Print View From: Annette Garland To: Date: Tuesday - September 29, 2009 11:10 AM Subject: Comments on the Utah-Nevada Snake Valley Draft Agreement September 28, 2009 Annette Garland Callao 225 Pony Express Rd. Callao via Wendover, Utah 84083 I am commenting on the proposed Utah-Nevada Snake Valley Groundwater Draft Agreement. While I appreciate the complexities of this agreement, I feel that it is fatally flawed in many areas and should not be signed until these flaws are corrected. *In Findings:* *2.4 “…the States acknowledge that such information is insufficient to determine with precision the Available Groundwater Supply.” * *Use of Inflated Available Groundwater Figure:* The figure of 132,000 afy is the highest figure that I have seen attributed to the available groundwater in Snake Valley. The BARCASS itself says that this figure is probably too high and has only a 67% confidence rate in its accuracy. Therefore, when dividing up the water, this agreement has started with an unrealistically high figure. A more moderate figure should have been used as a reasonable estimate. It is most irresponsible for our Utah officials to settle for this estimate. If Utah agrees to this figure, we will be giving up any rights later on to refute it. *The agreement must use a lower and more reliable estimate of the available groundwater in Snake Valley.* *2.6 “Recharge of the Groundwater supply in the Snake Valley Groundwater Basin occurs primarily within Nevada. Groundwater discharge and Consumptive use has historically occurred primarily in Utah.”* *50%-50% Division:* This document declares that Nevada is entitled to 50% of the water in Snake Valley’s groundwater supply. While I’m sure Southern Nevada Water Authority would like for all of us to believe this, western water law does not support this “entitlement”. Western water law has always favored the discharge areas- not the recharge areas. Historically, 80% or more of the groundwater in Snake Valley has been used in Utah. Also, over 80% of the land area under the aquifer is in Utah. * In fact, the Supreme Court has weighed in on equitable apportionment. In Colorado v. New Mexico, (1982) , it was ruled that equitable apportionment usually favors current users and economies that are already using the water. In equitable apportionment the headwaters or recharge location is irrelevant. 1* In *Nebraska v. Wyoming* ( and reaffirmed in *Vermejo II*) it is stated that prior appropriations will be the guiding principle of water distribution. The character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses downstream and the damages to respective state interests if limitations are imposed. 2 By saying that Nevada is entitled to 50% of the water because Nevada mountains get 60% of the recharge, the agreement is, in fact, rewriting western water law. I dare say that many places in the west use water where there is no recharge or head waters-including Las Vegas. This Finding also does not take into account the recharge from the mountain ranges on the eastern edge of the Snake Valley basin. The Fish and House Ranges are both over 9,000. *Therefore, I believe that a good agreement must adjust this figure to reflect historical consumptive use and the land area beneath the aquifer.* *At present, there is no surplus water in Snake Valley on either side of the line.* *2. 8 “…Utah generally allows for the appropriation of Groundwater in a manner that is sustainable and results in a reasonable amount of drawdown in the ground water aquifer.”* *Unknown drawdowns:* How much drawdown is “reasonable”? Stefan Kirby and Hugh Hurlow say that the drawdown is likely to be as much as 100 feet near Garrison, Utah.3 This is not acceptable. John Bredehoeft and Tim Durbin’s model shows that there could be a very large area where the drawdown exceeds 700 ft., and equilibrium to the Carbonate Aquifer may not be reached for 2000 years. 4 This does not protect water rights, nor does it protect the environmental integrity of Snake Valley. Interbasin transfers are often controversial due to their size, their costs, and their environmental impacts. This transfer will have significant environmental impacts on Snake Valley’s aquatic ecosystem. The wetlands, seeps, and springs in Snake Valley are dependent on a water system that the BARCASS says is in equilibrium. Because of the existing pumping and the drought, we are already beginning to see the effects of an unbalanced water system. Only under the most severe situations should water be stripped from a basin-of-origin and be moved to another basin. This is not that situation. *The agreement should protect Snake Valley from drawdowns that would destroy the phreatophytic environments of the valley. The mining of water from Snake Valley is not acceptable.* *6.1 **“…that any owner of an Existing Permitted Use may notify SNWA of a claim to an Adverse Impact to its water right due to Groundwater withdrawal by SNWA….”* *Go to SNWA first?:* This problem-solving strategy is repugnant to most Snake Valley residents. SNWA has been an arrogant adversary for more than 5 years. The example of Kennecott Corporation working with neighboring citizens is explained as the rationale for this Finding. SNWA is not Kennecott. Kennecott Corporation has a vested interest in protecting its Utah neighbors. SNWA has no such interest. Utah officials are abdicating their responsibility to the citizens of Utah by not initially representing us in effect arbitrations. *SNWA must not be our first defense against pumping impacts. We do not choose to live dependent on SNWA for our sustenance.