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August 9, 2013

Senate Asks: What Should We Do on Water? Here’s One Answer

Earlier I wrote about a Senate hearing on the Colorado River Basin Water Supply and Demand Study. In case you missed it, the complete hearing is archived and worth watching.

Members of the committee had a recurring question about the projected 3.2 million acre-foot* shortfall between supply and demand in the Colorado River Basin: What – if anything – should the federal government do about it?

In his opening remarks, Sen. Lee (R-UT) approvingly read from the study’s disclaimer that said the study is not to be used as a foundation for any legislative or regulatory action by the federal government. Sen. Udall (D-CO) directly asked the first panel of witnesses what the federal government’s role should be. Sen. Flake (R-AZ) reiterated this question to the second panel of witnesses, saying it was his preference that the federal government be the “last resort” when it comes to solving water problems in the basin.

These statements reflect an appropriate hesitance in Congress to tell Western states what to do with their water.

Management of water resources has always been the province of the states, a responsibility they vigorously defend. But it is wrong to think the federal government doesn’t have a role to play or Congress a responsibility to act.

Mike Connor, commissioner of the Bureau of Reclamation, called Reclamation a valued partner to the states in water management. Don Ostler, executive director of the Upper Colorado River Commission, was more explicit. He said Reclamation provides essential technical support, guidance and research to the states. He also testified that funding for programs such as WaterSMART makes the Colorado River Basin Study possible. Taylor Hawes, Colorado River program director for The Nature Conservancy, asked for support for WaterSMART in her testimony.

The federal role in responding to our water resources management challenges is broader than what these witnesses testified, however. Leaving aside the fact that issues between states that also impact other countries (e.g., Mexico in the case of the Colorado River) have a necessary federal nexus, the problems in the Colorado River Basin are a bellwether for issues coming to all parts of the country.

The northwestern and southeastern United States are already facing water conflicts analogous to those in the Colorado River Basin, the U.S. energy sector is vulnerable nationwide to projected water shortages and floods, and water for fish and wildlife is too often an afterthought among other competing uses.

If you care about having water to drink in Atlanta or lights that come on in Seattle or wetlands that support wildlife in the northern Great Plains, you should be interested in lessons being learned right now in the Colorado River Basin.

There is one action sportsmen and Congress can take in the short term to address these disparate challenges: support WaterSMART. This program and similar federal efforts are competitive cost share programs that develop local solutions to national problems. According to the Bureau of Reclamation, WaterSMART grants have already led to 616,000 acre-feet of water saved through conservation.

In 2013 alone, WaterSMART gave the following:

  • $1 million to the Hoopa Valley Tribe in northern California to install over 20,000 linear feet of new pipeline to address inefficiencies in the existing delivery system of open ditches and pipes. The project will save 379 acre-feet of water annually, which will be left in Soctish and Captain John Creeks, eventually feeding into the Trinity and lower Klamath Rivers where it will benefit threatened coho salmon and green sturgeon.
  • $200,000 to the Fort Shaw Irrigation District in Montana to upgrade 10,800 feet of open ditch canal to pipe and install six new center pivots, allowing growers to switch from flood irrigation and increase efficiency.  The project will save 2,628 acre-feet annually, which will be left in the Sun River to help maintain and improve minimum stream flows.
  • $1.5 million to the Central Oregon Irrigation District to upgrade 4,500 linear feet of canal to pipe, an improvement that will save 2,552 acre-feet each year.  The conserved water will become permanent instream flows in the middle Deschutes River and in a reach of the Crooked River that is critical for the endangered Middle Columbia River steelhead.
  • $1.5 million to the Cub River Irrigation Company in northern Utah to upgrade 6.5 miles of open ditch canal to pipe. The project will save 2,800 acre-feet of water each year, which will be left in the Bear River and benefit the Bear River Migratory Bird Refuge downstream.

In fiscal year 2013, the federal government spent a little over $52 million on the WaterSMART program. For 2014, President Obama has asked Congress for $35 million for the program, a 32 percent cut from last year. The U.S. House of Representatives passed legislation that would fund WaterSMART at $16.6 million, a 68 percent cut from last year. As part of that cut, the House bill would completely eliminate funding for the competitive grants, like those listed above, that have led to significant on-the-ground water conservation in partnership with local communities.

