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The Wyoming Water Development Commission (WWDC) is set to enter its busy fall season in which the Commission develops and recommends to the Legislature the proposed 2017 water development program for the state.

WWDC has been accepting applications for project funding since last summer, and at the Nov. 9-11 meeting in Casper, they will hear from project sponsors and staff regarding the specifics of the projects. From there, WWDC will provide preliminary recommendations for the drafting of the omnibus water bills for both planning and construction projects. WWDC will then consider and finalize the omnibus water bills at the Dec. 14-15 meeting in Cheyenne.

Once approved by the WWDC, the omnibus water bills will be forwarded to the Select Water Committee of the Legislature.

Funding concerns

As with all state agencies this last year, funding has been a concern for WWDC. The funding used by the Commission to fund water projects is derived from severance tax collections, with each of the three water development accounts (WDA) receiving a statutorily fixed percentage of taxes flowing into the Severance Tax Distribution Account. At this point in time, the distribution formulas remain unchanged, and the revenue stream supporting the water development program is stable.

The three water development accounts are designated for very specific purposes as described below:

WDA I is to fund new development projects such as new transmission pipelines, storage tanks and small reservoirs.

WDA II is to fund rehabilitation projects including canal lining, diversion structure replacement or placing open canals into pipelines.

WDA III was established in 2005 with the specific purpose of constructing new dams and reservoirs with a capacity of 2,000 acre-feet or greater and existing reservoir enlargements of 1,000 acre-feet in size or larger.

Projects

A preliminary review of the projects seeking WWDC funding this year shows a broad mix of municipal, irrigation district and conservation district projects. In the municipal sector, WWDC will be considering several new water storage tanks, multiple transmission lines, three groundwater exploration wells and supply studies that look at enhancing or expanding potable water supplies into underserved areas. Generally, these types of projects are considered new development and are funded from WDA I.

An unusually large number of watershed study requests – seven – were received this year from conservation districts. Watershed studies provide a comprehensive review and analysis of watershed health and water supply issues in the target drainage. Often times, the studies identify irrigation water shortages, which is the starting point to begin the planning process for constructing new storage reservoirs. This is exactly what happened in the Blacks Fork Watershed Study which has now advanced to a feasibility study to enlarge Meeks Cabin Dam and Reservoir.

The watershed studies are also used to identify needed small water projects, thereby qualifying them for the very popular Small Water Project Program (SWPP). In the SWPP, WWDC provides 50 percent grants to construct water features such as stock wells, stock ponds, stock water pipelines, solar platforms for stock wells and environmental improvements to stream systems.

Another interesting project up for WWDC consideration is a proposal for the state to purchase the private water assets in Lake DeSmet and Healy Reservoir. Currently, Johnson County owns Lake DeSmet with the exception of 62,199 acre-feet of space and water rights that are privately owned. Healy Reservoir, which has 5,140 acre-feet of storage, and the associated Clear Creek diversion structure, pump station and 6.7 miles of transmission pipeline are part of the package of water assets now for sale. What are the potential benefits to the state and its citizens? How might the water be used now and into the future? What are the liabilities in owning these water assets? These and other questions will need to be addressed as the WWDC determines whether to add this proposal to the 2017 Omnibus Water Bill – Construction.

Water strategy

WWDC is aggressively pursuing the Governor’s “10 in 10” water strategy. This initiative seeks to construct 10 reservoirs in the next 10 years, with the start date being 2015. Four projects in the Level II planning phase are being recommended to advance from Phase I to Phase II. Level II, Phase II studies perform extensive analyses on the preferred reservoir site along with potential alternatives. Evaluations include geotechnical, cultural resources, wetland impacts, fishery benefits/impacts, wildlife impacts, social/economic factors, hydrologic modeling, preliminary designs and cost estimates, all factors that will be considered in the project’s required environmental impact statement.

The four projects recommended for more detailed study include:

Big Wind Storage Study – Fremont County,

Greybull Valley Irrigation District Storage Enlargement – Park and Big Horn counties,

Little Wind Storage Study – Fremont County, and

New Fork Lake Dam Enlargement – Sublette County.

