Irrigation Leader April 2012

Volume 3 Issue 4

April 2012

W. E. "Bill" West, Jr.: Whooping Crane Lawsuit Threatens Continued Water Delivery in Texas

The Colorado Solution to Endangered Species

By Kris Polly

T

he history of the Endangered Species Act (ESA) is muddled. Though passed with the greatest of intentions to save jeopardized plant and animal species in 1973, surprisingly few species have actually been recovered. Instead of serving as a catalyzing force towards the promotion of environmental stewardship, the ESA has become nothing short of a roadblock to achieving its original goals while simultaneously engendering great animosity among water users and landowners in the western United States.

There are currently 1,392 plant and animal species listed as “endangered” or “threatened.” According to the U.S. Fish and Wildlife Service (FWS), the government agency responsible for enforcing the ESA, 26 species have been removed from the list as “recovered.” However, that list includes three recovered species of kangaroo in Australia.

There is much room for improvement.

Yet there have been some important success stories. No state serves as a better example of effectively recovering species than Colorado. Instead of pitting the needs of species against the needs of people, Colorado has pursued solutions for recovering species that keep farmers irrigating and have little adverse effect on landowners’ property.

In the late 1990s, faced with the likelihood the FWS would list the lynx as endangered in Colorado (the lynx had not been seen in Colorado since the 1930s), thenGovernor Bill Owens directed Colorado’s Division of Wildlife (DOW) to begin a bold reintroduction program.

The DOW captured lynx in Alaska and Canada and released them into the remote San Juan Mountains in southwest Colorado. From 1999 to 2006, the DOW released 218 lynx while monitoring them with radio and satellite-tracked collars. Since that time, there have been multiple generations of lynx born, and the reproduction

rate has outpaced mortality.

The Upper Colorado Endangered Fish Recovery Program and the San Juan River Basin Recovery Implementation Program are additional examples of strong Colorado initiatives. Tom Pitts discusses both in this issue.

In 2004, I participated in an educational tour of Colorado’s lynx and fish recovery programs. What I remember from that trip is that both programs worked with the water users and property owners. No one lost the ability to irrigate or the use of their property. Instead, the programs provided protection to the irrigators and landowners from potential “takings” violations of the ESA and the threat of litigation from third parties. Such success is possible when the needs of people are prominently included in species recovery solutions.

This issue of Irrigation Leader focuses on the ESA, where and how irrigators have been able to find solutions and also, as is the current situation for the Guadalupe Blanco River Authority, how the ESA can be misused and unnecessarily put water rights at risk. Cooperative solutions that respect state water law, water and property rights are possible among water users, landowners, governmental entities, and environmental groups and are necessary for our nation to develop a truly successful endangered species recovery program. Anything short of a cooperative approach only serves to further diminish the original goals of this landmark 1973 legislation.

Kris Polly is editor-in-chief of Irrigation Leader magazine and president of Water Strategies, LLC, a government relations firm he began in February 2009 for the purpose of representing and guiding water, power, and agricultural entities in their dealings with Congress, the Bureau of Reclamation, and other federal government agencies. He may be contacted by e-mailing Kris.Polly@waterstrategies.com.

The Water and Power Report Listing Service Water Strategies, LLC, is proud to provide

The Water and Power Report Listing Service for water district RFPs and job opportunities.

This free service will allow your district to attract a broader audience to its announcements through The Water and Power Report website www.WaterandPowerReport.com.

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C O N T E N T S

APRIL 2012

2 The Colorado Solution to Endangered Species

By Kris Polly Volume 3

Issue 4

Irrigation Leader is published 10 times a year with combined issues for November-December and July-August by: Water Strategies, LLC P.O. Box 100576 Arlington, VA 22210 Staff: Kris Polly, Editor-in-Chief John Chisholm, Senior Writer Robin Pursley, Graphic Designer Capital Copyediting, LLC, Copy Editor SUBMISSIONS: Irrigation Leader welcomes manuscript, photography, and art submissions.

However, the right to edit or deny publishing submissions is reserved.

Submissions are returned only upon request.

ADVERTISING: Irrigation Leader accepts one-quarter, half-page, and full-page ads.

For more information on rates and placement, please contact Kris Polly by phoning (703) 517-3962 or by e-mailing Irrigation.Leader@waterstrategies.com.

CIRCULATION: Irrigation Leader is distributed to irrigation district managers and boards of directors in the 17 western states, Bureau of Reclamation officials, members of Congress and committee staff, and advertising sponsors.

For address corrections or additions, please contact our office by e-mailing Irrigation.Leader@waterstrategies.com.

COVER PHOTO: Mr. W.E. “Bill” West, Jr., General Manager of Texas’s Guadalupe-Blanco River Authority.

Irrigation Leader

4 Whooping Crane Lawsuit Threatens Continued Water Delivery in Texas 8 Fish Passage Improvement Project Secures Water Availability for 150,000 Acres of Agricultural Land 10 Endangered Species Act: Roadblock to Balanced Solution in California Water

By Congressman Jim Costa

12 Home-Grown Solutions Resolve Conflicts with ESA

By Tom Pitts

18 New Focus on the Endangered Species Act

By Leslie James

20 Delta Provides Key Opportunity to Improve ESA Implementation

By Tim Quinn

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Platte River Recovery Implementation Program Targets Coordinate Goals to Benefit Species, Ensure Continued Irrigation Water Availability

24 National Corn Growers Association Continues Growth as Commodity Prices Rise

By Jon Doggett

District Focus: 25 An Unusual Paring: How Grapes and Fish Go Together in California’s Wine Country

By Grant Davis

Water Law: 28 The U.S. Fish and Wildlife Service Wants to Hear From You, But Don’t Count Your Credits Too Quickly

By David Bernhardt

The Innovators: 30 Henry Orthman’s Legacy Contributes Strong Values to Company He Founded 3

Whooping Crane Lawsuit Threatens Continued Water Delivery in Texas

S

erving a 10-county statutory district, Texas’s Guadalupe-Blanco River Authority (GBRA) is charged with developing, conserving, and protecting the water resources of the Guadalupe River Basin. However, its ability to deliver water to area agricultural, municipal, and industrial users is being jeopardized by a lawsuit initiated by a nonprofit entity that claims water deliveries in the basin harm the endangered whooping crane.

