I. INTRODUCTION
The Amended Bear River Compact makes provision
in Article IV for the administration of the waters in the Lower Division
of the Bear River at times when the Commission finds that a water emergency
exists. More specifically, the Compact provides in Article IV.A.3. as follows:
When the flow of water across the Idaho-Utah
boundary line is insufficient to satisfy water rights in Utah, covering
water applied to beneficial use prior to January 1, 1976, any water user
in Utah may file a petition with the Commission alleging that by reason
of diversions in Idaho he is being deprived of water to which he is justly
entitled, and that by reason thereof, a water emergency exists, and requesting
distribution of water under the direction of the Commission. If the Commission
finds a water emergency exists, it shall put into effect water delivery
schedules based on priority of rights and prepared by the Commission without
regard to the boundary line for all or any part of the Division, and during
such emergency, water shall be delivered in accordance with such schedules
by the State official charged with the administration of public waters.
These Procedures for Lower Division Water Delivery govern Commission action upon petitions filed pursuant to Article IV.A.3 of the Compact; provide the process to be followed in the declaration of a water emergency in the Lower Division; and describe how the waters in the Lower Division will be administered once a water emergency has been declared. The Procedures also provide direction necessary for the Commission to be prepared to declare a water emergency in dry years, and direction on how water delivery schedules are proposed, adopted and modified.
Prior to adopting these Procedures, the Commission
received comment from representatives of the signatory States, and provided
public notice and held public hearings in the affected areas within Idaho
and Utah.
II. AUTHORITY
These Procedures are adopted pursuant to Article
III.C.1 and Article IV.A.3 of the Amended Bear River Compact approved December
22, 1978, by the Commissioners from Idaho, Utah and Wyoming, and subsequently
ratified by the legislatures of the three States and consented to by the
U.S. Congress.
III. DEFINITIONS
The following definitions apply only to the application
of these Procedures and are not to be interpreted as definitions for other
administration of the Bear River Compact or other procedures adopted by
the Bear River Commission.
A. "Commission" means the Bear River Commission
organized pursuant to Article III of the Amended Bear River Compact.
B. "Compact" means the Bear River Compact, as
amended on December 22, 1978.
C. The term "accounting method" means an interstate
river diversion accounting procedure together with appropriate criteria,
both approved by the Commission, which when used by either Idaho or Utah
will yield similar results for each diversion on the Bear River below Bear
Lake.
D. "Direct flow" means all water flowing in a
natural water course except water released from storage or imported from
a source other than the Bear River watershed.
E. "Engineer-Manager" means an employee or contract
employee of the Commission designated to act in accordance with these Procedures.
F. "Groundwater" means any water withdrawn from wells at a rate in excess of 0.10 cfs within the Lower Division.
G. "Lower Division" means the portion of the Bear
River between Stewart Dam and Great Salt Lake, including Bear Lake and
its tributary drainage.
H. "River Commissioner" (not to be confused with
members of the Bear River Commission itself) means the duly appointed State
official authorized to distribute both direct flow and storage water in
accordance with valid rights and storage allocations from Bear River or
its tributaries. The term "river commissioner" includes the officials called
"watermasters" in the State of Idaho.
I. "State official" means the director of the
Idaho Department of Water Resources or a designee, the Utah State Engineer
or a designee, and the Wyoming State Engineer or a designee.
J. "Stored water" means water stored in a reservoir
in the Lower Division for release for beneficial use at a later time or
water that has been released from storage into a natural channel for conveyance
to a point of rediversion under the supervision of a river commissioner.
K. "Water delivery schedule" means a list adopted
by the Commission of water rights, ordered by priority, and established
in accordance with the laws of the respective States without regard to
state boundaries and deliverable against junior priority rights.
L. "Water emergency" means any period of time
that the Commission has determined in accordance with these Procedures
that a water user in Utah, by reason of diversions in Idaho, is being deprived
of water to which the water user is justly entitled.
M. "Water user" means a person, corporation or
other entity having a right to divert water from the Bear River in the
Lower Division for beneficial use.
IV. PREPARATION
A. General Preparation
The Commission recognizes that if adequate preparation
is not made prior to receiving a petition requesting the declaration of
a water emergency, then the Commission may not be prepared to respond to
the petition in a timely and appropriate manner. In particular, water availability
data are required to determine if the declaration of a water emergency
is justified. Because storage water is an important component to the river
flows in the Lower Division, the proper allocation and accounting of storage
water usage is vital to Lower Division water administration.