The bright spot is the Senate, which has legislation funding WaterSMART at $51 million. This is essentially the same level as last year, 45 percent above President Obama’s request and three times the House level. When the House and Senate meet to resolve their differences and fund the government for 2014, they can demonstrate to sportsmen how important water conservation is by the level of investment they make in WaterSMART.

Congress can also show its support for sportsmen by extending the successful WaterSMART partnerships with state and local entities. The authorization for water conservation grants is about to run out, which is part of the reason funding is in jeopardy. At a minimum, Congress needs to reauthorize these grants and renew its commitment to water conservation.

The TRCP Center for Water Resources will be taking this message to Congress. Stay tuned for ways you can get involved to let your representatives in Congress know that investments that conserve water for fish and wildlife are important to hunters and anglers.

* An acrefoot of water is approximately as much water as a family of four will use in a year.

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July 15, 2013

Did the Supreme Court Just Make it Harder for Sportsmen to Protect Wetlands…Again?

On June 25th the Supreme Court handed down a little-noticed but important opinion that may hurt sportsmen and prized wildlife habitat. Lost in the focus on decisions related to same-sex marriage and the Voting Rights Act, the Court’s 5-4 ruling in Koontz v. St. Johns River Water Management District  will make it harder for land-use permitting agencies to develop strategies that mitigate the impacts of development on fish and wildlife habitat. This comes on the heels of Supreme Court decisions in 2001 and 2006 that obscured the criteria for determining which water bodies receive protection under the Clean Water Act. (Check out EPA’s waters of the United States website for a description of the definitional challenges in the Clean Water Act caused by these two Supreme Court decisions)

Photo Courtesy of the U.S. National Park Service.

I will leave it to others to argue whether the Court’s decision in Koontz is wise or unwise. Here’s the take home for sportsmen: the ruling increases the threat of litigation looming over land-use permitting agencies. Instead of negotiating appropriate mitigation in good faith, they now have an incentive to deny permits up front or approve permits without pursuing creative ways to protect hunting and fishing opportunities.

As this decision ripples through future permitting cases, sportsmen must engage with land use planners to protect the hunting and fishing lands they cherish, and to ensure the ruling doesn’t stand in the way of conservation efforts.

It’s important to note that the Supreme Court did not rule on the merits of Mr. Koontz’s suit; it only ruled on process. Therefore, we don’t know whether Mr. Koontz or similar plaintiffs will be successful in their lawsuits, but the expanded opportunities for litigation may have a chilling effect on permitting agencies nonetheless.

Photo Courtesy of the U.S. Supreme Court.

Read on for a full summary of the Koontz decision.

The case involved Coy Koontz, a man who owned property in Florida wetlands that he wanted to develop for commercial purposes. Florida law requires applicants to mitigate the environmental impact of any development, and Mr. Koontz offered to do so by giving the local district a “conservation easement” (essentially an agreement to limit future development) on nearly three quarters of his property.

The local district determined his offer did not comply with Florida law since it would result in a net loss of wetlands. The district countered and suggested Mr. Koontz do one of two things: (1) reduce the size of this development and increase the size of the conservation easement or (2) pay for improvements to wetlands owned by the district several miles away. When Mr. Koontz refused to take either action or offer an alternative, the district denied his permit and Mr. Koontz sued the district. Mr. Koontz argued that forcing him to take either of these actions in order to secure a development permit violated his Constitutional right to “just compensation” for property taken by the government.

Lower courts found in favor of Mr. Koontz, ruling that the District did not comply with two tests laid out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994) that set limits on what conditions the government can place on the approval of land use permits. The Nollan and Dolan tests ensure that government demands for property must have a link to the development’s substantive impact on the public and be proportional to that impact. In other words, the government’s demands cannot be arbitrary or excessive.

The Florida Supreme Court overturned the lower courts’ rulings because (1) the District denied Mr. Koontz’s permit (rather than demanding property as part of permit approval) and (2) the request for money to improve district-owned wetlands does not count as a taking. In other words, Nollan and Dolan do not apply because Mr. Koontz never gave up any property and money wouldn’t count as property even if he had paid for additional wetlands improvements.

However, the U.S. Supreme Court reversed on both counts. It ruled:

  1. The Nollan and Dolan tests must apply even when a permit is denied, as it was in this case, to ensure that the government cannot coerce a permit applicant to give up their Fifth Amendment right to just compensation for property taken. This part of the decision was unanimous, with all nine justices in agreement.
  2. The Nollan and Dolan tests apply even when the government demand is for money. This is where the liberal wing of the Court differed in the 5-4 ruling. 

