Print View From: "Kathy Hill" To: Date: Tuesday - September 29, 2009 4:30 PM Subject: more comments Kathy Hill Comments Set 4 Comment 1 Definition of "Findings" The conclusions of a judge, jury, or administrative tribunal regarding the underlying facts of the case under consideration. Webster's New World Law Dictionary I question the term "FINDINGS" for this section since some of them don't seem to have undergone the scrutiny of a judge, jury, or administrative tribunal. Of particular concern is the misstatement of section 2.8. 2.8 states the safe yield doctrine that allows for appropriation of Groundwater in a manner that is sustainable and results in a reasonable amount of drawdown in the Groundwater aquifer. It further states there will be impacts and capture of discharge to phreatophytes. I question whether the last sentence is really part of the safe yield doctrine which I quote: 73-5-15. Groundwater management plan. (b) "Safe yield" means the amount of groundwater that can be withdrawn from a groundwater basin over a period of time without exceeding the long-term recharge of the basin or unreasonably affecting the basin's physical and chemical integrity. FIX: Use (b) as the statement finding the safe yield document. Delete anything that is not stated in (b). Comment 2 2.11 "desire" and "assist" are not measurable terms. FIX: change wording to "The States shall incorporate monitoring data from measured Groundwater withdrawals into a publicly available database, which the State Engineers will use to manage the Available Groundwater Supply. Comments on the Snake Valley Envionmental Monitoring and Management Agreement Comment 3 General comments: It seems inappropriate to have an agreement with one specific water applicant and the State of Utah. I am concerned about the implications if the States of Utah and Nevada go to Supreme Court over disputes. The UT/NV agreement is primarily a water apportionment agreement. Given the Supreme Court's reluctance to interfere with states' right, they may determine to stay with the current water apportionment no matter how inequitable it is. At the same time, the Supreme Court may choose not to address the M & M agreement with SNWA. This would leave Utah at a severe disadvantage. If the Agreement between Utah and Nevada were a strong, equitable document, this agreement between Utah and SNWA would not be as critical. However, since the UT/NV agreement is a political agreement and does not reflect good science or an equitable apportionment of water between the states, this agreement becomes the saving grace of Snake Valley, its residents and environment. It is essential that this document has water-tight language if it is to serve the purpose intended for it - to protect Snake Valley from over appropriation of the groundwater system. Comment 4 John Bredehoeft (J. Bredehoeft, T. Durbin GROUND WATER 47,no.4:506-514) has published a paper that details the problems of monitoring a system as large as Snake Valley. It is simply impossible to adequately monitor and mitigate large areas since the impacts are delayed by distance. It is quite conceivable that impacts are irreversible by the time the impact has become apparent. Mitigation is equally ineffective over large distances. So to believe that early warning signs and minimal response actions will prevent serious harm is naïve and dangerous. The only safe way to manage the groundwater in the basin is to be conservative in available groundwater supply and only allow water removal in small increments over a period of many years. Comment 5 An agreement between Utah and SNWA leaves an enormous hole through which water can run out without interruption. This agreement should be between Utah and any party exporting any amount of water from the basin. Comment 6 Mike Styler has said that he expects this agreement to be signed in mid October. This does not allow enough time for a thoughtful review of submitted comments or time to present them to Nevada for possible renegotiation of difficult issues. The signing of the agreement needs to be postponed for a number of reasons. 1) some comments will require more serious negotiations before Utah citizens will consent to an agreement. 2) after a new draft agreement has been written, it should be presented to Utah citizens again for comment and review. 3) An agreement may establish a framework for future Supreme Court decisions should that action be necessary. Therefore, it is critical that the agreement is one we can survive with or without the mitigation component. RECITALS Comment 7 G. "desire" does not mean commitment. Use "Will" instead of "desire". The reiteration of agreeing that detrimental changes will occur appears to give permission rather than restrict the impacts. Those assertions should be deleted. FIX: Change wording in first sentence to "The Parties will establish a consultative process; define consultative process; delete ".which the Parties agree will result in changes to the existing hydrologic and biologic conditions and may potentially effect the air resources of Snake Valley and the defined Area of Interest." delete ".if necessary." Comment 8 H. Statement does not accurately reflect Utah's safe yield doctrine. FIX: use precise language: 73-5-15. Groundwater management plan. (b) "Safe yield" means the amount of groundwater that can be withdrawn from a groundwater basin over a period of time without exceeding the long-term recharge of the basin or unreasonably affecting the basin's physical and chemical integrity. Comment 9 J. "Not unreasonable" is left to individuals to define. FIX: Define what reasonable effects are. This interesting statement should be included indicating capturing ET on private property in Utah is illegal if the owner of the land considers the plants beneficial. "Root Zone" Exception In 1949, the Utah Supreme court excluded the water in soil that sustains the beneficial plant life on a landowner's property. This "root zone" water is considered part of the soil owned by the landowner and is not public property subject to appropriation. Riordan v. Westwood, 203 P.2d 922 (Utah 1949). Comment 10 2.1 - 2.3 outlines Initial, baseline, and Operational Periods. Another period is necessary - that of ongoing mitigation after operation is over. Models predict it may take hundreds or even thousands of years for the groundwater system to be recharged. SNWA's obligations need to continue until mitigation is not required any longer - until the groundwater system recovers to initial baseline stage. FIX: require mitigation and monitoring go beyond operational period until former levels of groundwater are reestablished. Comment 11 3. 