Montana Water Resources Association
WATERS OF THE U.S. RULE – CONSERVATION OR CONTROL?
The current administration and the Environmental Protection Agency (EPA) claim the new proposed waters
of the U.S. (WOTUS) rules are simply addressing court decisions that have led to uncertainty with regards
to administering provisions of the Clean Water Act (CWA). The EPA proposed rule redefines the definitions
of what qualifies as a water of the United States and thus subject to federal jurisdiction and regulation vs.
individual state regulation. When Congress passed the CWA in 1972 the intent was to accomplish
improvements in the quality of U.S. waters through shared levels of responsibility between the states and
federal government. The waters that were held in federal/EPA and U.S. Army Corps of Engineers (CORPs)
control were those waters determined to be navigable. The individual states would then retain jurisdiction
over all other waters within the state boundaries. While those waters were defined by the statute and
reaffirmed by several later court decisions, other recent court decisions have muddied the waters, so to
speak. The EPA proposed rules are intended to address the perceived uncertainties brought on by those
court decisions.
Unfortunately, the new proposed rules appear to extend the reach of federal government control to virtually
all waters. This level of federal control would then have significant implications regarding other land use
and private property rights. While the EPA claims the rules extend their jurisdiction no farther than the
original regulation, they are extensive, technical and complicated by new and undefined terms, leaving
many unanswered questions and confusion.
Congress has noted the extent to which these proposed rules have raised concern. The House of
Representatives recently passed HR 5078 (Water of the U.S. Regulatory Overreach Protection Act) which
would prevent the EPA or CORPs, from implementing or enforcing the rules. (cont. Page 3)
“Montana’s Voice for Montana’s Water”
2014 Joint Annual Conference
MONTANA WATER RESOURCES ASSOCIATION &
UPPER MISSOURI WATER ASSOCIATION
The Joint Annual Conference of
the Montana Water Resources
Association and the Upper
Missoui Water Association will
be held in Billings, Montana at
the Crowne Plaza Hotel.
Conference topics will cover
current administrative and
regulatory issues affecting water
users at both state and national
levels, as well as training
information for daily project
applications.
Montana, North Dakota, South
Dakota and Wyoming hold the joint
conference in Montana every four
years. The conference provides an
opportunity for water users within
the four state region to meet and
discuss current issues and new
technologies.
MONTANA WATER
RESOURCES ASSOCIATION
BOARD OF DIRECTORS
Bob Hardin ……………………… President
Jennifer Patrick ………… 1st Vice President
John Crowley ………….. 2nd Vice President
Jim Foster ………………………. Treasurer
Russ Anderson …………………... Director
Scott Aspenlieder ………………... Director
Wayne Blevins …………………... Director
James Brower …………………..... Director
Russ Cumin ……………………… Director
Holly Franz ………………………. Director
Shawn Higley ……………………. Director
Bill Hritsco …..………………....... Director
Steve Hughes …..………………… Director
Dave Kinnard …..………………... Director
Tim Meuchel …………………….. Director
Dennis Miotke …………………… Director
Peter Rebish …..………………….. Director
Randy Reed ….……………........... Director
Lynne Rettig …..…………………. Director
Don Steinbeisser .…..……….......... Director
Verm Stokes …..…………………. Director
Jay Thom ………………………… Director
Gordon Wind …..………………… Director
Mike Murphy ………………....... Exec. Dir.
Page 2
The conference will begin Tuesday
morning October 28th with the
educational seminar. It will wrap up
Thursday at noon. Please see pages
5-7 for the agenda and conference
registration.
Exec’s Comments
Dear Montana Water Users
It is a pleasure for me to
provide these comments as
the Executive Director of
the Montana Water
Resources Association
Issues continue to present challenges for irrigators and other water
managers. The complexity of issues has certainly not diminished over
the years and in fact challenges to our water and other priviate property
rights continue to increase. It is our hope that the revised newsletter and
new format will provide a solid source of information to help water
managers make sound decisions.
We will be reaching out to our Board and membership for their input
into future editions of the newsletter in order to gain a better
understanding of issues and their local impacts.
Your comments regarding the new newsletter will also be appreciated
as we move forward in the future.
Sincerely
Mike
Mike Murphy
Waters of the U.S. (cont. from page 1)
The CORPs, largely responsible for 404 permitting and enforcement
under the CWA, has been notably absent from the debate regarding
the rules. HR 5078 was supported by a number of Democrats in the
House, but prospects for passage in the Senate are less likely and the
Administration has already noted that the legislation would be vetoed if
it makes it to the President’s desk. State agricultural commissioners
recently voted unanimously during the annual meeting of the National
Association of State Departments of Agriculture to call for the
administration to withdraw the proposed rules. The Commissioners
also urged the administration to work with the State Departments and
other stakeholders to find an acceptable path forward prior to adoption
of any new rule.