An accounting method pursuant to approved delivery
schedule(s) will be used to account for the delivery of direct flow and
stored water in Idaho and Utah. This method will also account for depletions
resulting from the diversion of groundwater. The method has been approved
by the Commission (see Appendix B).
The accounting method must be operational in advance
of the declaration of a water emergency for the potential administration
by the Commission to be effective. Therefore, Idaho and Utah State officials
will maintain computer models in each state consistent with the accounting
method so that the method can be utilized by either state and the results
submitted to the Commission or its Engineer-Manager within three calendar
days after receiving the necessary water availability data in any year
that the Commission has determined that a declaration of a water emergency
could occur.
B. Preparation Procedures
Preparation for potential Lower Division administration
requires cooperation by State water resource personnel, river commissioners,
PacifiCorp (dba Utah Power) and the water users in gathering necessary
water availability data. In any year that the Commission determines that
water supply conditions are such that a declaration of a water emergency
could occur, the Commission, through its Engineer-Manager, will do the
following:
1. The Engineer-Manager will notify the State
officials that an emergency declaration could occur. The State officials
will in turn immediately notify appropriate river commissioners or other
persons or entities responsible for water distribution of the possibility
that such a declaration could occur, and such commissioners or persons
or entities shall collect and assemble and distribute to the State officials
and the Engineer-Manager the water availability data necessary for the
accounting method.
2. The Engineer-Manager will request the Idaho
and Utah State officials to confirm to the Engineer-Manager that deliveries
from the Bear River will be administered and all tributaries will be administered
to the extent appropriate in Idaho and Utah during the upcoming irrigation
season. Data on the impact of groundwater depletions on direct flow will
be requested by the Engineer-Manager from each state. Any changes to the
Procedures or to the delivery schedules based on these data will be made
according to Section IX.
3. The Engineer-Manager will request Utah Power
to notify the State officials of stored water allocations for the water
users holding contracts with Utah Power for use of stored water.
4. The Engineer-Manager will monitor river flow
and diversion data to ensure the water availability data necessary for
the accounting method is readily accessible in the event a petition requesting
the declaration of a water emergency is properly filed with the Commission.
V. RECEIPT OF PETITIONS
A. General Filing Provisions
The Commission recognizes that the filing of a
petition and any subsequent administration will require considerable effort
and have significant impact upon water users. In order to safeguard against
the taking of action upon petitions that lack merit, the Commission shall
employ the following process for reviewing and acting upon filed petitions.
The Commission recognizes its responsibility to act expeditiously on meritorious
petitions in order to provide timely administration. The following criteria
for filing and reviewing a petition are established to meet these varied
objectives.
B. Minimum Filing Requirements
In order for a petition to be accepted by the
Commission the petition must:
1. be filed on a form provided by the Commission
(see Appendix A appended to these Procedures);
2. be filed with the Commission at the Commission's
office by mail, electronic facsimile or in person, during regular office
hours;
3. provide evidence that the water user filing
the petition is entitled to the use of water from the Bear River main stem
in the State of Utah and stating that he is not receiving water to which
he is justly entitled; and
4. provide evidence the petitioner has contacted
the State official in Utah, the State official in Utah has contacted the
State official in Idaho, and the petitioner has been advised of the administration
that is occurring.
C. Engineer-Manager's Initial Review
1. Upon receipt of a proper petition, the Engineer-Manager
shall review the petition to determine that the criteria and information
required by the Commission has been set forth satisfactorily in the petition,
and the Engineer-Manager will attempt to verify the information contained
therein.
2. Upon determination by the Engineer-Manager
that the petition satisfies all of the criteria set forth in this Section
V, he shall immediately notify the members of the Commission that the criteria
for filing a petition requesting the declaration of a water emergency have
been met. If the Engineer-Manager determines that the petition does not
satisfy all of the required criteria, the petitioner shall be immediately
notified so that corrections or additional information can be supplied.
The Engineer-Manager shall make a written recommendation to the Commission
regarding Commission action for any properly-filed petition. Within three
calendar days of the receipt of a petition, the Engineer-Manager will notify
the members of the Commission, State officials and the petitioner of the
receipt of the petition and the recommendations made upon the petition.
3. Nothing herein shall be deemed to prevent the
Commission, upon its own motion, from declaring a water emergency pursuant
to Article IV.B of the Compact. Nevertheless, the Commission shall not
declare such an emergency without first notifying State officials and receiving
appropriate input from them.