GBRA serves up to 20,000 acres of agricultural land, which consists of rice or row crops depending on the year. These users have already been impacted greatly by the recent drought in Texas and would be among the first affected should a court order that additional flows be diverted to benefit the whooping crane.

Irrigation Leader Editor-in-Chief Kris Polly discussed the lawsuit and its potential consequences with GBRA General Manager W.E. “Bill” West, Jr., on March 29, 2012.

Kris Polly: GBRA has become involved in litigation related to the whooping crane. What can you tell our readers about the case?

Bill West: It started in March 2010, so we have been at it for a while. The complaint alleges that 23 whooping cranes died at the Aransas National Wildlife Refuge during the winter of 2008–09 as a result of the state’s regulation of water diversions. There is no evidence that 23 whooping cranes died. The case is predicated on unsubstantiated claims of harm to the whooping crane, primarily based on aerial surveys used in an attempt to “count” birds. Birds not seen during the flyovers were presumed dead rather than just missed or moving.

The case was filed by The Aransas Project (TAP). What the case is really about is “not in my backyard”—NIMBY. The real issue is not the protection of the whooping crane, but the potential construction of a nuclear power plant. One wealthy landowner does not want his adjacent neighbor to participate in the construction of that project.

That landowner is funding the TAP whooping crane lawsuit, which would eliminate the water for the plant.

They are trying to use the Endangered Species Act (ESA) in a back-door way to fight the construction of a nuclear power plant.

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So the real issue is a nuclear plant, but the whooping crane is the poster child used for ESA purposes.

Kris Polly: What do we know about how the whooping cranes fared in 2008–09?

Bill West: We know that there is no proof that 23 cranes died, much less that water diversions were the cause of any deaths. The mortality assumptions are based on a presumed predictability of identifying individual cranes from an airplane where the surveyor expects to find them within specific territories. Of course, cranes move and also simply are missed by the surveyors due to factors such as weather conditions and human error. The international Whooping Crane Recovery Team and the U.S. Fish and Wildlife Service (FWS) repeatedly have told us that the cause of a whooping crane mortality cannot be determined unless a carcass is found and examined.

Kris Polly: Were any crane carcasses examined in 2008–09?

Bill West: Yes, two intact carcasses, one partial carcass (viewed in the mouth of an alligator), and what was described as “an old pile of white-plumaged feathers” were identified. The two intact carcasses were taken by the FWS to the National Wildlife Health Center and examined there. The partial carcass and pile of feathers could not be medically examined for cause of death.

One crane had a leg injury that became infected and the crane died of an inability to feed due to its injuries. The other crane had an infectious disease and was killed by a Irrigation Leader

predator.

It’s time to put to rest TAP’s claims of 19 phantom deaths of whooping cranes at Aransas in 2008–09.

Kris Polly: How do water diversions figure in?

Bill West: Well, TAP alleges that water diversions regulated by the state caused increased salinity in the San Antonio Bay, negatively affecting the availability of wolfberries and blue crabs. Analysis showed, though, that even if no water at all had been diverted from the rivers during 2008–09, the salinity levels in the bay would only have been affected about 1 part per thousand on average— not enough to impact wolfberries or blue crab. Both tolerate a wide range of salinity, which you would expect given that they live in a marsh environment. Plus we have studies spanning over 50 years that show that whooping cranes eat up to 45 different foods, not just blue crabs or wolfberries.

TAP also claims that increased salinity also forced the cranes to fly from the marsh to the uplands, causing stress.

These cranes migrate 2,500 miles twice a year between their wintering grounds in Aransas and their summer grounds in Wood Buffalo National Park in Canada, where they nest. So the short flights from marsh to upland at Aransas, about three-tenths of a mile, are not likely to tax them. And of course, they don’t have wolfberries or blue crab available during migration or in Canada.

Kris Polly: How could this case affect GBRA’s ability to deliver water to your water users?

Bill West: One of the requests by TAP is to reallocate the surface water on the Guadalupe and have a federal judge order that the state must reappropriate it. One of their suggestions has been to allocate the first 1.1 million acre-feet of water to the whooping crane and then the remainder to the existing senior water rights holders. In the first place, there are years when there is not 1.1 million acre-feet of water coming down the river. In the second place, that sort of thing would basically reduce the supplies of most of the water users in the basin by about 50 percent.

Kris Polly: What is the significance of this case with regard to the ability of Texas to appropriate surface water rights?

Bill West: It has the potential of undoing more than 100 years of surface water right law in the State of Texas.

As in many western states, under the prior appropriation doctrine the state has been assigning water rights here for over 100 years. This potentially would turn that precedent upside down and could be seen as a basis for similar Irrigation Leader

lawsuits on other river systems in the state of Texas.

Kris Polly: How much has GBRA spent on this case so far?

Bill West: As I said, we started in March 2010.