Additionally, the Dams and Reservoir section of the Water Development Office is recommending that construction funding be appropriated for four reservoir projects that are now in the design and permitting process. Those projects are as follows:

Alkali Creek Reservoir, located in Big Horn County, will impound approximately 8,000 acre-feet of water. The proposed dam is a 110 feet high earth-fill structure. The reservoir will provide a minimum recreation/fishery pool of 2,000 acre-feet and provide 6,000 acre-feet of late season irrigation water to the lower Nowood River drainage.

Leavitt Reservoir Expansion, located in Big Horn County, will impound approximately 6,600 acre-feet of water. The new dam will replace or enlarge the existing Leavitt Reservoir, with 643 acre-feet of storage, with a 95-foot-high earth-fill dam. The reservoir will provide an additional 5,100 acre-feet of supplemental irrigation supply to the Beaver Creek and Shell Creek drainages, along with a 1,500 acre-feet minimum recreation and fishery pool.

Middle Piney Reservoir is located in Sublette County and impounds approximately 3,370 acre-feet. It is owned by the Forest Service and, due to safety of dam issues, is at risk of being decommissioned. This project will reconstruct a portion of the earth-fill dam to resolve the safety issues. WWDC intends to enter into a long-term management agreement with the Forest Service to provide water to downstream irrigators.

Big Sandy Reservoir Enlargement, located in Sublette and Sweetwater counties, will impound an additional 13,500 acre-feet of water. If maximized, the project will enlarge the existing reservoir by raising the existing spillway approximately five feet. The additional water storage will be used to improve the reliability of the irrigation supply for Eden Valley Irrigation and Drainage District.

WWDC continues to pursue the construction of water development projects across the state that provide secure and safe drinking water supplies, reliable irrigation systems and enhanced water storage so Wyoming citizens may continue to prosper during times of drought as well as enjoy the associated recreation benefits. Overall, some 65 projects and programs are on the agenda for the November 2016 WWDC meeting.

Nobody in the water business really wants to become embroiled in an interstate water lawsuit.  These types of suits tend to be very costly, create acrimony among the parties that can take years to heal and place ultimate decisions in the hands of a court that, while well-meaning and schooled in the law, can be unpredictable, confusing and ultimately take control out of the hands of the states – where it belongs. 

But, where regional water conflicts gain momentum or where drought is so severe that even going to court looks like the lesser evil, they happen.  Wyoming, in fact, started the ball rolling by filing one of the first interstate suits in the western water business – against Colorado in the early 1900s.  We complained that our neighbors to the south were using water without consideration for senior rights in Wyoming. We won. The ruling essentially said that priority of right applies across state lines when both states involved follow the prior appropriation system.

Be careful what you ask for because next time Wyoming will likely be the upstream state.

I wrote a guest piece for the Wyoming Livestock Roundup back in 2005 entitled, “When Wyoming’s Water Really Isn’t,” that, were it reprinted here, would be a good introduction to this article.  In essence, it reminds us that many states grew up along our western rivers, and all had some water uses that grew up with them – uses that became subject to interstate compacts and court decrees. So, yes, because of those old “pre-compact” type rights and uses in downstream states, not all water flowing in Wyoming’s interstate rivers is ours alone. That’s true, even though our constitution says every drop within our borders is owned by Wyoming. 

While many interstate litigation contests are instructive, the two most recent for purposes of this piece are the Nebraska v. Wyoming litigation on the North Platte River, settled in 2001, and the Montana v. Wyoming lawsuit filed in 2007, in which we are currently involved on the Tongue River. 

Let’s look at these contests from about 30,000 feet.  In the 30 years since Nebraska v. Wyoming was filed and the nine years Montana v. Wyoming has been around, the big picture is clearer than when we’re in the heat of battle.

Nebraska sued Wyoming for any number of reasons – nonregulation of tributaries, use of connected groundwater in the Torrington area and the proposed Deer Creek Dam near Glenrock come to mind. This river basin had already been under a decree since 1945, and Wyoming already had an irrigated acreage cap and access to only 25 percent of the natural flow in the Torrington area.  After 1945, the river was viewed as fully appropriated. In hindsight, were we simply using the river to what we believed to be the fullest legal extent, or were we guilty of overuse? I’m not sure it matters.