* *6.2 **“…Permitted Use(r) may notify SNWA that the permit owner claims and Adverse Impact and shall provide any pertinent information that supports their claim of Adverse Impact….”* *Burden-of -Proof:* SNWA should not be able to determine what is and what is not an adverse impact. Also, the burden- of -proof of an adverse impact should be the responsibility of SNWA*. *Farmers and ranchers are hard working people who do not have time to fill out forms and jump through hoops. *Whatever the venue of appeal, SNWA should be required to provide the burden- of -proof that its pumping did not cause the adverse impact. * *Public Law 108-424 Section 301 (e) (3)* *Utah-Nevada Agreement:* The Lincoln County Lands Act says that “prior to any transbasin diversion from Groundwater Basin within Utah and Nevada the states shall reach an agreement regarding the division of water resources of those interstate groundwater flow systems”. The proposed agreement does not deal with the entire flow system, except to charge 20,000 afy to Snake Valley for Fish Springs. The agreement does not address the SNWA pumping that will occur in Spring Valley, and it doesn’t address the water that will flow to the Great Salt Lake. I have heard this figure to be at least 10,000 afy. There is not a time requirement for an agreement mandated in the LCA. We don’t have to be in a hurry to sign this agreement. *This Agreement should not be signed until the entire flow systems of both states are addressed.* * Snake Valley Environmental Monitoring and Management Agreement* *Management Committee* *3.1.1 **Creation and Purpose: “The Parties shall create a Management Committee, to include two executive principals from each of the Parties…* *The Utah representative to the Management Committee shall coordinate efforts with the Snake Valley Aquifer Research Team.”* This agreement plainly implies, but does not state, that the sole decision-making body of this Operation Plan is made up of 2 executives from SNWA and probably 2 of the Utah officials that negotiated this agreement. It is unclear how the Management Committee would “coordinate efforts” with the Snake Valley Research Team. There is also no mention of the Snake Valley Advisory Council also mandated in Utah’s HB120. It appears that the citizens of Snake Valley, who will be most affected by the pumping, really have no inpute into this Operation Plan. So far, the agreement favors Nevada (SNWA) in all cases. *Disputes Review Board*: The dispute resolution process under the Disputes Review Board is also a problem. This Board includes 1 member of SNWA and 1 from Utah and 1 member agreed upon by the first two. *13. “…Although the recommendations of the Board should carry great weight for both Utah and SNWA, they are not binding on either party…”* It would appear SNWA could stall any action or ruling by the Management Committee while the pumping proceeds. This agreement is not enforceable. *A good agreement must be enforceable, and SNWA or other entities that would inherit their water rights should not be able to control the decision-making process.* *The Process of the Utah-Nevada Agreement:* The process of writing this agreement has been flawed. It has taken 4 years of secret negotiations to produce this document. The only inpute taken from the citizens of Snake Valley has been given by way of Dean Baker. While I believe he honorably participated in the negotiations, I do not believe his views were allowed to shape very much of the agreement. It is obvious that SNWA was very influential. The Utah negotiators have asked the citizens to trust them, but they have not been forthcoming with any of the documents that would shed light on these negotiations. Only after receiving a GRAMA request appeal have Utah officials promised to reveal the details of the negotiations. This is a false concession as we will still not see these documents before the comment period is over. The Utah DNR held 4 public information meetings within a week of the release of the agreement- all at times that were either inconvenient or too soon to be published in the local newspapers. The recent meeting with the Governor and the Advisory Council was rushed. The signing is being rushed. Utah citizens want to know why, and our “representatives” are not answering that question*. *It then becomes a question of trust. It’s foolish to trust without some knowledge. *The public has overwhelmingly rejected this agreement and the rush to sign it. The citizens of Utah have spoken and still Utah officials are pushing ahead to sign the agreement. The negotiations have taken 4 years to produce a document that won’t be used for 10 years. Therefore it must not be signed 60 days from its release. If and when there is a good agreement, the governors of both states should be politically responsible and sign their names to that agreement.* References: 1. *Colorado v. New Mexico*, 459 U.S. 176 183 187(1982). 1. *Nebraska v. Wyoming* 515 U.S. 1. *Hydrologic Setting of the Snake Valley Hydrologic Basin, Millard County, Utah, and White Pine and Lincoln Counties, Nevada—Implications for Possible Effects of Proposed Water Wells* by Stefan Kirby and Hugh Hurlow. Excerpt from the *Report of Investigation 254, Utah Geological Survey*. 1. *Ground Water Development- The Time to Full Capture Problem * by J. Bredehoeft and T. Durbin. Groundwater 47, no. 4: 511.** * * * * * * -- ************************************** Cecil C.and Annette H.Garland Rafter Lazy C Ranch Callao 225 Pony Express Road Callao, Utah via Wendover 84083 435-693-3132 **************************************