in summary...

this deserved attention in 2006. Or 2008. I think the City should get out of ECP immediately… pay off the water credit to SME... Re negotiate the water agreement with SME, remember, it specifically states it applies to a coal plant... then we would have the water reservation for future growth and the only question would be if the combination of the WRS contract and Lawtons authority to sign as the City representative were sufficent authority to sign the 2006 amendment, as DNRC seems to believe. Well that and the so far factless fraud allegations by Ms. Parks.

posted 3/08

The City filed a change application for use of its Water Reservation. The purpose of this was to allow up to 3,200 gallons per minute and up to 5,165 acre feet per year for use at the Highwood Generating Station.

PPL Montana filed an objection. How could they not? They run hydroelectric generation facilities on the Missouri River.

However, on July 16, 2007, that objection was withdrawn, as a result of a settlement agreement between PPL, SME, and the City of Great Falls. I will get it online, but for now I am going to quotes items 5, 6 and part of 9.

5. At any time the amount of water returned to the city at the Highwood return point is less than twenty five percent (25%) of the amount of water that is diverted at the Morony p.o.d., PPL shall be provided with mitigation measures in accordance with the side agreement between PPL, the City and SME, which are set forth in paragraph 9.

6. the total volume of water that can be diverted in an calendar year at the Morony p.o.d. under this change authorization shall not exced 3,999 acre feet. If, for whatever reason, the Higwood Generating Station requires any additional volume of water at the Morony p.o.d. in any calendar year, that additional water must come from another water right or rights.

9. (d) for each month within which there is Lost Generation amount, SME shall, before the end of the subsequent calendar month, make a payment to PPL that compensates PPL for the monetary value of the Lost Generation Amount for the prior calendar month.

So, in addition to not having access to the entire amount of water Highwood actually needs to operate, we are now required to return 25% of the water we do get to use to the river. How? In the SME scoping documents which are part of the final EIS, it notes that if the plant uses 2500 gpm, it will return 175 gpm. That is not even close to 25%. We would have to have a return of 625 gpm. Of course, the plant is expected to use closer to 3,200 gpm. We will be paying PPL for use of our own water and Highwood will be using water from another water right.

Cost based power just got a little more expensive.

From the documents GeeGuy just posted, I have deduced this Settlement Agreement never went before the City Commission. I wonder who wrote it.

To be continued...

part 2

"The City of Great Falls is embarrassed to defend an 1889 53,000 acre-ft/yr water right."

I don't agree the City is embarrassed. I think the City is realistic. Below, I posted the issue remarks on municipal claims for the City of Billings. They are multiple, on every right, and are very legitimate.

Right now, on the abstracts that I can see, the only issue remarks for these three Historic Great Falls claims are relative to no volume being claimed on two of them. This is because the three claims share the 20,140 a/f volume, and this should not be an issue with DNRC.

Great Falls has reasonable claims, backed up by historic, beneficial use. CCE stated "City documents show Great Falls pumped between 48 million and 55 million gallons of water per day in the sixties". I would like to see those documents, but apparently, WRSI has recently been asked to review them.  From the letter, we get an idea of what the documents are.

There is some information in the DNRC files. This is pages 13  and 14 of the claim record for 41QJ 123411, the 1966 right. This is page 30 from the same 1966 right. I will be refering to them below.

In the second paragraph of the letter, Mr. Schmidt discusses a memo, and if he is correctly reporting what the memo says, it doesn't seem to have great value.

Regarding the third paragraph, I have a copy of the Location of Water Right Notice of Appropriation. It is a very poor copy, but it states the claim is for 74 cfs. I don't really see anything suspect about it.

Fourth paragraph, I agree, this has no bearing on historic use.

The first paragraph on the second page shows volume calculations and notes that this volume would be difficult to justify. Excessive volume is also a concern in the DNRC issue remarks on the pre-amendment claim file, which notes that the claimed volume equals 1083 gallons per capita, per day. 250 gallons is apparently standard.

The last sentence of the last paragraph caught my notice. "In my view, this question has been vetted, rational explained and voted upon, and there is no smoking gun."

Voted apon by whom? And when?

Now in my primer below, I noted the basic facts regarding the Historic Water rights claimed by Great Falls. In my opinion, based on the information in the DNRC files, and the work of WRSI that I have access to, I believe the action taken regarding these rights was appropriate.

The volume of water is the only thing that decreased, and the volume now claimed, 20,140 a/f, is the amount of water that an estimated population of 71,920 would use. The City has preserved that as the claimed amount for pre 1973 historical, beneficial use. At this time, there appear to be no issue remarks of any significance on that claim. During the adjudication process, DNRC will probably review it and enter it in the decree as it is.

