Written Testimony of Mike Purcell, State of Wyoming

Before the United States Senate

Committee on Energy and Natural Resources

Subcommittee on Water and Power

In Support of S. 752

Platte River Recovery Implementation Program and

Pathfinder Modification Project Authorization Act

My name is Mike Purcell. I am Wyoming Governor Dave Freudenthal's
representative on the Governance Committee of the Platte River Recovery
Implementation Program. Presently, I am serving as Chairman of that
Governance Committee. I would like to offer the following thoughts
relating to the importance of S. 752 to the Department of Interior,
States of Colorado and Nebraska, and, in particular, the State of
Wyoming.

The Platte River Recovery Implementation Program and Pathfinder
Modification Project enjoy the support of water users in the Platte
River Basin in Wyoming, including the irrigators that contract for
federal storage water, several municipalities, and others.

**[I. Platte River Recovery Implementation Program
(Program)]{.underline}**

Issues related to the endangered birds and the critical habitat in the
Central Platte River in Nebraska have affected water use and management
in the States of Colorado, Nebraska, and Wyoming since the late 1970's.
They have affected the relationships between the states and with the
federal government. The Platte River Recovery Implementation Program
affords the states the opportunity to address these issues through
cooperation rather than conflict.

After 14 years, the negotiations have been completed. The Wyoming
Legislature has approved the state's Program financial contribution of
\$6M and Governor Freudenthal and the other signatories have executed
the necessary agreements. The Program commenced on January 1, 2007.

The Program will provide the states coverage under the Endangered
Species Act (ESA) through simplified consultation processes for existing
water related activities and certain specified new water related
activities. The states and their water users will not be required to
complete contentious ESA consultations on each water related activity
requiring federal approvals. Without the Program, proponents of these
activities would likely be required to provide funding and water to gain
clearance under the ESA.

**A. Key Components of the Program**

1\. A major Program objective is to provide 130,000-150,000 acre feet of
water per year to reduce shortages to the Fish and Wildlife target flows
in the Central Platte.

2\. Another Program objective is to provide and maintain 10,000 acres of
habitat in the Central Platte.

3\. The monetary budget is approximately \$187M for the first increment
of the Program. The federal government will provide approximately
\$157M. To match the federal funding, the three states are making \$160M
in contributions. These contributions include: \$30M in cash,
approximately 3,000 acres of land, and an average of 80,000 acre feet of
water per year. Program cash will be dedicated to additional land
purchases and restoration, additional water (50,000-70,000 acre feet of
water per year), and an adaptive management program.

4\. While it does not show up as a contribution to match the federal
funding, it should not be overlooked that the states have also agreed to
curtail their water use to 1997 levels. Each state has developed a
depletions plan which has been approved by the parties that outlines how
that state will manage its water to meet this threshold. Implementing
these depletions plans will be costly and will affect future water use
and management decisions in all three states.

5\. The first increment of the Program will be 13 years. Provisions in
the Program call for additional increments if needed and if approved by
the states and the Department of Interior.

6\. An adaptive management scientific approach will be implemented to
determine the water and habitat needs of the endangered birds (whooping
crane, least tern, and piping plover) in the Central Platte River basin
in Nebraska and the pallid sturgeon in the Lower Platte River basin in
Nebraska. The states and their water users will have a seat at the table
during the development of this information, which will become the best
scientific information available for ESA purposes and will become the
basis of future consultations.

7\. The Program will be implemented by a Governance Committee in which
the states and their water users will both have individual members. The
Committee will operate on a consensus basis, which will ensure that all
views must be addressed.

8\. The Program will serve as the reasonable and prudent alternative
under the Endangered Species Act for existing water related activities
(depletions) that occurred prior to July 1, 1997, the date of the
initiation of the Cooperative Agreement which led to the Program, and
certain specified new water related activities.

**B. Why?**

Wyoming, Nebraska, and Colorado became interested in the Program when it
became apparent that the ESA provided the U.S. Fish and Wildlife Service
the authority to require the replacement of existing depletions until it
achieved its water supply goal for the critical habitat in the Central
Platte River in Nebraska. Therefore, the three states, the Department of
Interior, affected water users, and environmental groups began seeking a
cooperative solution in 1993.

Why did the states stay the course during 14 years of negotiations
relating to the Program? The state representatives had several meetings
and discussions relating to future life without a Program and came to
the following conclusions:

1\. The Fish and Wildlife Service would be obligated under ESA to
undertake separate ESA consultations on the federal reservoirs and other
major reservoirs in each state. The likely outcome would be that the
operations of those reservoirs that are presently serving our water
users would be reconfigured to provide 417,000 acre of feet water for
the endangered species and their habitat. The loss of this water would
"ripple" through each state's water right system impacting not only the
users of the storage water but also all water users in our states.

2\. Without the Program, ESA consultations required for future federal
actions (permits, including renewals; funding; contracts; easements; and
others) would require our water users (irrigators, municipalities,
industries and others) to replace existing and proposed new depletions.

3\. Prolonged and costly law suits would likely be initiated by each
state, or by the states collectively, challenging the ESA and the Fish
and Wildlife Service's interpretation of the ESA. Recent case history
indicates that unless there is meaningful reform to ESA, investments in
such litigation would likely be lost.