Looking back over the 15 years since settlement in 2001, under an additional consumptive use cap, a replacement water obligation for groundwater use in the Torrington area and the prospect of a February-to-April call to fill federal reservoirs in “allocation” years, how have we fared? Not bad, given what we’ve seen the following:

There have been six allocation years in the last 15. Under allocation year administration, agricultural operations have been essentially unaffected because they typically aren’t actively diverting during the call, and municipal and industrial users have devised alternate water supplies to avert curtailment;

The state has found replacement water for groundwater use in the Torrington area every year;

We have never violated the irrigated acreage or consumptive use caps;

Existing uses at the time of settlement have been protected; and

Transparency in our compliance operations has dissolved the acrimony of the lawsuit days.

A solid, mutually respectful, working relationship with Nebraska now exists.

How about the Montana v. Wyoming case? 

The first major ruling in 2011 said Wyoming wasn’t violating the compact by our appropriators changing from flood to sprinkler irrigation. Later, the Powder River was dropped from the case, and allegations of injurious groundwater use were not proven. All of these were positive for Wyoming.  However, because the prior appropriation system applies across state lines with regard to post-compact rights, we are obligated to regulate those users if a valid call is received to fill Montana’s pre-compact Tongue River Reservoir (TRR) or to meet the demands of pre-compact natural flow users in Montana. And, if we store water out of priority in our post-compact reservoirs and TRR doesn’t fill after a call, we risk having to release that stored water to Montana.

In both 2015 and 2016, we received the call to fill TRR and honored it both times. In both years, it filled after a few short weeks, resulting in only a handful of post-compact users being affected, and Wyoming retained its post-compact stored water in our part of the Tongue River Basin. 

Much like in the North Platte, appropriators are seeking lawful ways to improve their access to water to avoid being impacted by this call, from acquiring storage water to petitioning to move water rights or by entering exchange agreements to solidify their water supplies.  The working relationship among water administrators in both Wyoming and Montana now exhibits a more open exchange of information, and we are hard at work with Montana and federal natural resource agencies to improve runoff forecasting in the Tongue River Basin.  This coordination between Wyoming and Montana continues, despite the fact that the lawsuit has yet to come to closure. Active litigation or not, we still have a river to administer and users who need some predictable system under which to operate.

Returning to the title of this article, it is easy in hindsight to distinguish the bad from the good and the helpful. The bad is the real or perceived injury that launched the case, the damage caused to critical working relationships and the many drawbacks of litigation. The good and the helpful part is that when a case ends, reparations are made, and we know better the expectations for future operations. 

Wyoming has been successful in protecting the vast majority of our users from impact due to these cases, while in a few instances we have learned that regulation for the benefit of the other state is appropriate.  So we do it. After all, we were once the downstream state, and demanded, and got, the same result. We cannot act like we are the only state on a river. Law and comity demand otherwise. But we can defend our uses under that law in a way that also respects downstream lawful uses. It’s a balancing act and a relationship, which must be carefully maintained.

The Wyoming Department of Agriculture (WDA) conducts a variety of inspections within the Technical Services Division. One such activity covered under the weights and measures program is the Price Verification Inspection program.

As you have noticed, technological advances have provided the retail industries to utilize the Universal Product Code, commonly called a UPC, which uses a barcode on the package. The barcode is then read by a laser scanner at the checkout to extract the price of that item from the store’s database, and track inventory.

Handheld laser scanner units are also used to track inventory on the store shelves and to verify that the correct price is listed on the shelving for customer convenience. Many smart phones have the same program that allows the public to scan bar codes and price check items between stores online in real time.

There are many benefits to using this UPC barcode system. Individual items do not need to be separately priced, and for stores with multiple locations, one person and one computer can change the prices of any item in any of their stores.

However, a lot of the information provided to the stores may be hand entered by a person, or the store shelves and advertising may not get changed when the prices of the items being sold have been changed in the database. This human element of potential error for retailers creates public concern about price accuracy in retail stores.

Wyoming law states:

Statute 40-10-125. Misrepresentation of quantity or pricing.

