November 30, 2007

Minimum Streamflow in Arkansas

Posted on November 30, 2007 by Brian Rosenthal

  With some exceptions and common law developed standards, Arkansas has traditionally followed the reasonable use theory of the riparian doctrine. A riparian user must use water in a manner that is reasonable compared to others’ rights  (including as to ground water). 

            As a mid-south state, Arkansas receives a moderate amount of rain per year (approximately 49.19 inches on average since 1895 compiled from the Arkansas Natural Resource Commission’s Arkansas Ground Water Protection and Management Report for 2006). Stress on the amount, use of and quality of its underground aquifers, primarily in east and southeast Arkansas, have  resulted in increased scrutiny and planning for alternate water sources, including from conservation, recovery and surface water.        

            Arkansas has no current active system in operation for regulating water usage.  The Arkansas Natural Resources Commission, however, is directed to monitor our state’s water resources and can set minimum streamflows by rulemaking (but this step requires consultation with other state agencies). Water needs to be considered are domestic and municipal water supplies; agricultural and industrial; navigation; recreational; fish and wildlife and other ecological needs. The regulations and laws describe preferences and priorities, but are untested in practice.

            Minimum streamflows are to be set on a case by case basis, defining such stream flows as the “quantity of water required to meet the largest of the following instream flow needs as determined on a case-by-case basis:” (1) interstate compacts, (2) navigation, (3) fish and wildlife, (4) water quality, and (5) aquifer recharge. 

            After minimum flows are established, non-riparian permits may be applied for from “excess surface water.” Excess surface water means twenty-five percent (25%) of the amount of water available on an average annual basis from any watershed basin above that amount required to satisfy all of the following:

                        1.         Existing riparian rights as of June 28, 1985

                        2.         The water needs of federal water projects existing on June 28, 1985

                        3.         The firm yield of all reservoirs in existence on June 28, 1985

                        4.         Maintenance of instream flows for wish and wildlife, water quality, aquifer recharge requirements, and navigation

                        5.         Future water needs of the basis of origin as projected in the State’s Water Plan

                        6.         Additionally, in the White River Basin, permitted transfers may not exceed on a monthly basis an amount that is 50% of the monthly average.

Minimum streamflow is important because of its relevance to the Commission’s planning in the case of a possible shortage. Separate and apart from its use in this way, minimum streamflows are also used to determine when excess surface water is available for transfers to nonriparians.

            These standards may be reviewed in the near future to begin establishing minimum streamflows and potentially, associated protected levels, which the Commission may attempt to implement by rule under shortage conditions. The White River is scheduled as the first river to be reviewed in conjunction with the Memphis District Corps of Engineers’ Grand Prairie Area Demonstration Project.  While such irrigation projects were unusual in eastern states, another such project is on the horizon with the Corps’ November 2007 Record of Decision issued for the Bayou Meto Basin of Arkansas.    

            Thus, Arkansas’s riparian rights doctrines are yielding to state systems of oversight based on depleted aquifers and increased demands. For more information on Arkansas’s water resources and rules, click here

Tags: water rights

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Oregon Water Developments 

Posted on November 30, 2007 by Rick Glick

Oregon Governor Ted Kulongoski has announced that water will be among the top three priorities for the 2009 legislative session. During the interim, here are some developments to track:

            Oregon Oasis Project

            During the 2007 legislative session, agricultural interests in northeast Oregon proposed the Oasis Project, a bill (H.B. 3525) to withdraw up to 500,000 acre-feet of water per year for 25 years from the Upper Columbia River (above Bonneville Dam) for irrigation purposes. The Oasis Project was offered as a solution to shrinking water supplies for high value agriculture in eastern Oregon and to provide a measure of equity relative to Columbia water use by Oregon’s neighbors. 

            Of the total river flow of 198 million acre-feet per year, irrigated agriculture withdrawals comprise 6.93%. Of that amount, Idaho withdraws 52.5%, Washington 32.8%, Montana 7.3% and Oregon 7.4%. If the Oasis Project were to be implemented, its share of water drawn from the Columbia would increase to 9.25%. 