1 Management Committee is comprised of an even number - a stalemate on issues that may need quick responses. A list of triggers and responses should be included here. The management committee may choose to override the responses only if there is unanimous agreement and compelling reasons for it. There is too much power in this committee, no checks or balances, and too much conflict of interest to make objective decisions. FIX: predetermined list of triggers and responses established by group of experts only to be over-ridden by compelling reasons and unanimous consent by the management committee Comment 12 4.1 Monitoring Area Description Figure 1 shows Key Areas of Biological Concern, but the map is not very comprehensive and misses acres of phreatophytic vegetation. FIX: a map showing KABC should be assembled by local people of Snake Valley and experts as a joint work. Local people know the area, experts know the types of things to be included. Comment 13 4.1.2 Monitoring does not include the possibility of reverse flow or a lessening of hydrostatic pressure that would allow intrusion of salt water in the aquifer. FIX: Reverse flow and hydrostatic pressure measurements need to be included in the monitoring of Tier II and should be monitored from the beginning of the project. Comment 14 5-6 The Operation Plan is a Christmas Wish list that asks for nothing but a "good faith effort." There is a broad range of response actions to avoid, minimize, or mitigate impacts but no penalties for causing impacts. It is easy to foresee a series of weak response actions to manage a deteriorating environment and a shell game evolves as management shifts water from one area to another. FIX: The monitoring plan needs to include thresholds and triggers that invoke specific and progressively more rigorous response actions up to and including shutting down pumping; severe monetary penalties for slow and/or ineffective responses; a framework of the plan laid out before the agreement is signed; safeguards for water rights users as well as for the environment. Comment 15 7 Data collecting and reporting is currently left to SNWA. There should be other avenues of monitoring and comparing data to ensure accuracy. It is unclear if this data will be available to the public or only to State agencies. FIX: "trust but verify" and ensure that data is available to public. Comment 16 9, Conditions set in 6.8 of the UT/NV agreement to allow UT to present relevant information during the hearing of SNWA applications need to be in place also for change applications. Sufficient time also needs to be given to run models and get baseline data before change is granted. Comment 17 10. This needs to be a requirement for any party seeking to export water from the basin, regardless of the amount. If the water goes into a pipeline, the agreement needs to be binding on them. Comment 18 12. This is an unfunded mandate. Funds need to be guaranteed by SNWA and the Utah legislature for the duration of the agreement. Comment 19 13. In a dispute, the Board must have the authority to make a decision that is binding on both parties. Otherwise, the process can be stalemated for an indefinite and prolonged amount of time. FIX: Decision by the Board needs to be binding. Disagreement with ruling can be brought before the State Engineer. Until the State Engineer makes a ruling, the Board's decision needs to remain in effect. Comment 20 Biological Monitoring 1.1 Map needs to be redone as it does not cover all the KABC. When the TWG makes recommendations to the Management Committee, the Management Committee should only be released from the recommendations of the TWG by producing compelling evidence to the contrary. Comment 21 Hydrologic Monitoring 1.1 monitoring sites should have recommendations by local Snake Valley citizens. Sites should be included in recharge areas where headwaters are found. Trout Unlimited has published findings that indicate headwaters can be affected by groundwater withdrawals. Comment 22 Air Quality monitoring 1.1 One air quality monitoring station is not adequate for the size of Snake Valley. The south end of Snake Valley had sandy soil, while the northern end is primarily clay soil. In the bottomlands where water collects, the soil is more easily carried by wind than in other areas. We have already seen deterioration of ground cover and increased dust storms to the drought, particularly in the bottomlands. Air quality experts should consult with local citizens to determine the appropriate placing and quantities of monitoring stations. Finally, it is with great trepidation that I submit these final comments. I do not believe the monitoring and management will prevent massive destruction due to the de-watering of Snake Valley if Nevada takes the water allocated to them as their share of the aquifer. The only thing that will protect Snake Valley is an agreement that allocates the water based on a realistic, sustainable amount. This agreement in its current form does not provide the protection Snake Valley needs.