Between a combination of legal fees and expert witnesses to refute the claims in the case, to date we have spent $5.5 million. For an organization of our size, on an annual budget of $50 million, that is significant.

Kris Polly: Has GBRA had any interaction with the whooping crane before this case?

Bill West: The Aransas National Wildlife Refuge is at the end of our basin, and so of course GBRA has been involved for years with the whooping crane. We co-funded a several year, multimillion dollar ongoing study by Texas A&M to help us better understand the needs and habits of the whooping crane. We have spent a considerable amount of time on the whooping crane and its needs not only to consider its survival, but also to focus on continued expansion of the flock.

Kris Polly: Are there any additional GBRA efforts underway to help increase whooping crane populations?

Bill West: Yes, GBRA continues to acquire land either with fees or conservation easements to further expand the whooping crane habitat. The key limiting factor on the growth of the flock of the whooping crane is available territory for the pairs. We have been active in acquiring additional lands down in the delta area to help increase acreage. Also, there is another unit adjacent to the refuge, known as the Whitmire Unit, where, in conjunction with the Guadalupe-Blanco River Trust, we have built canals for the delivery of water to enhance the whooping crane habitat.

Kris Polly: What should every water manager know from your experience?

Bill West: If you look at this case, and if you look at the potential listings of endangered species that are currently being considered by the FWS, there are almost 200 species being reviewed. These listings potentially could affect every river in Texas. Considering the United States as a whole and the potential listings, water managers across the country could be affected. With so many species being considered, there may be an increased risk in the future of being forced to defend suits brought by plaintiffs using the ESA to get to other purposes.

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Fish Passage Improvement Project Secures Water Availability for 150,000 Acres of Agricultural Land

C

alifornia’s Tehama-Colusa Canal Authority (TCCA) is a Joint Powers Authority made up of 17 water districts throughout a four-county region in Northern California. TCCA delivers 318,700 acre-feet of Central Valley Project irrigation water that is diverted from the Sacramento River by the Red Bluff Diversion Dam annually. However, the continued use of the dam to supply water to 150,000 acres of agricultural land was called into question by a 2008 court ruling asserting that the dam’s impact exceeded acceptable thresholds for endangered fish.

Completed in 1964, the diversion dam has long presented challenges to fish passage. “The TCCA board of directors saw this coming,” said TCCA General Manager Jeff Sutton. “Initially, there were hard feelings and frustration, but around 1998, after seeing what happened to their neighbors who had experienced a similar ESA [Endangered Species Act] challenge . . . it became very clear that our continued viability was dependent on our ability to find an acceptable solution.”

The diversion dam comprises a series of 11 gates that span the entire Sacramento River. When lowered, the gates 8

raise the level of the river 10–12 feet, allowing for gravityfed diversions into the water conveyance system. “From an engineering perspective, it just worked terrific,” Sutton said. “But when the gates are down, it impedes the passage of fish trying to get upstream to prime spawning habitat where temperatures are more conducive for successful reproduction.”

Despite fish ladders along each side of the dam and a floating center ladder that is installed when the gates are down, this partial solution to this issue for winter and spring-run Chinook salmon and Central Valley steelhead passage was still insufficient. For fish traveling upstream, it was difficult to maintain sufficient water running through the ladders to attract the fish. For juveniles traveling downstream, the lake that forms when the gates are down, as well as the turbulence caused by water going under the gates, created a very ripe environment for predation, further impacting the fishery resource.

Ultimately, when the green sturgeon, which are unable to utilize the fish ladders, were listed under the Endangered Species Act in 2006, other options to develop a preferred alternative to ensure safe fish passage Irrigation Leader

Artist’s rendition of the Fish Passage Improvement Project at Red Bluff.

were pursued in earnest. These efforts were redoubled in 2008 when a court ruled that the dam could not continue to operate, and the National Marine Fisheries Service (NMFS) gave TCCA three years to remediate the situation.

Additionally, the NMFS Biological Opinion declared that gate operations would be reduced for an additional six weeks during this interim three-year period. “We got together and came up with the idea to build an interim 500 cfs screened pump structure at a cost of $8 million just to survive until we could complete the permanent solution,” said Sutton. This interim solution, consisting of 10, 50-cfs pumps with cone fish screens, was intended to mitigate for the loss of the ability to operate the diversion dam during a crucial period of irrigation, while the permanent solution was developed. “We had to have a permanent solution by 2012. . . . It has literally been a race against the clock,” said Sutton. “We were asking folks to go so fast from concept to operation that it was a miracle we actually pulled it off.”

Designed by CH2MHill Engineering, the permanent solution consists of the construction of a pumping plant near the existing canal headworks with an initial installed capacity of 2,000 cfs and a footprint that allows for expansion to 2,500 cfs. The complex structure includes a quarter-mile-long fish screen, as well as an open canal and siphon to deliver the water to the existing conveyance infrastructure. The new facilities should be operational by May 2012.

While the initial estimate for the project cost came in around $260 million, TCCA, Reclamation, and CH2MHill undertook value engineering, made Irrigation Leader

some changes to the project design, and due to a ripe construction environment and good construction management, the current estimate for final cost of the project is around $190 million. The project received a contribution of $116 million in stimulus funding, as well as other water and related resource federal appropriations.

The project’s authorization dates back to the 1992 Central Valley Project Improvement Act, which deemed that 50 percent of the federal funding is to be reimbursed through water rates. Additional project funding was provided by the state.

“To accomplish a project like this required the support of a diverse coalition of interests that included farming groups, environmental groups, state and federal resource agencies, and water users from around the state,” said Sutton. “The project also enjoyed bipartisan support from state and federal elected officials, a circumstance that doesn’t always present itself on such polarizing issues, but was instrumental to the success of this important project.”