            The reason that Oregon’s share is relatively small is that the state placed a “temporary” moratorium on such withdrawals in 1994 that remains in place to this day. In December 1993, the four Northwest governors signed a letter suggesting that the states defer to the Northwest Power Planning Council for proposing a cooperative policy for salmon recovery with federal agencies. In a January 6, 1994 letter, Oregon’s representatives to the Northwest Power Planning Council requested that the WRD adopt rules temporarily restricting use of Columbia River water. This “temporary” moratorium has lasted 13 years. In the meantime, Washington has actively encouraged new irrigation in the Columbia basin and continues to do so. The 500,000 af/y withdrawal proposed by the Oasis sponsors represents about 0.0025% of the total river flow.

            Of the total diversion from the Columbia that Oasis would authorize, 195,000 would be devoted to replacing depleted ground water supplies for irrigation of 65,000 acres. 300,000 acre feet of “new” water would be used to add 100,000 acres under cultivation. 5,000 acre feet would be available for municipal use. A fee of $10 per acre-foot of new water would be used by the WRD to develop and manage instream water conservation projects in collaboration with the Warm Springs and Umatilla tribes. 

            H.B. 3525 failed to pass in 2007, but the bill’s sponsors continue to be hopeful of ultimate success. In the meantime, they are exploring other alternatives. Prime among them is withdrawing Columbia River water during the winter months for aquifer storage and recovery (ASR). ASR, if feasible, could replenish the critical ground water areas and provide a sustainable water source for many years. A bill is being proposed for the interim 2008 legislative session to fund a feasibility study of this approach. Another potential alternative is to establish a regional water bank to facilitate cooperative use of the resource. Scoggins Dam Raise and Title Transfer Project

            A consortium of Portland area municipal water and sewer utilities are joining together to form the Tualatin Basin Water Supply Project Partnership, comprised of Clean Water Services, Tualatin Valley Water District (TVWD), Tualatin Valley Irrigation District (TVID), Washington County, Lake Oswego Corporation and the Cities of Beaverton, Hillsboro, Tigard, and Forest Grove.  The partnership is working to secure future water supplies for environmental and community needs. Clean Water Services is a county service district that provides sanitary sewer service and urban surface water management to a 123 square mile area within Washington County, Oregon. The population served is approximately 470,000 within the 12 member cities and unincorporated county areas, one of the fasted growing areas in the state.

            The Project seeks to provide an additional 52,000 acre-feet of water for multiple uses in the Tualatin Basin through title transfer of the federal Tualatin Project to a local entity, a raise of Scoggins Dam and construction of a raw water pipeline.  The partnership and the U.S. Bureau of Reclamation will jointly fund the Project. Currently, the partnership is pursuing federal funding from Reclamation to complete a Planning Report/Draft Environmental Statement and is exploring the possibility of transfer of title of the physical facilities associated with the Tualatin Project.

            Oregon Water Supply and Conservation Initiative

            The Oregon Water Resources Department has launched and the 2007 legislature appropriated funds to create a means of identifying Oregon water needs and potential solutions. It is the first major statewide planning action for future water resources in a very long time. 

            The Oregon Progress Board’s State of the Environment Report (2000) noted that one of the state’s major environmental challenges is inadequate water supply. That is the impetus for the Oasis and Tualatin projects described above. Surface waters in most of Oregon during non-winter months are fully appropriated by existing out-of-stream and instream uses. Ground water resources are showing signs of overuse and are becoming unstable in many areas. Conflicts between instream and out-of-stream needs, exacerbated by listings of aquatic species under the Endangered Species Act, have become increasingly divisive and expensive to resolve.  The Initiative consists of five key components:

(1)   Assessment of existing and future water needs in Oregon

(2)   Completion of a statewide inventory of potential storage sites;

(3)   Statewide analysis of conservation opportunities;

(4)   Completion of a statewide investigation of basin yield estimates;

Match funding for community-based and regional water supply planning.

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