The Montana Water Resources Association and a dozen other
Montana Organizations recently sent a letter to Montana Governor
Bullock as well as Montana’s Congressional delegation encouraging
their opposition to the proposed rules.
For those wishing to review the proposed new rules see the Federal
Register, Vol. 79, No. 76, dated Monday, April 21, 2014. The comment
period, for those wishing to respond to the proposal, closes October
23rd. Submit your comments under Docket ID No. EPA-HW-OW-20110880. To comment by email go to: [email protected]. Include EPAHQ-OW-2011-0880 in the subject line of your message.
STATE WATER
PLAN
PLANNING FOR
THE FUTURE
Statute directs the Montana
Department of Natural
Resources and Conservation
(DNRC) to formulate and
develop a state water plan.
STATE WATER PLAN
Consistent with the legislative directive, DNRC initiated a statewide effort to reach out to the water users for input regarding
the concerns of Montana water users and their assessments of the issues facing our water resources in order to develop a
plan to address current and future water demands.
In order to conduct necessary research and gather input, DNRC initiated the process by formulating four statewide basin
advisory groups. Advisory groups were setup to represent major water basins in the state, divided into Clark
Fork/Kootenia, Upper Missouri, Lower Missouri, and Yellowstone Basin. Stakeholders from throughout the range of
interests were asked to provide nominations to the basin advisory groups who were then selected by the department. The
groups comprised of 20 individuals per group represented a cross section of water user interests from across the state.
Each advisory group held public meetings to gain input. After conducting meetings and hearing public comment and group
discussion, the most important issues and goals for each basin were compiled into individual basin advisory group
summaries. Upon approval by respective advisory groups, summary reports were presented to DNRC. Consistent with it’s
legislative responsibility, DNRC formulated basin advisory reports into a draft statewide water plan that presents a broad
overview of state water resources and lays out a path for managing those resources over the next 20 years. The
department recently presented the draft plan to the Water Policy Committee and Environmental Quality Council for review
and public comment. The draft document is now available for public comment. DNRC will be holding a series of statewide
meetings to gain further public comment prior to finalizing a state water plan for presentation to the Legislature.
Key recommendations within the plan are stated in terms of short, intermediate and long term recommendations within five
major categories. The major categories within the plan include: water supply and demand; water use administration; water
information; ecological health and environment; and collaborative water planning and coordination. Front and center on the
Montana Water Resources Association priorities for development of the state plan was a strong assertion of the Prior
Appropriation Doctrine (First in time – First in right) and the water use act. While some of the recommendations within the
basins deviated some from those key priorities, the final draft document stays on target and provides a good reinforcement
of those foundations. It is however, important that water users continue to provide their input into the final stages of the
administrative and legislative process. Public comments can be made at 13 public meetings being held throughout the state
or directly to the DNRC, in writing, by October 26, by going to dnrc.mt.gov/wrd/water_mgmt/state_water_plan/.
Page 3
WIN-WIN SOLUTION FOR FARMERS AND FISH:
CONSTRUCTING A FISH BYPASS ON THE LOWER YELLOWSTONE
Lower Yellowstone Irrigation Project (LYIP) is
comprised of four cooperating irrigation
districts serving approximately 55,000 acres,
impacting 300 farm and ranch families, and
five communities in eastern central Montana
and western North Dakota. Intake Diversion
Dam spans the Yellowstone River down
stream of Glendive, Montana and diverts
water from the Yellowstone into LYIP’s main
canal which parallels the river to its
confluence with the Missouri. Constructed by
the Bureau of Reclamation pursuant to the
1902 Newlands Act, the project is operated
by LYIP Joint Board of Control.
The Intake Diversion Dam is a 107 year old
rock and wooden structure that functions as a
weir to move water into headworks of the
LYIP canal. Since its construction, LYIP has
manually added rock via trolley to the
diversion every two or three years to maintain
a reliable head of water, protect the structure
from ice flows, and enable LYIP to reliably
deliver water for more than 100 years.
However, fisheries biologists expressed
concern the process and related structure
pose problems for fish passage. In a
partnership with numerous stakeholders,
Bureau of Reclamation (BOR), U.S. Army
Corps of Engineers (Army Corps), and the
U.S. Fish and Wildlife Service (FWS) devised
a win-win approach for a solution to the issue
that will provide reliable water for irrigators
and a fish friendly passage.