(a) No person shall:

(i) Sell, offer or expose for sale less than the quantity represented;

(ii) Take more than the represented quantity when he furnishes the weight or measure by means of which the quantity is determined; or

(iii) Represent the quantity in any manner tending to mislead or deceive another person.

(b) No person shall misrepresent the price of any commodity offered, exposed or advertised for sale by weight, measure or count, nor represent the price in any matter tending to mislead or in any way deceive another person.

Therefore, WDA has the authority to conduct inspections at any retailer that has a point of sale cash register and scanner system to verify the accuracy of pricing within the store. In a nutshell, the advertised price – whether on a label on the shelf, a banner or a poster at bulk bin – is the price by which a store is required to sell the item for.

The procedures WDA uses for price verification applies to all retail stores, including food, hardware, general merchandise, drug, automotive supply, convenience and club or other stores that use UPC scanners and price-look-up codes at the check-out counter as a means for pricing. It is the goal of WDA to maintain consumer confidence in retail pricing practices and technologies, such as scanners, and provide economic benefits for consumers and the business community. The purpose of the procedure is to ensure that consumers are charged the correct price for the items they purchase.

Accuracy information, based on a percentage of errors found in a sample and the ratio of overcharges to undercharges, constitutes useful criteria for evaluating the “pricing integrity” of the store. The consumer should keep in mind that pricing errors can occur, and those errors can be both overcharges and undercharges. As with any weighing, measuring or pricing system, there is a “tolerance” applied as no system no matter how good will ever be 100 percent accurate. For a retail store to “pass” inspection the pricing integrity needs an accuracy requirement of 98 percent or higher during a single inspection.

If you, the consumer, should encounter a pricing error from the advertised price to what a scanner shows on your cash receipt, the first and best course of action is to address this immediately with the store personnel. More often than not, the store will do what they need to keep their customers happy.

We know when rural communities do well, America does well. Rural America provides us with the food we eat, the water we drink and the energy we use, not to mention a disproportionate percentage the nation’s military that keeps us safe from threat. That’s why it’s good news that in all corners of rural America, we’re seeing real, positive change take hold for the first time in the years since the Great Recession.

Today, rural populations have stabilized, meaning more and more people – especially young families – are electing to stay in rural America rather than leave for the city. Better job prospects are helping that trend. Rural counties added over 125,000 jobs in both 2014 and 2015, after job losses averaging 200,000 per year during 2008-13. As a result, the rural unemployment rate has dropped below six percent for the first time since 2007, which is impacting falling poverty rates.

From 2012-14, we saw rural child poverty fall by three percentage points, and new data indicates that 7.9 million fewer people are struggling to provide adequate food for themselves or household members than when President Obama took office. In fact, food insecurity for children is at the lowest level on record – meaning our children are able to access nutritious food in higher numbers than in the past.

Taken together, these benchmarks of progress should give us great hope for the future.

Over the past eight years, the Obama Administration, led by USDA, has vigorously invested in the rural way of life, strengthening the small towns and rural communities that so many call home.

We’ve supported the heart of the American dream, helping more than 1.2 million families buy, repair or refinance a home in rural America, creating more homeownership opportunities than any other previous seven-year period in USDA’s single-family housing program’s history.

We’ve invested in 8,350 critical community facilities like schools, libraries, hospitals and public spaces that improve the rural quality of life.

We’ve facilitated the 21st century basic infrastructure of broadband in areas that desperately needed it, enabling access to new or improved high-speed internet service for 6 million Americans who live and work in rural areas.

We’ve also set up the next generation of rural Americans by investing in a new economy focused on bio-based products and manufacturing; lifting the potential of conservation and natural resources to expand recreation and business opportunities; building a local and regional food system that supports millions of new jobs; and supporting the world’s greatest production agriculture system which has produced record exports and record profits for our nation’s farming families.

We’ve proven time and time again that an investment in rural America is a good bet. And to that point, we’ve helped unlock billions of dollars in private capital that is now flowing into rural businesses across the country.

I’ve always believed that the potential of rural America is limitless, but in these eight years, I’ve seen the proof. With the steadfast support of our partners across the nation and historic investments from President Obama and his entire Administration, I’m proud to say that change has come to our rural communities.