If the amount had remained at over 73,000a/f, there is every likelyhood that other water rights holders in the Missouri and Sun River Basins would have objected to it. DNRC already had issue remarks on it for excessive claimed volume. In the adjudication process, DNRC would accept evidence from the objectors, proving what they think the volume should be, evidence from the City on what we think the volume should be, they would review everything, and then decide what volume we get.

Page 30, link above, shows how the population figure for the current claimed amount was reached.
Page 14 shows water withdrawals by year and acre feet. I simply do not see any evidence WRSI should have done anything differently.

However, I certainly believe this information should have been presented and explained to the City Commission, before all interested citizens, and should be considered public record, maintained by the City Clerk, and available for inspection and copying to any and every citizen who walks in City Hall and requests it.

I find it quite troubling that a City Commissioner repeatedly requested information relative to this water right file, and was denied access to it. The DNRC file has many documents that are not scanned and posted online. WRSI has those complete files, and they are easily available to the City, if in fact, they are not in someones office.

a quick primer

I see confusion about the actual amounts of water involved here. As has been noted, I sometimes assume readers know more of the background information on what I am writing about than they actually may.

1889 right, 41QJ 123410. This is a Filed Appropriation Right with a priority date of 8/30/1889. Flow rate claimed is 74 cfs. Volume claimed was 53,574 a/f per year.

Water rights 123408 (1971) and 123411 (1966) are supplemental to this original right.

The 1971 right was for flow of 7 cfs and volume of 5,068 a/f. The 1966 right was for flow of 20 cfs and volume of 14,480 a/f.

This brings our totals to flow of 101cfs and volume of 73,122 a/f.  To achieve anything near this volume of use, Great Falls would have to divert the maximum flow of 101 cfs of water 24 hours a day, 365 days a year. This volume is unsupported by any historic use. Historic use is water we can prove we diverted for beneficial use prior to the 1973 Water Use Act. We cannot show we used that much water, and we cannot prove we have the capacity to store that much water.

So, in 2006, these claims were amended.

1966 right was amended to 0 volume, flow remained 20 cfs.
1971 right was amended to 0 volume but cfs was raised from 7 to 60.
1889 right remained 74 cfs and the volume was adjusted to 20,140 a/f, which volume is shared with the other two rights, as they are supplemental.

This brings the total for these three rights to flow of 154 cfs and volume of 20,140 a/f.

If you compare this flow rate to other cities, (excluding Billings) you will see it appears appropriate, and while many of them claim higher volume amounts, these typically have issue remarks and will probably be lowered during the adjudication process to conform to the flow rates. If you claim 2 a/f, but can only support usage for 1 a/f prior to 1973,  DNRC is going to take your other a/f of volume.

Now the Water Reservation comes in. Based on growth predictions, and the knowledge that the adjudication process was coming, Great Falls wanted to secure additional water beyond the 1973 historical beneficial use allocations. Municipalities were given the option of filing water reservations, which Great Falls did. This 1985 reservation claims flow of 9,155 gpm, and volume of 6,489 a/f. 

This is what Balzarini noted was about .004 % of the river flow. This reservation has no bearing on any historic use, and must be proven before it is a right.

Remember, these historic water rights listed above are based on pre 1973 water use. If we need more water in the future, we have to find it somewhere else.

part 1 originally posted 8/08

A recent post regarding Billings water rights came up on Cataract City. I understand that it was written by CCE folks, and originally posted on the CCE website site, but the blog is easier to link to, and it is a reprint of the same post.

"Billings is planning on defending 400,000 acre-ft per year of water rights. The City of Great Falls is embarrassed to defend an 1889 53,000 acre-ft/yr water right. Billings is defending a water right over seven times as large as Great Falls, but its population is only twice as large."

I cannot find anything, on the Billings City site, or any news article, that discusses this "defense" of the Historic Billings water rights.

The first thing to note is there isn't actually a whole lot you can do to defend a municipal water right. You basically have to prove historic beneficial use of that amount of water. I believe it will be very difficult, if not impossible, for Billings to support it's currently claimed rights.

Billings has three major municipal water rights claims, all out of the Yellowstone River, and all with pretty good priority dates. There is a lot of water being claimed there, and all three of these rights are being challenged by multiple entitys, entitys with very legitimate claims.