Sutton concluded by stating, “The Red Bluff Fish Passage truly exemplifies a balanced solution. By removing this impediment to fish passage and greatly enhancing access to prime upstream habitat, the fish win. At the same time, the project provides for year-round water supply reliability and allows us to avoid a huge disaster to our regional economy; thus, the farmers win as well.”

For more information on the Tehama-Colusa Canal Authority’s fish passage improvement project, visit its website at www.tccanal.com/fishpassage.php.

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Endangered Species Act: Roadblock to Balanced Solution in California Water

By Congressman Jim Costa

W

ater is and has always been the lifeblood of my home, the San Joaquin Valley. Virtually everyone who lives and works in our valley is impacted by water. We know first and foremost that water means jobs, opportunity, and growth.

There is no doubt that California’s water system is broken. We can and must fix it in a way that ensures farmers and communities receive their fair share of water while protecting our environment.

Over 25 million Californians rely on water from the Sacramento-San Joaquin Delta, as well as millions of acres of highly productive farmland in the San Joaquin Valley.

The delta is the linchpin of California’s plumbing system and the largest estuary on the West Coast of the United States. In recent years, the water supply for agricultural and municipal use has been impacted by efforts to protect listed fish species.

There are two major regulations that limit the amount of water that flows through the delta to the San Joaquin Valley and Southern California. One is from the Department of the Interior that protects the delta smelt, and the other is from the Department of Commerce to

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protect native salmon species. Both of these regulations are based on protections established by the Endangered Species Act (ESA).

There is nothing wrong with working to protect at-risk species and conserve our natural resources, and I support many efforts to do so. However, for far too long the decisions about our water supply have relied on bad science and focused primarily on the potential impacts to the natural environment while ignoring the cost to our human economy.

The ESA requires that implementation of restrictions should be based on the best scientific and commercial evidence available. Study after study has shown that there are multiple human and nonhuman stressors that have contributed to environmental changes throughout the delta and specifically to fish species. Municipal wastewater and industrial discharges, invasive species, predation, power plant diversions, urban and agricultural runoff, diversions and in-delta pumping, and ocean conditions, among others, have all altered the delta.

Just last year, Federal District Court Judge Oliver Wanger handed down a decision that the Interior rule protecting the delta smelt did not adequately account for human well-being. Recent decisions by the District Court Irrigation Leader

have required both Interior and Commerce to go back to the drawing board to address the deficiencies Judge Wanger identified.

Cities, states, and irrigation districts throughout the West face similar challenges to ours in the San Joaquin Valley, pitting the interests of our human population against that of native species. These shared challenges require us to reexamine how the ESA is implemented nationwide.

The rigid nature of the ESA in its current form does not allow for the necessary flexibility to get us where we need to go. Especially in dry years like this one, the ESA puts us at an impasse in which the burden falls overwhelmingly on the people of our valley who need water the most.

The environment and meeting human needs do not exist in a vacuum, and it is impossible to think of these demands as such. There can be common ground to be found between environmentalists and water users, but that requires an honest conversation that has the best available evidence and science at its core. However, the ESA in its current form has prevented that conversation from happening.

We cannot continue to pick winners and losers because of faulty data. Recent court decisions halting implementation of federal water regulations due to discredited science have reaffirmed the need for a new approach to implementing the ESA in the delta.

Now is the time to restore balance to our water management decisions in California.

For that reason, I introduced the More Water for Our Valley Act (H.R. 1251) last year to ease restrictions on pumping that have limited the flow of water into the San Joaquin Valley. The legislation provides congressional guidance on the ESA, which would provide additional water for farmers while offering reasonable protections for endangered species.

We know that more water means more jobs for our valley. We have faced both natural and regulatory droughts that have cost our economy dearly. For every 100 acre-feet that does not reach the fertile farmlands of the San Joaquin Valley, we lose one job, according to the University of California.

In a bone-dry year and in a region with double-digit unemployment, our farmers and farm workers are looking Irrigation Leader

at water forecasts, acutely aware that without regulatory flexibility, their fields will lay fallow and hands will remain idle. This is unacceptable and unexplainable.

Few people know the meaning of conservation better than a farmer. Their very job depends on being good stewards of the environment so they can continue to grow the crops that feed our nation. In light of high costs and instability of supply, farmers in the West have long prioritized water conservation.

We know that there are irreversible changes to the delta. And we know that a longterm solution must be found to protect our water resources and environment for generations to come.

That is why it is critical that we continue our efforts to implement the Bay Delta Conservation Plan (BDCP), which is an effort that began in 2006 to address the factors altering the health of the Delta in a more comprehensive way. It is one of the largest habitat conservation and restoration projects of its kind ever undertaken in the United States. In conjunction with habitat restoration, BDCP, if successful, will provide a more reliable supply of water to individual Californians and farmers.

California’s historic water wars did not start overnight, and they will not end until we come together to implement a comprehensive approach to delta restoration and water supply reliability, such as the BDCP. This is the single best hope to bringing true balance back to our system and preventing the further decline of fisheries and water quality in the Sacramento and San Joaquin River Delta system.

We call this the “co-equal goals� of the BDCP. Until we complete the BDCP, we need flexibility.

Our valley farmers figure out how to be productive when resources are tight and do the best they can with what they have. They expect the same out of Washington.

Congressman Jim Costa (D-CA) is a member of the House Natural Resources Subcommittee on Water and Power.