The Pallid Sturgeon
FWS listed pallid sturgeon as endangered in
1990. One of the largest freshwater fish on
the continent, pallid sturgeon is a relatively
poor swimmer and sticks to major flows that
are neither too turbulent nor rough. As noted
earlier, fish biologists concluded that Intake
Diversion impedes fish passage, and believe
it particularly problematic for pallid sturgeon.
A 2003 amended Missouri River Biological
Opinion (BiOp) directed Army Corps to assist
BOR to provide passage for pallid sturgeon at
Intake Diversion Dam. The 2007 Water
Resources Development Act authorized the
Army Corps to use funding from the Missouri
River Recovery and Mitigation Program to
assist BOR with modifications. Army Corps
and BOR proposed modifications in a 2010
final Environmental Assessment (EA),
selecting the installation of fish screens and
new main canal headworks to reduce
entrainment of fish into the canal and
construction of a modified rock ramp for
enhanced fish passage.
Phase 1 Modifications
In 2010, BOR started building a new concrete
headworks structure on the side of the river.
It also dug and widened a new half mile of
canal to accommodate fish screens
Page 4
large enough that the velocity of water
flowing into the canal would not suck the
larvae and fish eggs against the screens
and trap them (possibly killing them).
Installation of the screens was completed in
2012.
Army Corps specified very tight screening
with a number of automated safety features
to meet the requirements of the BiOp. The
tight design caused an average overall
elevation friction loss of one half foot to a
full foot more than prior to the new screens.
Ultimately, the screens reduce the amount
of water entering the canal unless more
rock is added to raise the water level at the
headworks. Since installation of the
screens, LYIP has been forced to replace a
much more extensive amount of rock in
order to maintain water levels sufficient to
divert their authorized legal water right.
In July 2012, LYIP diverted water levels
were running extremely low. Instead of
taking the average 7 to 8 days, it took 21
days to complete rocking requirements. In
August the river hit a 50 year low depth.
Multiple boulders sticking out of the water,
created a visible boulder fence that inhibited
fish migration. This brought LYIP under
scrutiny of some local biologists, who
reported LYIP to the Army Corps regulatory
division. Biologists argued that under
Section 10 of the Rivers and Harbors Act,
any obstruction or alteration in a “navigable
water” requires authorization from Army
Army Corps. As a result, LYIP is now
working with the Corps to get a permit for
work the BOR and the LYIP had done every
few years for more than 100 years. LYIP
initially requested a permit covering the time
period up to construction of the fish bypass.
However, FWS pushed for limiting the
permit to only two years in order to avoid
undertaking an extensive environmental
assessment. Consequently, LYIP reduced
their request to two years.
The Status of Phase 2 Modifications
The second part of the proposed dam
modifications is the fish friendly rock ramp
and is under critical reevaluation. The cost
of the rock ramp project jumped
substantially based on engineering
estimates necessary to meet the stringent
biological design requirements of the BiOp.
The Army Corps, BOR, FWS, Montana
FWP, Montana DNRC, and LYIP all worked
together to develop a preferred alternative
draft supplement to the 2010 environmental
assessment to weigh in on a fish bypass
channel and the rock ramp.
Public meetings on the draft supplement
brought out a great deal of support. 900
people from the Glendive and Sidney areas
attended the meetings with only two people
expressing opposition. This high level of
support reflects an economic reality that
jobs and communities along the Lower
Yellowstone revolve around irrigated
agriculture. Without LYIP’s current reliable
delivery of water, the farms of sugar beets,
malt barley, corn, hay and livestock
pasture would dry up. Sugar beet
producers, for example, support the
Sidney sugar factory which contracts
30,000 plus acres from around the project
area from Miles City, Montana to Trenton,
North Dakota. In addition, LYIP provides
reliable irrigation for Busch Ag malt barley
and USDA and MSU Ag Research Labs.
Local communities understand this reality
and support this project for the future of
both agriculture and recreation in the area.
Congress appropriated funds for this
project from the Missouri River Recovery
and Mitigation Program in 2010, sunsetting
in September 2014. Due to delays, the
Army Corps reverted funding set aside
because there was no way to meet the
September deadline. The 2015
Presidential Budget has funding set aside
for the project.
The Takeaway/Summary
LYIP, federal and state agencies, and
other stake holders are hoping this project
is a model of success for other future
endangered species actions. Project
completion will provide benefits to all fish
species of the Lower Yellowstone River,
agriculture, communities, boaters,
recreationists and fishing enthusiasts.
This endangered species related project
proposal does not force a choice between
the fish or the farmer. It is a win-win for
both. Irrigators will have a fish friendly
concrete weir with a stable short rock ramp
that will remove the need to pile rock
across the river, reduce maintenance
costs, and help ensure adequate flows.