43Q-W-208213-00
OWNER: SOURCE:
CITY OF BILLINGS: YELLOWSTONE RIVER
OBJECTOR: NATURE OF OBJECTION:
CROW TRIBE OF INDIANS: PLACE OF USE, MAXIMUM ACRES, VOLUME, FLOW RATE, ABANDONMENT, NON-PERFECTION
BUREAU OF RECLAMATION: ABANDONMENT, NON-PERFECTION
BUREAU OF INDIAN AFFAIRS: PLACE OF USE, MAXIMUM ACRES, VOLUME, FLOW RATE
DNRC EXAMINATION REPORT ISSUES: FLOW RATE, PLACE OF USE, MAXIMUM ACRES, VOLUME
(Claim: 3000 cfs, 2,172,000 volume)

43Q-W-208214-00
OWNER: SOURCE:
CITY OF BILLINGS: YELLOWSTONE RIVER
OBJECTOR: NATURE OF OBJECTION:
CROW TRIBE OF INDIANS: PRIORITY DATE, PLACE OF USE, MAXIMUM ACRES, VOLUME, FLOW RATE, ABANDONMENT, NON-PERFECTION
BUREAU OF RECLAMATION: ABANDONMENT, NON-PERFECTION
BUREAU OF INDIAN AFFAIRS: PRIORITY DATE, PLACE OF USE, MAXIMUM ACRES, VOLUME, FLOW RATE
DNRC EXAMINATION REPORT ISSUES: FLOW RATE, VOLUME, PLACE OF USE 
(Claim: 2000 cfs, 1,448,000 volume) 

43Q-W-208215-00
OWNER: SOURCE:
CITY OF BILLINGS: YELLOWSTONE RIVER
OBJECTOR: NATURE OF OBJECTION:
CROW TRIBE OF INDIANS: PRIORITY DATE, PLACE OF USE, MAXIMUM ACRES, VOLUME, FLOW RATE, ABANDONMENT, NON-PERFECTION
BUREAU OF RECLAMATION: VOLUME, FLOW RATE BUREAU OF INDIAN AFFAIRS: PRIORITY DATE, PLACE OF USE, MAXIMUM ACRES, VOLUME, FLOW RATE
DNRC EXAMINATION REPORT ISSUES: FLOW RATE, PLACE OF USE, MAXIMUM ACRES, PRIORITY DATE, VOLUME
(Claim: 648 cfs, 469,152 volume) 

As you can see, DNRC has some work to do. The claims by Crow Tribe and BIA are fairly serious, and on the last water right, it appears DNRC will be examing the priority date. This is actually the earliest Billings right, with a volume of 648 cfs, a volume of 469,152 a/f and a priority date of 6/2/1885. (one acre foot is equal to 43,560 cubic feet)

This is in fact, the smallest claimed municipal right for Billings. Crow Tribe has a priority date of 1868, and some pretty bad-ass documents to defend its claims. They are challenging flow rate and volume on each of these Billings rights, and if the amounts claimed by Billings are correct, they are so outragously high, I really see no way the City can prove historic, beneficial use at these levels for any of these municipal rights, let alone all three. 

If I am reading these right, Billings is claiming a total volume of 4,089,152 a/f and flow of 5,648 cfs total for just these three rights. For comparison purposes, the Yellowstone River USGS gauge at Billings MT is discharging about 9,000 cfs right now.   

These amounts are outragous. Using Billings claims to rationalize that Great Falls should claim excessive water use strikes me as petty, and counter productive. We don't get to decide how much water we want, we must prove how much water we justifiably need. 

originally posted 11/08

I have written a fair bit about water rights and knowing that the DNRC is currently in the process of scanning a great deal of water rights information into its online database, I checked back there recently to see if there was anything new going on.

They now have the original City application for our water reservation, which was secured by the City two decades ago in anticipation of the Adjudication process, and the projected need for water in the future. On the whole, it is very dry reading.

In a nutshell, the City applied for the reservation, and supplied supporting information relevant to future growth, future use, population projections and such. (They were a little optimistic concerning population projections.)

Now, many people have been saying that the City should have kept its claim for historic use, disregarding the fact that there was no legitimate basis for that amount of consumptive use.  Despite my personal conspiracy thereory regarding why we were in such a rush to drop the access amount, I really don't see the big issue, because I believe that the excess would have been taken during the adjudication process, and we could very well have ended up with less than we are now claiming. I think sticking with a claim we can support, and which has not been objected to, is the best gamble.

During my perusal of the water reservation documents, I noted a bit of history on page 34. (It is actually more like page 46 in the actual file, but it is page 34 in the docs supporting the application, so I am going with that.)

"Although water rights exceed plant capacity, it is prudent for the city to reserve future water needs. The basis for this recommendation is the possibility that the adjudication process will reduce the right to that which the city has beneficially used in the past. The Water Courts recently denied the City of Troy a claim to water in excess of its historic needs, even though diversion capacity was larger than needed but less than the claim (Case 760-79, DNRC. 1988). As stated in the ruling, "Appropriators of water cannot maintain a valid claim to an amount of water in excess of the beneficial use to which it is applied, and when the appropriator or his successor ceases to use the water for such beneficial purpose, the right ceases." (emphasis added)

This is a document submitted by the City, to secure this water reservation, which uses the possible projected loss of our excess claims as a basis for securing the water reservation. This was filed with DNRC and dated 1988.