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Home-Grown Solutions Resolve Conflicts with ESA

By Tom Pitts

K

lamath River. Columbia River. Bay Delta. Edwards Aquifer. The headliners for battles between water use and protection of endangered species under the federal Endangered Species Act (ESA). Notably absent are the Upper Colorado and San Juan River basins, home to four federally listed endangered fish species and 1,000 river miles of designated critical habitat.

In 1983, only five years after the 1978 Supreme Court decision on Tellico Dam (TVA vs. Hill), Upper Colorado River basin water users faced a confrontation pitting state water law and interstate water compacts against protection of federally listed endangered fish species. The U.S. Fish and Wildlife Service (FWS) drafted a proposal to halt any additional water depletions in Colorado, Wyoming, and Utah. Water depletions anywhere in the basin would be replaced by the addition of an equal amount of water.

Continued water development in Colorado, Wyoming, and Utah under interstate water compacts would have stopped.

The proposal would also have disrupted continued water contracting by the Bureau of Reclamation.

In light of the 1978 Supreme Court decision, water users supported negotiation of an administrative solution that would respect state water rights and interstate water compacts and comply with the federal ESA. Environmental organizations, concerned about continued depletions in the Upper Colorado River basin and the impact of those depletions on endangered species, agreed to participate in negotiations. States needed assurance that state water law and interstate water compacts would be honored. Reclamation and other federal agencies needed environmental compliance for continued operation of water and hydropower projects. The FWS needed compliance with the ESA. Power customers and the Western Area Power Administration needed certainty regarding power generation at Reclamation projects. All

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parties preferred negotiation to legal action. Negotiations were initiated in early 1984. In 1985, water users proposed recovery of the species to resolve the conflict, which provided the most certainty for all parties, including the endangered fish. The Upper Colorado Endangered Fish Recovery Program was established in January 1988.

In 1988, water users in southwestern Colorado and northeastern New Mexico encountered a similar conflict with ESA compliance for Reclamation’s Animas-La Plata Project. Water users, the states, Native American tribes, and federal agencies negotiated the San Juan River Basin Recovery Implementation Program. Since 1992, the program has provided compliance with the ESA for existing and future federal, nonfederal, and Indian water projects. The program operates in the context of interstate compacts, tribal and state water rights, and the tribal trust responsibilities of the United States.

Recovery program fundamentals

The Upper Colorado and San Juan recovery programs are based on a few fundamental principles: • The programs’ goal is recovery of the species, rather than simply avoiding jeopardy. Recovery provides a defined endpoint. Program actions are consistent with species recovery goals, enhancing the ability of those actions to provide ESA compliance for water projects.

• Actions taken by the programs are considered first by the FWS as providing ESA compliance for waterrelated impacts of existing and future water projects.

• Parties to the programs, including federal agencies, provide funding to implement recovery actions, including capital projects (hatcheries, fish passages, fish screens, habitat improvement), provision of instream flows, nonnative fish control, stocking, monitoring, and research.

• Water users, states, and Reclamation cooperatively provide water for the fish in accordance with state

Irrigation Leader

law, tribal rights, and interstate compacts. Water is not taken from any water right holder or Reclamation contractor. Elimination of the threat to water rights allows innovative solutions to providing water for endangered fish.

Assessment

The Upper Colorado program has operated for 24 years and the San Juan program for 20 years. By any measure, these programs have been tremendously successful: • Most species populations have increased dramatically.

• Federal agencies, the states, water uses, and power customers have met agreed-upon funding levels specified in the programs’ federal authorizing legislation and in the basic agreements among parties to the programs.

• Substantial quantities of water are provided for endangered fish. No Reclamation contractor or water user has suffered a loss of water as the result of the programs. Reclamation and water users have cooperated to provide water through reoperation of federal projects, water conservation projects, and retiming of reservoir operations. State water law protects releases for endangered fish.

• Under the two recovery programs, approximately 2,300 existing and new water projects are provided with ESA compliance by the programs’ actions to date. These projects deplete 3.2 million acre-feet per year.

• ESA compliance has been streamlined for water users and federal agencies. Literally hundreds of small water users have ESA compliance at little or no cost under biological opinions backed up by the recovery programs. Larger water users benefit from streamlined ESA compliance.

• No lawsuits have been filed on ESA compliance for any water project under the two recovery programs.

Why do these programs work?

There are several basic reasons why these programs work: • Federal agencies (Reclamation, Bureau of Indian Affairs), water users, and tribes obtain ESA compliance for existing and future federal, nonfederal, and tribal water projects.

Irrigation Leader

• The FWS retains its independent authority to determine ESA compliance. The programs are achieving recovery of the listed species.

• Environmental groups see recovery of endangered species that also restores stream habitat, riparian habitat, and stream flows.

• For the states, the programs are carried out in accordance with state water law and wildlife law.

• For power customers and Western Area Power Administration, power revenue expenditures for the programs are capped via the programs’ federal authorizing legislation.

• Each of the participants has a high vested interest in the success of the programs.

• Participants actively engage in programs’ governing and technical committees.

• The programs are science driven and adequately staffed by professional scientists.

A significant factor contributing to success is the cooperative nature of the programs. Over the years, the diverse interests that might otherwise be adversaries have evolved cooperative, can-do, solution-oriented partnerships.

Conclusion

The recovery programs have enjoyed the bipartisan support of five presidential administrations, the congressional delegations of the four upper basin states, and subcommittees of Congress, both appropriations and authorizing. Such support at the federal level is the result of the strong grass-roots support for the programs among varied interests, as well as the programs’ accomplishments.