4. Multiple petitions will, to the extent possible,
be consolidated and considered together by the Commission.
VI. COMMISSION ACTION ON PETITIONS
A. Convening of Special Commission Meeting
Upon notice from the Engineer-Manager that a proper
petition has been filed with the Commission requesting that a water emergency
in the Lower Division be declared, the following procedures shall apply:
1. Within seven calendar days of the initial receipt
of the petition from the Engineer-Manager, the Chairman of the Commission
will convene a special meeting of the Commission to consider the petition.
2. In the event that the Chairman is unavailable,
the Vice-Chairman will have full authority to convene and chair the meeting.
3. The ordinary ten-day notice requirement for
Commission meetings provided for in the Commission bylaws is hereby deemed
waived by the Commission members, in accordance with the bylaw provisions,
for the purpose of acting upon petitions regarding water emergency declarations.
4. The required quorum to take action on a petition
will be as set forth in Article III.A of the Compact. In order to expedite
the consideration of a petition, the Commission meeting may be conducted
via telephone conference.
5. At least a two-thirds majority vote by Commission
members present is required for the Commission to take action on a petition.
6. If feasible under the circumstances, the petitioner
and State officials may be invited to be at the meeting on the petition
and present any additional appropriate information.
B. Actions of the Commission on Petitions
to Declare a Water Emergency
The following actions may be taken by the Commission,
once convened, to review a petition requesting the declaration of a water
emergency:
1. The Commission may declare the existence of
a water emergency in the Lower Division pursuant to Article IV.A.3
of the Compact upon a determination that the petitioner is being deprived
of water to which the water user is justly entitled because of diversions
in Idaho. If a water emergency is declared, the Commission will direct
the Engineer-Manager to monitor water administration by the State officials
in the Lower Division under the adopted delivery schedules, as well as
provide any appropriate instructions to the Engineer-Manager specific to
the administration under the declared water emergency.
2. The Commission may determine the petitioner
has provided insufficient evidence to support the request for declaration
of a water emergency and, therefore, notify the petitioner that the Commission
will not take action without further documentation.
3. The Commission may determine that, through
no fault of the petitioner, insufficient information is available to the
Commission to make a full determination on the petition. The Commission
may direct the Commission staff, or request State officials, to gather
the additional information required. The Commission shall set a time to
reconvene its consideration of the petition.
4. The Commission may deny the petition upon a
determination a water emergency in the Lower Division, as provided for
in the Compact, does not exist because it has not been established to the
satisfaction of the Commission that the petitioner is being deprived of
water to which the petitioner is justly entitled because of diversions
in Idaho.
5. The petitioner will be notified in writing
of action relating to the petition within three calendar days of the Commission's
action. Notification will be by certified mail to the address of record
on the petition. The Commission will also provide public notice of the
Commission's action.
6. Action of the Commission on a petition for
declaration of a water emergency may be subject to a request for reconsideration
by the Commission from a State official or an aggrieved water user. Requests
for reconsideration must be received in the Commission office within seven
calendar days of the Commission's actions. Following the receipt of a request
for reconsideration, the Engineer-Manager will advise the Chairman and
the Chairman will schedule a meeting within seven calendar days of the
date of the request for reconsideration. At the meeting, the Commission
may hear from the petitioner, State officials, or affected water users
present and then will expeditiously render its opinion with respect to
the request for reconsideration. Within three calendar days, all participating
parties will be notified in writing of the Commission's decision.
C. Termination or Modification of Water Emergency Declaration
An affected water user or State official may provide information to
the Commission to support termination or modification of the water emergency
declaration. Based on such information, an affected
water user may file a written request with the Commission to terminate
or modify the water emergency declaration and the Commission will act in
substantial accordance with the time lines and procedures set forth under
Section A and B above. The Commission can also terminate or modify the
declaration of a water emergency on its own volition. Unless terminated
sooner or extended by the Commission, water emergencies shall terminate
on September 30th of each year.