95% of Lower Yellowstone fish species will
be able to readily migrate over the weir
without impediment and with reduced
turbulence. For species less able to
navigate the rock ramp and weir, such as
the pallid sturgeon, they can use the low
gradient fish bypass to safely migrate up
and down the river. This project represents
a class example of a number of agencies
and stakeholders finding common ground
in support of agricultural producers,
communities, and recreationists while
helping an endangered species.
Let’s hope common sense collaboration
will prevail helping to keep our American
Farmer from becoming an endangered
species.
MONTANA WATER RESOURCES ASSOCIATION &
UPPER MISSOURI WATER ASSOCIATION
Joint Annual Meeting & Education Seminar Conference Program
Montana Water
Crowne Plaza Billings
Billings, Montana
October 28- 30, 2014
Resources Association
TUESDAY, OCTOBER 28 – PRE-SESSION EDUCATIONAL SEMINAR
9:00 - 11:00 a.m.
Registration
10:30 -11:15 a.m.
Being Competitive in the Funding Arena
Gerald Benock, Manager, Planning and Development, Bureau of Reclamation Area office
Alice Stanley, Bureau Chief, Montana Department of Natural Resources and Conservation
Ditch Easements; Know Your Rights and Plan for the Future
Bryan Wilson, Attorney-Advisor, Office of the Field Solicitor, US Dept. of Interior
Holly Franz, Attorney, Franz and Driscoll, PLLP
Josh German, Water Resources and Planning Goup, Bureau of Reclamation Regional Office
Lunch
11:15 a.m. - Noon
Noon – 1:30 p.m.
1:30 – 2:00 p.m.
2:00 – 2:30 p.m.
2:30 – 3:00 p.m.
3:00 – 3:30 p.m.
3:30 – 4:00 p.m.
John Deere Innovations in Equipment Technology
Kelly Snively, Account Manager, RDO Integrated Controls
Traveling Screens, Conveyors, and Fish Screening Innovations
Joel Irving, International Water Screens
Temporary Pumping Solutions
Jake Sienko, Sales Engineer, Dewatering Solutions, Xylem, Inc.
Networking Break
6:00 – 7:00 p.m.
Irrigation Project Modernization Through Automation System Improvement
Damien Pearson, Rubicon
Solutions for Water Resource Challenges – Understanding the Subsurface
Seth Broadfoot, Director, Water Resources International, XRI Geophysics
Registration
6:30 p.m.
Montana Water Resources Association Annual Membership Meeting/ Fall Board Meeting
4:00 – 4:30 p.m.
WEDNESDAY, OCTOBER 29 – ANNUAL CONFERENCE SESSIONS
7:00 a.m.
Registration Opens
7:30 – 9:30 a.m.
Upper Missouri Water Association (UMWA) Breakfast Board Meeting
9:30 – 9:35 a.m.
Opening Remarks
Mike Murphy, UMWA President and MWRA Executive Director
Welcome
Tom Hanel, Billings Mayor
Bureau of Reclamation Area Managers Update
Brent Esplin, Montana Area Office Manager
Dave Rosenkrance, Dakotas Area Office
Carly Ronca or Lyle Myler, Wyoming Area Office
Networking break
Water Rights Adjudication Effort – Protecting our Rights for the Future
Honorable Russ McElyea, Chief Water Judge, Montana Water Court
North Dakota Missouri River Stakeholders
Ryan Norrell, North Dakota Missouri River Stakeholders Group
9:35 – 9:40 a.m.
9:40 – 10:45 a.m.
10:45 – 11:00 a.m.
11:00 – 11:30 a.m.
11:30 – Noon
Page 5
Noon – 1:30 p.m.
Opening Luncheon: Overview of DC
Speaker: Kris Polly, CEO, Water Strategies, LLC
1:30 – 2:45 p.m.
State of the States Address: Directors and State Engineers Panel
John Tubbs, Director, Montana Department of Natural Resources and Conservation
Pat Fridgen, Director, Planning and Education Division, North Dakota State Water Commission
Sue Lowry, Administrator, Interstate Streams Division, Wyoming State Engineers Office
2:45 – 3:00 p.m.
Afternoon Networking Break
3:00 – 3:15 p.m.
WRDA Bill – Dam Safety & Levy Issues – Key Provisions Impact Canals and Ditches
Ryan Norrell, Executive Director, North Dakota Missouri River Stakeholders
3:15 – 4:00 p.m.
Big Horn River Adjudication
Nancy McCann, Adjudication Manager, Wyoming State Board of Control
4:00 – 5:00 p.m.