Tom Pitts has represented water users in Colorado, New Mexico, Utah, and Wyoming on negotiation and implementation of the Upper Colorado and San Juan recovery programs since 1983 and 1989, respectively. This article reflects his opinions only and not those of any other person or organization. Tom can be contacted at Water Consult, Engineering and Planning Consultants, in Loveland, Colorado, by phoning 970-667-8690 or by emailing h2orus@waterconsult.com

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New Focus on the Endangered Species Act

By Leslie James

R

adical changes are underway regarding how the Endangered Species Act (ESA) is being applied, which may have profound impacts for the western United States. If you have not been focusing on ESA issues recently, now is the time to pay attention.

The Dam Breaks: Settlement for Listing of up to 250 Species Last September, a federal district judge in the District of Columbia approved a litigation settlement that mandates that the U.S. Fish and Wildlife Service (FWS) review and potentially designate 250 candidate species as threatened or endangered under the ESA over the next five years. That number would mean an increase of over 20 percent in the number of listed species. A majority of these candidate species are located in the western United States.

Several wide-ranging species are included in this settlement mandate, including the greater sage grouse and the lesser prairie chicken. Not only are these species likely to be listed as threatened or endangered, the FWS also will be obligated to make decisions on potential critical habitat for these species—which can impose significant additional restrictions on land and water use activities.

Improvements for Voluntary Conservation Efforts The FWS has recently announced an initiative to seek ideas on how to improve voluntary species conservation programs under the ESA. On March 15, the FWS issued an advance notice of proposed rulemaking laying out initial ideas on potential changes to ESA regulations, policies, and programs to promote voluntary conservation agreements and to develop a process that would recognize prelisting or advance mitigation for potential future adverse effects of project operations on a species that is later listed under the ESA. Stakeholders have long been faced with the dilemma that their efforts to protect an unlisted species and its habitat are not fully recognized in later compliance with the ESA, should that species become listed. Creating a meaningful set of regulatory assurances that allow for quantification and consideration of voluntary, prelisting conservation efforts in later ESA decisions would provide a level of regulatory certainty that is not available today.

Congress Reacts: Reassess the ESA Driven by the stepped-up pace of listing decisions, continued frustration with an act that has been unauthorized since 1992, and the recent initiatives announced by the FWS, many members of Congress are focusing again on the ESA. The House Natural Resources Committee has conducted a series of oversight hearings that started late last year and continues this year. The hearings will help the committee learn more about how the ESA is working throughout the country. The intended goal in 2012 is to lay the legislative groundwork for consideration of ESA improvements in the next Congress.

The 250 candidate species listing review, policy changes, voluntary conservation efforts and other ESA efforts underway are likely to affect landowners and businesses, including irrigation and agricultural interests, for years to come. The National Endangered Species Act Reform Coalition (NESARC) encourages the agricultural and irrigation communities to organize their participation in the increased level of listings and rulemakings that will be undertaken this year and beyond. These actions will reach into every corner of the West, and it is important that landowners and businesses engage with the administration and Congress on these important issues. NESARC has been helping landowners and industry work for practical improvements to the ESA for over 20 years. NESARC hopes you will join this call to action during this critical time for ESA policy.

FWS/NMFS Policy Changes to the Listing Process The listing settlement was soon followed by the December 2011 announcement of a new policy interpreting the term significant portion of its range for purposes of listing a species. Under this policy, a species that is otherwise healthy throughout its range could be designated as threatened or endangered if a portion of its population or its range is deemed to be significant and the lack of ESA protection would endanger its continued existence in that range. Further, the policy introduces a new concept of up-listing a species, in which a species that is threatened throughout its range would be designated at the higher protection level of endangered, within which it is determined that a species warrants that protection within a significant portion of its range. While the policy is still in draft form at this time, the FWS and the National Marine Fisheries Service (NMFS) have announced that they will use the interpretation and principles in the proposed policy as nonbinding guidance in making individual listing determinations.

This policy is just one of several key statutory phrases in the ESA that the administration is reviewing. For example, the FWS and NMFS are continuing to review proposals on Leslie James, executive director of the Colorado River Energy how to interpret the adverse modification standard for impacts Distributors Association, serves as chairman of the National to critical habitat in section 7 consultations.

Endangered Species Act Reform Coalition. Additional information on NESARC may be found at www.nesarc.org.

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Delta Provides Key Opportunity to Improve ESA Implementation

By Tim Quinn

A

s water leaders throughout the West can attest, one of the biggest challenges in 21st century resource management is dealing with the Endangered Species Act (ESA).

ESA implementation in California, particularly in the Sacramento-San Joaquin River Delta, has had a pronounced impact on water deliveries in recent years.

Restrictions on water project operations to protect delta smelt and salmon have dramatically reduced water deliveries to key regions of the state, causing significant losses to the economy with seemingly no improvement to the delta ecosystem or the affected species.

The situation has thrust the ESA into the spotlight and sparked widespread calls to address what some see as a fish versus people debate. But while the delta is a prime example of what’s wrong with the current approach to the ESA, it is also a critical opportunity to improve the way the ESA is implemented and put California on a path to restoring both water supply reliability and ecosystem health in the delta.

Through a collaborative effort known as the Bay-Delta Conservation Plan (BDCP), water users are working with state and federal agencies to apply a more comprehensive approach to resolving problems that have put water supplies and the delta ecosystem at risk.

The BDCP is the kind of effort the Association of California Water Agencies’ (ACWA’s) board of directors had in mind when it adopted a set of forward-thinking policy principles on ESA implementation back in 2010.

The principles call for a comprehensive, ecosystem-based approach to ESA implementation that recognizes the coequal goals of water supply reliability and ecosystem health and utilizes a more diverse set of management tools.

