TECHNICAL MEMORANDUM TO: WWDC DATE: May 12, 2010 FROM: MWH REFERENCE: Wind-Bighorn Basin Plan SUBJECT: Task 6A–Issues Affecting Future Water Use Opportunities This memorandum discusses known environmental processes, permits and other related issues associated with future water use opportunities within the Wind-Bighorn Basin. This memorandum fulfills the reporting requirements for Task 6A of the consultant scope of work for the Wind-Bighorn Basin Plan Update (Basin Plan Update). Contents Section 1 – Introduction ......................................................................................................................... 1 Section 2 –Water Management Issues .................................................................................................. 2 Issues Related to Tribal Compacts and Settlements .......................................................................... 2 Issues Related to Federal Projects ..................................................................................................... 3 Issues Related to Water Quality ......................................................................................................... 3 Section 3– Compact Requirements........................................................................................................ 3 Section 4– Funding Agency Requirements-WWDC ............................................................................... 4 Section 5 – Federal Legislation and Regional Laws ............................................................................... 5 NEPA- The National Environmental Policy Act ................................................................................... 5 Section 404 Permit ............................................................................................................................. 5 ESA - Endangered Species Act .......................................................................................................... 5 Fish and Wildlife Coordination Act ...................................................................................................... 6 Cultural Resources ............................................................................................................................. 6 CWA - Clean Water Act ...................................................................................................................... 9 SDWA - Safe Drinking Water Act ....................................................................................................... 9 Agency Requirements ........................................................................................................................ 9 Wild and Scenic Rivers Act ................................................................................................................ 9 Section 6 – Summary............................................................................................................................. 9 Section 7 – References ........................................................................................................................ 10 Appendix A .......................................................................................................................................... 11 Appendix B .......................................................................................................................................... 14 Section 1 – Introduction There are many legal requirements and regulatory and institutional issues that may influence future water management strategies and water use opportunities in the Wind-Bighorn Basin (Basin). These 1 include compact requirements, federal legislation such as the Endangered Species Act, and water quality issues and regulations which pertain to the Safe Drinking Water Act and the Clean Water Act. Water rights administration is also an important issue. Water rights are described in detail in Technical Memorandum 3H—Water Law and Administration. The Wind River Indian Reservation and its associated water rights and regulations are also an important factor for consideration in future water management. The agendas of various groups within the Basin can create water management issues between the groups themselves. For example, there have been conflicts between ranchers, governmental agencies, environmental groups and outdoor recreation groups for several decades. There have been efforts to restrict grazing on public land or to establish minimum stream flows for the purpose of protecting and enhancing fisheries. Also, there have been more stringent limitations on Total Dissolved Solids and Fecal Coliform bacteria concentrations permitted in water bodies. Issues such as these increase the complexity of managing land and water resources within the Basin. Potential future storage and conveyance projects are important for meeting Wyoming’s future water needs. Required permits and regulatory processes that may be associated with future water use opportunities are summarized herein. Section 2 –Water Management Issues Several Basin Advisory Group (BAG) meetings were held during the Basin Plan Update. During these meetings, basin-wide issues and strategies were identified and discussed. A listing of the issues that have been identified to date can be found in Technical Memorandum 3G- BAG Issues. Key issues identified by the BAG include water use, water development, constraints of existing compacts, constraints of Tribal settlements, federal project contract limitations, and water quality issues. These issues are expanded upon in the sections below. Issues Related to Tribal Compacts and Settlements On the Wind River Indian Reservation, Tribal surface water rights are the oldest in the Basin and date back to 1868. Legal proceedings to adjudicate the water within the Bighorn Basin began in 1977 between the State of Wyoming and the Shoshone and Arapaho Tribes. The courts awarded the Tribes the right to a total of 500,000 acre-feet of water from the Wind River system, with approximately 209,000 acre-feet for dedicated future irrigation use within the Reservation. A full description of the legal proceedings and decisions can be found in Technical Memorandum 3H—Water Law and Administration. The State would like to ensure that the Tribes "futures" awards develops in a manner that remains consistent with the court’s interpretation of uses and places of use while minimizing injury to junior water right holders. It would also like to see rehabilitation projects to improve the distribution and efficiency of water delivery to Tribal lands (WWDC 2003). The impact of full development of Tribal reserved water rights is presented in Technical Memorandum 4C – Surface Water Availability. One issue within the Basin that is nearing resolution is the Reserved Water Rights Compact in Montana. The compact allocates a portion of the Bighorn River flow to the Crow Tribe. Litigation concerning water rights of the Crow Tribe on their Montana Reservation began in 1975. In 1985, the United States, the Tribe and the State of Montana entered into negotiations aimed at settling the Tribe's water rights claims. In 1999, the Crow Tribe and the State of Montana reached an agreement on a compact providing for an allocation of water for the Tribe, subordination of that right to existing state based water uses, water rights administration, water marketing, and dispute resolution mechanisms. The federal government did not approve or sign the compact. On September 22, 2009, the Crow Tribe Water Rights Settlement Act of 2009 (H.R. 3563) was proposed by the U.S. Bureau of Reclamation. The settlement would recognize a Tribal water right to 500,000 acre-feet per year of water from the flow of the Bighorn River, as well as up to 300,000 acre-feet of water per year from Bighorn Lake (150,000 2 acre-feet in all years and an additional 150,000 acre-feet in dry years when natural flow is short). The concession on the part of the Crow Tribe involves “shortage sharing” of their senior natural flow right with non-Indians (Connor 2009). No analysis of the impacts, if any, of the Crow Tribe settlement was performed as part of the Basin Plan Update. Issues Related to Federal Projects Several federal water projects within the Basin are part of the Pick-Sloan Missouri Basin Program Project. There are certain restrictions on how the water stored in the facilities can be obtained and used, which can vary from project to project. Repayment of Pick-Sloan Missouri Basin Program facilities are generally made by irrigation districts, which are typically funded through taxes on the district properties. These taxes help to repay the federal government, which provided funds to build and maintain the facilities. A more complete description of this project and the federal storage reservoirs can be found in Technical Memorandum 3F—Storage. Issues Related to Water Quality The State of Wyoming has empowered the Water Quality Division of the Department of Environmental Quality with the authority to permit and enforce surface water and groundwater standards and regulations throughout the state. The Wind River Indian Reservation has a similar department of environmental quality. State and tribal programs ensure that all new water projects comply with federal water quality regulations. Water quality issues and locations of impaired streams and lakes within the Basin are detailed in Technical Memorandum 6B - Water Quality. Waters are declared “impaired” when they fail to support their designated uses after full