Pathfinder Modification Project
Two of the many points of contention in the Nebraska v. Wyoming lawsuit were endangered species in Central Platte, Nebraska and the Deer Creek Dam and Reservoir Project in Wyoming.
During the settlement process, in an effort to resolve these issues, the Bureau of Reclamation (USBR) agreed that if the State of Wyoming would fund improvements to Pathfinder Dam that would allow for the recapture of 53,493 acre feet of storage space lost to sediment, the USBR would agree to the use of its water right and facility to implement the following operations through a contract with the State of Wyoming:
1. An Environmental Account with a capacity of 33,493 acre feet would be allowed to store approximately three percent of the inflow into the Pathfinder Reservoir to serve as the water contribution from the State of Wyoming to Platte River Recovery Implementation Program (PRRIP), which provides Endangered Species Act clearances for all Platte River Basin water users.
2. A Wyoming account with a capacity of 20,000 acre feet would be allowed to store approximately two percent of the inflow into the reservoir to serve as a substitute for the Deer Creek Dam and Reservoir and that the USBR would operate this account to provide the same water supply benefits of 9,600 acre feet per year. The water will be used by the state in the following priority: 1) a supplemental municipal water supply that could serve municipalities from Encampment to Torrington; 2) a supplemental supply to provide replacement water for depletions from wells and tributaries in Goshen County; and 3) lease water to the PRRIP to recoup some project costs if the water is not needed for the first two items.
The agreement between the USBR and the states of Colorado, Nebraska and Wyoming relating to the Pathfinder Modification Project (PMP) was codified through a stipulation to the settlement of the Nebraska v. Wyoming lawsuit (PMP stipulation), which was approved by the U.S. Supreme Court.
The PMP enjoys the support of the many entities in Wyoming. Despite the fact the project will affect their supply and they must share the benefits from the water right and facility, federal contractors of storage water from Pathfinder Reservoir in Wyoming and Nebraska support the project. In Wyoming, the Goshen Irrigation District, the Hill Irrigation District, the Rock Ranch Irrigation District and the North Platte Water Users Association support the project. In addition, the Casper Alcova Irrigation District, the federal contractor for storage water in Seminoe Reservoir supports the project, even though Seminoe Reservoir could be affected by the restoration of the 53,493 acre feet of storage space in Pathfinder Reservoir. In addition, the City of Casper, City of Cheyenne and others have documented their support for the project.
The Platte River Recovery Implementation Program, which was initiated on Jan. 1, 2007, and the promise of the environmental account in the Pathfinder Modification Project have already benefited water users in Wyoming by providing Endangered Species Act clearances for their federal actions. These water users include the communities of Casper, Cheyenne, Douglas, Rawlins, Saratoga, Sinclair and Torrington. In addition, clearances have been provided for livestock water facilities on Bureau of Land Management lands and irrigation facilities on U.S. Forest Service lands throughout the Platte River Basin. Further, clearances for extensions to contracts for Glendo storage water and the operation of all federal reservoirs in Wyoming are being provided.
The recaptured storage space will enjoy the benefits of the existing 1904 priority storage right for Pathfinder Reservoir as the storage right is for 1,070,000 acre feet, which includes the 53,493 acre feet for the PMP. The Upper North Platte Valley Water Users Association (UNPVWUA) has expressed concerns that the project could increase water rights administration in the area above Pathfinder Reservoir. The UNPVWUA has suggested that the USBR should be prohibited from making any “calls” for water rights administration for the benefit of Pathfinder Reservoir. The entitlement to seek water rights administration for the benefit of your water supply is an inherent right of all holders of Wyoming water rights, just like the right to bring a lawsuit when you believe you have been unduly impacted by the actions of others. However, the determination of validity of the “call” for water rights administration rests with the Wyoming State Engineer. This is where protections exist for the UNPVWUA.
The modified North Platte Decree provides independent water supply entitlements in each of the three major reaches of the North Platte River in Wyoming: above Pathfinder Reservoir, Pathfinder Reservoir to Guernsey Dam and Guernsey Dam to the Wyoming/Nebraska state line. During the irrigation season, each of these three segments is administered independent of the other reaches. Upon review of the Decree, the Wyoming Attorney General Patrick Crank issued a formal opinion concluding: “The State Engineer should not honor a request for priority regulation for Pathfinder during the irrigation season.”
Pat Tyrrell, Wyoming State Engineer has addressed the matter in the following manner: “In summary, absent a set of facts we have yet to divine, it is difficult to conceive that additional regulations of diversions in the upper system for the benefit of Pathfinder Reservoir during the May 1 to Sept. 30 period would be equitable. Such a request for regulation would suffer significant additional scrutiny due to the construction of the Modified Decree and settlement stipulations, our language in our Governing statutes and rules, and other considerations as described in the recent Attorney General’s opinion.”
The North Platte Decree contains provisions describing when a request for water right administration is made for the benefit of the federal reservoirs in Wyoming during the non-irrigation season, February through April. The North Platte Decree Committee (NPDC) was established to assist in monitoring, administering and implementing the North Platte Decree. The NPDC recently amended the procedures for this requested call for administration to ensure that the PMP would not result in additional calls for water right administration during the non-irrigation season. The USBR has completed analyses that verify that with the change implemented by the NPDC, the PMP will not increase water right administration in the non-irrigation season.
Pursuant to the North Platte Decree, the Pathfinder Modification stipulation states, in part: “The recaptured storage space would store water under the existing 1904 storage right for Pathfinder Reservoir and would enjoy the same entitlements as other uses in the reservoir with the exception that the recaptured storage space could not place regulatory calls on the existing water rights upstream of Pathfinder Reservoir other than the rights pertaining to Seminoe Reservoir.” (Emphasis added.)
The 2006 Wyoming Legislature conditioned the funding for the PMP by specifying that if the Wyoming State Engineer honors a call for regulation of water rights upstream of Pathfinder Reservoir pursuant to the Nebraska v. Wyoming settlement, the Wyoming Water Development Office, in consultation with the State Engineer, must report to the Governor and Legislature’s Select Water Committee if the regulation was caused by the PMP. This condition will allow the state policy and decision makers to decide if the PMP is placing an undue burden on the water users in the Upper North Platte Basin and take actions as deemed appropriate.
The USBR has petitioned Wyoming Board of Control to add the additional uses to the water right for Pathfinder Reservoir needed to implement the PMP. The UNPVWUA is challenging that petition. Apparently, the UNPVWUA is seeking absolute guarantees against future water right administration for the benefit of Pathfinder Reservoir. Absolute guarantees are impossible when dealing with the annual variations in water supplies in Wyoming. However, provisions in the Decree, the PMP stipulation and state law provide protection to Upper North Platte River Basin. Wyoming sought and obtained protections for existing water uses in the settlement of the Nebraska v. Wyoming lawsuit and the negotiations that lead to the Platte River Recovery Implementation Program. These goals were met in both cases, particularly relating to the river segment above Pathfinder Reservoir. Yet, the UNPVWUA continues to allege that the purpose of the PMP is to use water rights administration to shepherd water past headgates in the Upper North Platte basin for the benefit of Pathfinder Reservoir and endangered species in the Central Platte. This is simply not correct.
Mike Purcell is Director of the Wyoming Water Development Office and can be reached at MPURCE@state.wy.us.