Comprehensive Approach Needed

ACWA supports the underlying goals of the ESA. But current implementation activities are not working, particularly for the species to be recovered. Without a fundamental change in implementation strategy, ACWA believes it will be impossible to achieve the goals of the act while also meeting the needs of California’s families, farms, businesses, and communities.

We believe there is a better way. As proponents of the BDCP have also observed, we need an approach to endangered species protection that is more in line with the

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co-equal goals that are now the cornerstone of California water policy under the 2009 package of reforms enacted by the legislature. We need integrated strategies that address all factors contributing to the decline of species and incorporate real-time data to adaptively manage projects.

Too often today, agencies responsible for ESA administration focus their limited resources on singlespecies approaches rather than comprehensive strategies that address an array of factors affecting a species and its habitat. In the case of federally listed species, for example, responsible agencies limit their consultation to individual federal actions under section 7 of the ESA. The result is often narrowly constructed biological opinions or measures that fall short of remedying the underlying cause of ecosystem and species declines.

In addition, too few resources are dedicated to developing integrated strategies that address the problem holistically, with an emphasis on ecosystem health and use of real-time data to adaptively manage projects.

ACWA believes the implementing agencies should use the flexibility available under existing law to develop more integrated strategies that consider economic and social stability and encourage more parties to help develop solutions. Such an approach will necessarily require agencies to work in a more coordinated manner to address multiple species of concern with a more diverse set of tools.

In ACWA’s view, taking a multifaceted approach to the problem will result in more durable solutions and better achieve the goals of the ESA with less impact on water supplies and economies.

Potential to Cast ESA in New Light

The BDCP is a prime opportunity to put this approach to the test. As part of the BDCP, local water agencies are working with state and federal agencies to develop a Irrigation Leader

comprehensive plan to obtain long-term operating permits for the State Water Project and the federal Central Valley Project under the state and federal ESAs. The proposed BDCP conservation strategy is one of the largest and most complex environmental restoration plans ever attempted. It is being designed to address 62 aquatic and terrestrial species in a way that meets the highest environmental standards in the country as a Habitat Conservation Plan/Natural Communities Conservation Plan (HCP/NCCP). The plan calls for a more modern and reliable water conveyance system in the delta, restoration of up to 115,000 acres of natural habitat, and actions to address other stressors affecting the delta ecosystem.

Though no preferred alternative has been identified yet, the final plan will have to meet the co-equal goals and contribute to the recovery of 62 different species. If fisheries agencies determine it does not meet that test, the project will not receive the necessary permits under the ESA. The BDCP has the potential to cast the ESA in a whole new light when it comes to the delta. It is a welcome change from the single-species approach that has created conflict and put water supplies and fish on a collision course for too long.

Moving from Conflict to Improvement

Like the BDCP itself, ACWA’s policy principles are aimed at putting us on a path to constructive improvement in ESA administration at the state and federal levels.

While ACWA’s policy principles are notable for what they say, they are equally notable for who is articulating them. They were developed by a diverse task force including local water managers; board members and attorneys from every part of California, including agricultural and urban agencies; agencies upstream of the delta; and those that rely on exports from the delta for all or part of their water supplies. They were approved unanimously by the ACWA board, which in turn represents water agencies of every size and stripe.

As the debate over species protection continues in both California and Washington, ACWA looks forward to more constructive discussions as we move ahead with solutions such as the BDCP to address ESA issues and other challenges.

Tim Quinn is the executive director of the Association of California Water Agencies in Sacramento, California.

For more information on ACWA, please visit www.acwa.com.

Steven L. Hernandez attorney at law Specializing in

U.S. Bureau of Reclamation Contracts and Western Water Law 21OO North Main Street Suite 1A P.O. Box 13108 Las Cruces, NM 88013

(575) 526-2101 Fax (575) 526-2506 Email:

Irrigation Leader

slh@lclaw-nm.com

Platte River Recovery Implementation Program Targets Coordinate Goals to Benefit Species, Ensure Continued Irrigation Water Availability Beginning in the mid-1980s, efforts to relicense the Kingsley Dam on the North Platte River in western Nebraska led to concerns about effects on endangered and threatened species in the area. Ultimately, in 1997, the governors of Nebraska, Wyoming, and Colorado worked with the secretary of the Interior to develop a cooperative agreement that focuses on maintaining the diverse roles the river plays in the region.

By 2006, federal and state representatives, water users, and environmental groups negotiated a program document intended to govern the management of land and water resources to benefit the endangered whooping crane, interior least tern, and pallid sturgeon, as well as the threatened piping plover.

“The Platte River is a hard working river . . . it’s about finding a balance point,” said Dr. Jerry Kenny, the executive director of the Platte River Recovery Implementation Program, which began in 2007 to implement the program document’s goals. “We don’t want to upset the apple cart of life and economy of the region.”

Importantly, the program aims to ensure the continued vitality of irrigated agriculture in the river basin. “We’re doing everything we can to keep as much land in irrigation,” said Kenny. “There is a growing understanding that there are a lot of common interests . . . farmers are natural stewards of the land.”

The program currently has three components: a water plan, a land plan, and an adaptive management plan.

The water plan targets a reduction in flow shortages by 130,000 to 150,000 acre-feet per year by 2019. There are three main strategies the program is implementing to achieve these flow shortages. First, the program will use a new re-regulation reservoir, as well as aquifer storage, to retime flows on the Platte River. Additionally, the program will lease or purchase rights from surface or ground water providers. Finally, the program will develop water management incentives to reduce water use in the region.