Now, in 2008, We have adjusted those claimed historic rights. We are anticipating selling water to SME from this water reservation. We are selling IMC water from this reservation, and may need to supply them more in the future, for which there are existing contracts.

Now, the City is anticipating the need for additional water for the future. For this future need, they anticipate spending about $10 million, with another $200,000 just to get it done. Lets think about this. The amount of water the City is looking at is around the same amount as the water reservation, of which a portion is dedicated to IMC, and a portion is dedicated to SME, if they can figure out how to get it.  

By my calculations, if we sell the coal plant 3,200 gpm, 24 hours a day, for 30 years, we will make a total of $8,073,216 off the sale of the water. If the plant uses water for 40 years, that total will go to $10,764,288.

It seems relatively simple to me to look at this, and say, if SME loses the water, we get it back, and satisfy the need for water for future use. If SME uses the water, that revenue should cover purchase of new rights, over time, and there really is no need for the City to charge or tax its residents for purchase of new water.

It seems the recent City government has spent an awful lot of money and effort working on the same things their predecessors apparently had a pretty good grasp on 20 years ago.

As an aside, I had a conversation with someone, I don't remember who, regarding pumps that have been installed for water diversion for the water treatment plant. This water reservation application has a "Historical Summary of Water System Improvements", through 1980, and a table of "Low Service Pumps and Drives" through 1971. These two documents are relevant to the historic use of the City of Great Falls.

 

billings update originally posted sometime in the past...

First, some history on what I am talking about, which is the City of Billings claimed water rights. Some time ago I questioned claims that our City should defend excess amounts of claimed water, based on what was happening in Billings. Since then, the adjudication process has been churning along, and now we have new information. This is all public record, which can be accessed at the DNRC website. To view the scanned water right files you need a viewer, which you can download there.

This however, is from the Temp. decree, which is going into the Objections stage. These are issue remarks on the three municipal claims for the City of Billings.

Two of these claims are supplemental, however, the claimed diversion and volume amounts are all added together to equal the maximum diversion of water that the Billings water system could handle - in 1973.

THE CLAIMED FLOW RATE IS IN QUESTION. ACCORDING TO INFORMATION IN THE CLAIM FILE, THE CAPACITY OF THE DIVERSION SYSTEM IS 150.70 CFS.

PLACE OF USE: ACCORDING TO INFORMATION IN THE CLAIM FILE, IT IS NOTED THAT AS THE CITY GROWS IN THE FUTURE, THE PLACE OF USE WILL BE ENLARGED. IT IS QUESTIONED WHETHER THE PLACE OF USE MAY BE INCREASED BEYOND THE CLAIMED WATER SERVICE AREA.

PRIORITY DATE:THE PRIORITY DATE IS IN QUESTION. ACCORDING TO INFORMATION IN THE CLAIM FILE, CONSTRUCTION OF THE WATER DISTRIBUTION SYSTEM BEGAN IN THE SPRING OF 1885, CUSTOMERS BEGAN BEING CONNECTED TO THE SYSTEM IN THE FALL OF 1886, AND CONSTRUCTION COMPLETED IN JANUARY, 1887. SYSTEM WAS FIRST TESTED IN MARCH, 1887.

SUPPLEMENTAL RIGHTS: THE COMBINED CLAIMED VOLUME FOR THE FOLLOWING CLAIMS IS 59,280 GALLONS PER CAPITA PER DAY (GCPD) BASED ON THE 1970 CENSUS POPULATION OF 61,581 PEOPLE AND A TOTAL CLAIMED VOLUME OF 4,089,152 ACRE-FEET.  THIS APPEARS EXCESSIVE FOR THE CLAIMED PURPOSE. W208213-00, W208214-00, W208215-00.

SUPPLEMENTAL RIGHTS:THE COMBINED CLAIMED FLOW RATE FOR THE FOLLOWING CLAIMS IS 5,648 CFS WHICH APPEARS TO EXCEED THE CAPACITY OF THE DIVERSION SYSTEM. AS OF 1973, THE TOTAL CAPACITY WAS 150.73 CFS. W208213-00, W208214-00, W208215-00.   

1885 priority date: This is the date of the claimed right. From the remarks above, it appears that Billings could not have begun using the claimed right in 1885.

Diversion capacity: This is the amount of water that the City has the actual capability to divert from the river. It appears clear that at no time have they had the capability to divert more than 150.73 cfs. Not 5,648 cfs. 150.73 cfs is the most water this system was able to divert, pre 1973, and that is all they can legitimately claim.

Claimed volume: As you can see, the volume claimed would equal 59,280 gallons of water per day for each and every person in the city of Billings. From what information I can find, 250 gallons per day per person is standard.

So there you have it. Remember, there are already objections to these claims lodged by senior, upstream water right holders, with very good claims. And do not forget the claims by Wyoming, which are also very real and legitimate.