Wyoming governor Dave Freudenthal has signed the Platte River Recovery Implementation Program, according to the Jackson Hole Star Tribune. From the article, "Gov. Dave Freudenthal has 'reluctantly' signed his name to the Platte River Recovery Implementation Program. He joins Nebraska Gov. Dave Heineman and Colorado Gov. Bill Owens, who already embraced the controversial plan to accommodate threatened and endangered species in Nebraska and growing demand for water in the three states. In Wyoming, the program calls for expansion of Pathfinder Reservoir southwest of Casper and a contribution of $14.5 million from the state. Some water users continue to oppose the deal. The agreement allocates 35,000 acre feet space in the expanded Pathfinder Reservoir to downstream wildlife habitat in Nebraska, home to the federally protected whooping crane, piping plover, least tern and pallid sturgeon. It also guarantees 20,000 acre feet for lease to Wyoming cities and towns. The alternative is potentially stricter and less predictable regulation of all Platte River water users under the federal Endangered Species Act. Freudenthal, who was not governor when the water negotiations began a decade ago, said 'there are no good choices' but that the recovery program is the 'only hope.'"
Meanwhile some in Wyoming feel that the agreement effectively changes the doctrine of prior allocation - the method for allocating water in the western U.S. From the article, "A recent legal review of the multistate Platte River Recovery Implementation Program[base ']s components indicates the pact could mean a departure from how Wyoming's water law has been administered. The analysis, undertaken by Karen Budd Falen and Hertha Lund of the Budd-Falen Law Offices, said the program changes current water law from that of prior appropriation to one in which federally protected species in Nebraska would have the first right to Wyoming's water. Budd Falen and Lund maintain that the program takes water from the historic prior appropriation system into a whole new realm -- one in which a three-state governance committee will oversee water issues, 'giving away state control of Wyoming water.' According to the legal analysis, 'The program changes the current water law of prior appropriation to one in which Endangered Species Act-listed species in Nebraska have the first right to Wyoming's water.' The attorneys maintain that the program will become a mandate overlay on all state water issues."
Some are already rattling their lawsuit sabers, according to the Jackson Hole Star Tribune. From the article, "The state's decision to enter an agreement with Colorado and Nebraska over Platte River Basin water will almost certainly result in litigation, the spokesman for a Wyoming water users group said. Joe Glode, president of the Upper North Platte Water Users Association, said the Platte River Recovery Implementation Program offers no assurances that his members' water rights will be protected...
"Glode is concerned that the water users he represents upstream from Pathfinder Reservoir will lose out in dry years because they have no place to store water. 'You've created two new water rights in the state of Wyoming for which there's no additional water,' said Glode, who lives in Saratoga. Gov. Dave Freudenthal, who signed the agreement, said the state has done everything in its power to assure that the upstream water rights will be honored. The state attorney general and the state engineer both have issued statements intended to sooth the groups' concerns. But Freudenthal said he also had to consider the potential harm caused by rejecting the agreement, including the possibility of intense federal scrutiny on all activity in the Platte River Basin under the Endangered Species Act...
"The Platte's two branches start in the Colorado mountains, flow through Wyoming and Colorado, and merge in Nebraska. With its 15 major dams and reservoirs, the river supplies water to about 3.5 million people, irrigates farms, generates electricity through hydropower plants and provides recreation and wildlife habitat. The Platte River in central Nebraska also is a major stop for migrating whooping cranes and home to the piping plover, least tern and pallid sturgeon. They're all considered threatened or endangered species. Biologists estimate that whooping cranes numbered from 500 to 1,300 in the area in the mid-1800s, plummeted to fewer than 20 in the 1940s and rebounded to 215 by last year. By releasing additional water into the river system, scientists hope to recreate ideal habitat for all four species. Intensive testing will be needed to determine if the efforts work. In the meantime, irrigators in Wyoming appear poised to fight for their water in court. Glode said the Platte River Recovery Implementation Program lacks concrete assurances that the rights of upstream water users will be protected."
Of course steering around prior allocation has happened before, notably with the Colorado River Compact of 1922. That agreement divided the Colorado between upper and lower basin states without regard to prior allocation.
Category: Colorado Water