VII. RIVER ADMINISTRATION
Upon the declaration of a water emergency, the
Idaho and Utah State officials through the river commissioners will share,
on at least a weekly basis, all available stream flow and diversion measurements
necessary for administration of river flows by the Commission pursuant
to approved delivery schedule(s). The accounting and administration will
be performed as often as reasonably feasible and necessary throughout the
irrigation season given the availability of the necessary stream flow and
diversion measurement data, as well as information about impacts from diverted
groundwater. The river commissioners will, under the supervision of the
responsible State officials, adjust diversions in their respective States
to deliver all direct flow rights on the Commission adopted delivery schedule
according to priority of right, without regard to state line, and also
deliver all stored water in accordance with the allocations certified by
Utah Power, with accounting made for depletions in the flow of the Bear
River resulting from groundwater use. A report showing water delivery without
regard to state line in accordance with approved water delivery schedule(s)
shall be sent each week by State officials from both Idaho and Utah to
the Engineer-Manager for review. If the review suggests that delivery is
not occurring correctly, the Engineer-Manager shall promptly notify the
appropriate State official who shall direct the river commissioner to deliver
in accordance with the adopted water delivery schedule.
VIII. WATER DELIVERY SCHEDULES
A. General Provisions
The Commission will adopt one or more water delivery
schedules as provided in Article IV.D of the Compact. Water delivery schedule(s)
are appended to these Procedures as included in Appendix C.
B. Modifications to Accounting Method or
Water Delivery Schedules
Modifications to the accounting method, the existing
water delivery schedules, or the adoption of additional new water delivery
schedules, will occur as follows:
1. The addition of water delivery schedules or
the modification of adopted schedules or of the accounting method will
be in accordance with the provisions of Section IX of these Procedures.
2. The accounting method and adopted delivery
schedules will remain valid and in force until formally amended by the
Commission.
3. An exception shall exist for minor modifications
to the accounting method or a water delivery schedule which will not materially
affect the accounting method or the water delivery schedule and may occur
as follows:
a. all minor modifications to the accounting method
or a water delivery schedule must be reviewed by the Operations Committee
at a special or regular meeting;
b. the notice and hearing requirements for amending
the accounting method or a water delivery schedule as provided under Section
IX of these Procedures shall not apply;
c. if the Operations Committee finds the proposed modifications are minor and will not alter the intent of the accounting method or delivery schedule, and will not materially affect water users, then by unanimous vote of the Operations Committee the accounting method or delivery schedule will be modified; and
d. if there is not a unanimous vote of the Operations
Committee, then the modifications shall not be approved until they have
been formally adopted by the Commission as provided for in Section IX of
these Procedures.
IX. AMENDMENTS TO THESE PROCEDURES OR TO THE
DELIVERY SCHEDULES
A. General
Upon adoption, these Procedures will remain in
force until modified or rescinded by the Commission. Copies of the Procedures,
then in effect, will be kept on file with the Commission, and with the
signatory States, for public inspection.
B. Amendment Procedure
It is anticipated that amendments and additions
to these Procedures, and to the delivery schedules, will be required as
experience is gained in administering the Lower Division diversions. The
following procedures apply when making such amendments:
1. The Commission will cause one of its standing
committees to review proposed changes to these Procedures, or the delivery
schedules, and to present recommendations thereon to the Commission. The
Commission may, after any necessary review, discussion, investigation and
notice, vote to adopt the changes as "proposed amendments" in accordance
with the Commission's Bylaws.
2. Once "proposed amendments" have been accepted
by the Commission, the Commission will provide public notice as follows:
a. Notice of the "proposed amendments" will be
posted in the courthouses for each county in Idaho (Franklin, Caribou,
Oneida and Bear Lake), Utah (Box Elder, Rich, and Cache), and Wyoming (Lincoln
and Uinta).
b. The Commission will advertise in papers of
general circulation, for two consecutive weeks, its intention to hold public
hearings on the proposed amendments.
c. The Commission will notify the State officials,
and the river commissioners in Idaho, Utah, and Wyoming, of the Commission's
intent to amend these Procedures or the water delivery schedules.
d. Additional public notice may be given as the Commission deems appropriate.
e. The public notice, in general, will describe
the "proposed amendments," the time and place for public hearing, and invite
public input.
3. At least two public hearings in the Lower Division,
one in Idaho and one in Utah, will be conducted as follows:
a. The hearings will be held by the Commission
and conducted by the Chairman, Vice Chairman or designee as directed by
the Commission.
b. The hearings will allow an opportunity for
all present to comment on the "proposed amendments."
c. The record will remain open for fourteen calendar
days following the last hearing to provide additional time for written
comment.
d. A summary of the written comments and testimony received will be
made under the direction of the Commission.
4. Subsequent to the hearings and receipt of public
comment and after a ten-day notice to its members, as provided for under
the Bylaws, the Commission will reconvene to act in whole or in part upon
the "proposed amendments." Action of the Commission will be in accordance
with the Commission's Bylaws.