State Water Planning – Preparing for the Future
Tim Davis, Administrator, Water Resources Division, Montana DNRC
TBA, Wyoming Water Development Commission
Pat Fridgen, Director, Planning and Education Division, ND State Water Commission
5:30 – 6:30 p.m.
Social Hour with Silent Auction and Raffle
6:30 p.m.
Evening Banquet
UMWA Distinguished Service Awards Presentations
THURSDAY, OCTOBER 30 – ANNUAL CONCFERENCE SESSIONS RECONVENE
7:30 – 8:30 a.m.
Continental Breakfast
8:30 – 8:35 a.m.
Call to Order
8:35 – 9:15 a.m.
Endangered Species Act Issues – Intake Diversion
James Brower, Manager, Lower Yellowstone Irrigation Project
Brent Esplin, Montana Area Office Manager, Bureau of Reclamation
9:15 – 10:00 a.m.
Clean Water Act – Waters of the United States
Ryan Norrell, Executive Director, North Dakota Missouri River Stakeholders
10:00 – 10:30 a.m.
Networking Break
10:30 – 11:00 a.m.
Aquatic Invasive Species – What Are We Doing to Protect Our Water Resources?
Linnaea Schroeer, Program Manager, Montana Department of Fish, Wildlife and Parks
11:00 – 11:30 a.m.
Hydropower Development
Chris Gomer, Civil Engineer, Bureau of Reclamation, Montana Area Office
Jim Foster, Manager, Helena Valley Irrigation District
Noon
Adjourn
1:00 – 5:00 p.m.
Bureau of Reclamation – Face to Face Meetings
Page 6
Montana Water Resources Association and Upper Missouri Water Association
Annual Conference and Educational Seminar
Crowne Plaza, Billings, Montana
October 28-30, 2014
REGISTRATION FORM
Montana Water
Resources Association
Name
Spouse Name (if Attending)
Representing
E-mail
Address
City
___________________ State
Zip
Please indicate the number attending for each event:
Phone (
)
#
Annual Conference and Education Seminar Package (Oct. 28-30)
Includes all conference activities Oct. 28-Oct. 30
All meals, sessions, social hour/banquet, breaks
Cost
$ 225.00
Total
$_______
Spouse Registration including all sessions and meals
$ 150.00
$ _______
----------------------------------------------------------------------------------------------------------------------------- ----------------------------Annual Conference Only (Oct. 29-30)
Includes all conference activities: all meals, sessions, social hour/banquet and breaks
from Wednesday, Oct. 29 through the morning of Thursday, Oct. 30
$ 150.00
$_______
Spouse registration includes all conference sessions and meals
$ 100.00
$
---------------------------------------------------------------------------------------------------------------------- -----------------------------------Educational Seminar Only (Oct. 28)
Includes sessions and breaks on Tuesday, Oct.28
$ 75.00
$
Spouse registration includes lunch and the seminar
$ 50.00
$ _______
------------------------------------------------------------------------------------------------------------ ---------------------------------------------Please indicate if you have special dietary needs or are in need of vegetarian meals
Extra meal tickets may be purchased:
Seminar Lunch (Oct. 28)
Opening Luncheon (Oct. 29)
Awards Banquet (Oct. 29)
Breakfast (Oct. 30)
$
$
$
$
20.00
20.00
28.00
15.00
Totals
$_______
$_______
$_______
$
$_______
HOTEL ROOMS: A block of rooms has been reserved for Oct. 27-29 at the Crowne Plaza in Billings, MT.
Reserve your room(s) by calling (406) 252-7400 by Oct. 10. (Ask for Upper Missouri Water Association meeting block h2o).
Rooms may also be available at the Clock Tower Inn, adjacent to the Crowne Plaza by calling (406) 252-5511
CANCELLATION POLICY: Registration is requested by Oct. 20. When you register for the convention, we plan for your arrival.
In the unlikely event you have to cancel your registration, the following cancellation policy will be applied. There will be no refunds
for cancellations received after Oct. 20 - substitutions are permitted.
Send completed registration form and check to:
Upper Missouri Water Association
PO Box 2254
Bismarck, ND 58502
Phone: 701-223-4232
Email: [email protected]
or
Montanta Water Resources Association
PO Box 4927
Helena, MT 59604
Phone: 406-235-4555
Email: [email protected]
Page 7
Montana Water Resources Association
Coming Events:
MWRA/UMWA
Conference 2014
Billings, Montana
October 28-30, 2014
Agenda and
Registration Inside
Montana Water Resources Association
PO Box 4927
Helena, Montana 59604