**[II. Pathfinder Modification Project]{.underline}**

**A. Description**

The Pathfinder Modification Project is authorized by Appendix F to the
Final Settlement Stipulation relating to the [Nebraska v.
Wyoming]{.underline} law suit, as approved by the U.S. Supreme Court. A
copy of the Stipulation is attached to this written testimony. The
Bureau of Reclamation (USBR) has a Wyoming water right to store
1,070,000 acre feet of water in Pathfinder Reservoir for the benefit of
the North Platte Project, which includes irrigated land in Eastern
Wyoming and Western Nebraska. Over the years, 53,493 acre feet of the
storage capacity of the reservoir have been lost to sediment. The
project would recapture this storage space. The recaptured space would
be administered through two accounts, the "Environmental account" and
the "Wyoming account." The operation of these accounts was carefully
crafted during the negotiations that lead to the settlement of the
[Nebraska v. Wyoming]{.underline} law suit which has been approved by
the U.S. Supreme Court in November, 2001. The United States and the
States of Colorado, Nebraska, and Wyoming were parties to the
negotiations.

An "Environmental account" consisting of 33,493 acre feet of the
proposed 53,493 acre foot enlargement will be established and will be
operated for the benefit of the endangered species and their habitat in
Central Nebraska. The Environmental account is Wyoming's water
contribution to the Platte River Recovery Implementation Program
(Program) on behalf of all of its water users in the Platte River basin,
including the federal government and its major storage facilities in our
state and irrigators in Nebraska that rely on storage water from the
federal dams in Wyoming.

The State of Wyoming has the exclusive right to contract with the USBR
for the use of 20,000 acre feet of the enlargement capacity in a
"Wyoming account." The USBR, under contract with Wyoming, will operate
the 20,000 acre feet of storage to insure an annual firm yield of 9,600
acre feet. This is the same yield that was anticipated from the proposed
Deer Creek Dam and Reservoir. Upon completion of the Pathfinder
Modification Project, Wyoming will cancel existing water rights and
federal permits pertaining to the Deer Creek Project.

The "Wyoming account" will serve as a much needed supplemental water
supply for Wyoming\'s municipalities during times of water rights
regulation. Many of the municipal water supplies along the North Platte
River have junior water rights which may be shut off or severely
curtailed during water rights regulation. The account will also provide
water to meet some of Wyoming's obligations specified in the [Nebraska
v. Wyoming]{.underline} settlement agreement and documented in the
Modified North Platte Decree.

The modification would be accomplished by raising the elevation of the
existing spillway by approximately 2.4 feet with the installation of an
ogee crest. The recaptured storage space would store water under the
existing 1904 storage right for Pathfinder Reservoir and would enjoy the
same entitlements as other uses in the reservoir, with the exception
that the recaptured storage space could not place regulatory calls on
existing water rights upstream of Pathfinder Reservoir, other than the
rights pertaining to Seminoe Reservoir.

The Pathfinder Modification Project is essential to Wyoming in order for
the state to meet its obligations under the Program and the Modified
North Platte Decree.

**B. Status**

State authorization to contract with the USBR was approved by the 2006
Wyoming Legislature. The Wyoming Legislature has approved an
appropriation of \$8.5M to implement the project.

The next critical step is securing Congressional authorization for the
Secretary of the Interior to modify the Pathfinder Dam and Reservoir and
enter into agreements with the State of Wyoming for the implementation
of the project. Upon receipt of this authorization, the following work
can be completed:

1\. The USBR must obtain a partial change of use for its Wyoming water
right for Pathfinder Reservoir from the Wyoming Board of Control for the
53,493 acre feet of Pathfinder storage water from irrigation use to the
uses proposed by the Project. The funding approved by the Wyoming
Legislature cannot be encumbered until the

USBR obtains this partial change of use. This condition was placed on
the funding to ensure that those with concerns about the project could
express those concerns before a state tribunal before construction could
begin.

2\. The State of Wyoming and USBR must negotiate a contract to formalize
the partnership between the parties.

3\. While the final EIS for the Program will serve to address the
regional effects of the project, a site-specific NEPA document will be
required.

4\. Under the PRRIP, Wyoming is obligated to have the Project
operational in 2011. However, the WWDC would like to have the project
completed as soon as possible as the water is needed to meet the state's
obligations under the Modified North Platte Decree.

**C. Proposed Amendment**

An amendment to Senate Bill 752 and House Resolution 1462 has been
proposed on behalf of the Upper North Platte Water Users. The proposed
amendment suggests that the Bureau of Reclamation should be restricted
from seeking water rights administration (calls for regulation) on
behalf of Pathfinder Reservoir during the irrigation season. I would
like to offer the following clarifications:

1\. The Platte River Recovery Implementation Program (Program) and the
Pathfinder Modification Project (Project) will not impact the issue of
priority calls on water rights upstream of Pathfinder Reservoir during
the irrigation season. This matter relates to interpretations of the
Modified North Platte Decree and Wyoming water law.

2\. All calls for regulation must be deemed valid by the Wyoming State
Engineer before any water rights administration can occur. The Wyoming
State Engineer has advised that a very difficult standard must be
overcome for such calls to be honored.

3\. The Wyoming Attorney General, upon review of the Modified North
Platte Decree, concluded that such calls should not be honored

4\. The matter of the effects of the Project on Wyoming water users will
be brought before the Wyoming Board of Control during its hearings on
the Bureau of Reclamation's petitions for the partial change of use to
the storage water right for Pathfinder Reservoir. The Upper North Platte
Water Users will be afforded the opportunity to present their views and
evidence to this state tribunal and state statutes ensure that the
project cannot be constructed until the opportunities for any resulting
appeals have been exhausted.

5\. Please refer to Section 1 of the attached copy of Appendix F to the
Final Settlement Stipulation which states in part: "The recaptured
storage space would store water under the existing 1904 storage right
for Pathfinder Reservoir and would enjoy the same entitlements as other
uses in the reservoir with the exception that the *recaptured storage
space could not place regulatory calls on the existing water rights
upstream of Pathfinder Reservoir other than the rights pertaining to
Seminoe Reservoir*." (Emphases added.) The Upper North Platte Water
Users are located upstream of Pathfinder Reservoir.