With the extension of the Nollan and Dolan tests, land-use planning will likely become more litigious and local permitting agencies may have less flexibility to require mitigation. Local permitting agencies now have an incentive to avoid the threat of litigation by either denying a permit without negotiating with the applicant or approve a permit without effective mitigation plans. One result stifles responsible development; the other impedes protection of wildlife and habitat. Neither is desirable.

As Justice Kagan said in her dissent, “If a local government risked a lawsuit every time it made a suggestion to an applicant about how to meet permitting criteria, it would cease to do so; indeed, the government might desist altogether from communicating with applicants.” (Emphasis added.)

If there is a silver lining in the decision, it’s that the Court recognized the value of mitigation. The Court held that “Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack.” Such an affirmative statement bodes well for conservation cases that may come before the Court in the future, and the TRCP’s efforts to promote water conservation.

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July 11, 2013

DON’T MISS: Senate Tackles Colorado River Management

The U.S. Senate Committee on Energy and Natural Resources is holding a hearing on Tuesday, July 16, at 2:30 p.m. ET to receive testimony on the Bureau of Reclamation’s Colorado River Basin Water Supply and Demand Study. This study is a landmark analysis of water supplies in the basin over the next 50 years that will be a critical tool for water managers at all levels as they plan for future water use.

Sportsmen need to be aware of this important planning activity and what it means for hunting and fishing. You will be able to watch a live webcast of the hearing on the committee’s website.

In the first season of “TRCP’s Conservation Field Notes,” our friend Steven Rinella discussed the importance of managing water in the western United States, including in the Colorado River basin, and what it means for fish and wildlife. Check it out, and stay tuned for more updates on the Colorado River study.

 

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June 27, 2013

Only 3 More Days to Speak up for Bristol Bay

Join the TRCP and the sporting community in protecting the abundant fish and wildlife resources in Bristol Bay, Alaska. Speak up today and be entered to win a trip for two in Alaska’s Crystal Creek Lodge.

The time is now to tell the EPA to act upon its scientifically sound watershed assessment showing Bristol Bay salmon are at grave risk if Pebble Mine is allowed to proceed.

Pebble would be the largest open pit mine in North America and would create up to 10.8 billion tons of waste containing heavy metal toxins known to destroy salmon spawning and rearing habitat.

Southwest Alaska’s remarkable web of abundant wildlife, including salmon, bears, moose, wolves and migratory waterfowl, is in serious jeopardy – along with one of the nation’s foremost sporting destinations.

Take a stand for Alaska’s greatest fish and wildlife habitat and you’ll be entered to win a trip for two to Crystal Creek Lodge in Bristol Bay.


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June 18, 2013

Can Crowd-Sourced Funding Save Conservation?

When times are tough, people get creative. One TRCP partner in particular has developed an out-of-the-box strategy to cure the conservation-funding blues.

National habitat and conservation organization, National Wild Turkey Federation, has recruited the help of an online crowd-sourced funding platform called CrowdTilt to fulfill their organizational goals.

Crowd-sourced funding, or crowdfunding, is a fundraising approach that allows many individuals to make small online donations toward a common project – in this case, conserving the Black Hills of Wyoming and South Dakota.

Unable to standby and watch as a mountain pine beetle epidemic devastated the area, NWTF decided to take action. The obvious solution to hire a dedicated forester for the area was shot down due to a lack of funding for such a position.

NWTF  has turned to crowdfunding to raise money for the position. The hiring of a forest manager is a crucial first step toward ensuring the long-term health of the Black Hills and the wildlife that calls its forests home.

From the CrowdTilt page:

By helping to secure this professional forester, you can support wildlife habitat enhancement, reducing the risk of catastrophic wildfire, forest management planning and mountain pine beetle prevention and treatment. These improvements will cover more than 2,000 acres and be funded by cost share dollars, possibly as much as $800,000, available through the Natural Resource Conservation Service and a previously acquired federal grant.

NWTF’s CrowdTilt campaign already has raised $440 of the $10,000 needed to make am impact on the pine beetle epidemic in the Black Hills. Stay tuned to find out whether NWTF reaches their goal.

Do you think the idea will catch on?

HOW YOU CAN HELP

WHAT WILL FEWER HUNTERS MEAN FOR CONSERVATION?

The precipitous drop in hunter participation should be a call to action for all sportsmen and women, because it will have a significant ripple effect on key conservation funding models.

Learn More
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