The land plan includes the short-term goal of protecting, restoring, and maintaining 10,000 acres of habitat to benefit the target species. In the long term, the program hopes to maintain 29,000 acres. Once land is acquired, the program seeks to rehabilitate it. Often, this involves agreements with farmers and ranchers to graze cattle on program land. Additionally, acquired land is

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generally kept in agricultural production until the program concludes on an intended purpose for the parcel.

The program has also teamed with the Nebraska Game and Parks Commission to open acquired lands for recreation. Currently, about 3,000 acres of acquired land is open to hunters and birdwatchers through an online reservation program. “We are looking to renew and extend the agreement,” said Kenny, noting the intent to allow access to additional acreage. “We have had people come over 400 miles to hunt.”

The adaptive management plan component of the program provides a systematic process to test hypotheses concerning the target species in order to better implement program objectives. Efforts included the Lower Platte River Stage Change Study, which the program commissioned to assess the impact of flow changes over time on river change and associated physical parameters.

“That was the first project for the program in its first increment,” said HDR Engineering Water Resources Section Manager Pat Engelbert. “The team evaluated how program activities may affect physical processes in the lower Platte River.”

Additional adaptive management plan components included a sediment augmentation study, which was developed to assess the potential of achieving sediment balance in the Platte River. “It’s a unique project,” said Engelbert. “The goal is to bring the river back into sediment balance by eliminating the current deficit.

The channel has degraded and we want to stop it from degrading further.”

Efforts on the sediment augmentation study utilized a hydraulic model of the Platte River from the Keystone Diversion to Chapman that was also developed for the program. The model is now being used to evaluate several program project elements.

Overall, the adaptive management plan component will provide the groundwork for future program efforts. “We’re learning how to best use land and water resources to truly benefit the species,” said Kenny. “We are trying to figure out what things are important and really put an emphasis on that.”

For more information on the Platte River Recovery Implementation Program, visit www.platteriverprogram.org.

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National Corn Growers Association

Continues Growth as Commodity Prices Rise

By Jon Doggett

A

s the only national commodity group that has grown in recent years, the National Corn Growers Association (NCGA) aims to ensure the continued success of its members across the United States. We strongly believe in providing good value for our members’ dollar, a benefit I know corn growers appreciate.

Founded 55 years ago, NCGA represents approximately 37,000 dues-paying members today.

Additionally, the association represents nearly 300,000 corn growers nationwide who participate in state check-off programs, which allow them to contribute to groups such as NCGA as part of their state tax filing.

Although only about 15 percent of American corn growers use supplemental irrigation water, many have invested in efficient irrigation systems. As yields and prices have increased, growers have additional funds to invest in better technology.

However, numerous corn growers are endangered by the lack of progress on legislation designed to reverse a federal appeals court decision that required the U.S. Environmental Protection Agency (EPA) to include applications of pesticides under the regulatory umbrella of the Clean Water Act. Previously, pesticide applications were exempted from this process provided that they were conducted according to EPA-approved Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) label requirements.

NCGA supports efforts to end this duplicative Clean Water Act permitting program that not only imposes a significant compliance burden on many pesticide users, but opens them to third-party lawsuits made by private citizens and environmental groups with no real cause of action. A bipartisan bill adopted by the House of Representatives

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(H.R. 872) would provide an explicit exemption for pesticide applications made in accordance with FIFRA. Unfortunately, this legislation remains stalled in the Senate as negotiations continue. NCGA remains a strong advocate for the bill and has implored senators to give it a straight up-or-down vote, rather than allow it to remain in off-floor debates.

NCGA also works diligently on a number of other legislative issues throughout the year. These include the Farm Bill, ethanol, trade policy, transportation, and resources issues. Many of the environmental and resources issues the association focuses on revolve around water.

The policy initiatives of the association are set by its members, who are represented by a 15-person board.

Each year, policies are reviewed and adopted. Many begin through the work of NCGA’s action teams and committees, each of which focuses on a specific area of the association’s agenda. This member-led approach has been an important component of the NCGA’s five decades of success and will continue to be an integral part of its actions.

Jon Doggett is the vice president of public policy for the National Corn Growers Association in Washington, DC. For more information on NCGA, visit its website at www.ncga.com.

Irrigation Leader

District Focus

An Unusual Pairing: How Grapes and Fish Go Together in California’s Wine Country

By Grant Davis

D

on Wallace is a farmer. His family’s Dry Creek Vineyard (located in a valley 60 miles north of San Francisco) is renowned for intense zinfandels and crisp sauvignon blancs. Fortunately for coho salmon, Wallace is also a sailor and a passionate conservationist who has become a leading spokesman for a project that could help save these endangered fish in the Russian River watershed.

Wallace’s family vineyards and winery are located in Dry Creek Valley, one of California’s premier grapegrowing regions. Dry Creek itself is a major tributary that serves as a 14-mile conduit, delivering water from a large reservoir (Lake Sonoma) to the Russian River, where it is pumped through a riverbank filtration system and delivered to 600,000 people.

In a region characterized by hot, arid summer days and cool nights, Dry Creek’s constant flow of cold clear water provides the best opportunity to save coho from extinction in the watershed, but the creek itself lacks the complex habitat (backwaters, side channels, and woody debris) that young fish need to thrive. In 2008, the owners and operators of Lake Sonoma—the U.S. Army Corps of Engineers (Corps) and the Sonoma County Water Agency (SCWA)—were mandated by National Marine Fisheries Service (NMFS) to change operations to avoid harming coho, steelhead, and Chinook salmon, all listed under the Endangered Species Act. A key component of NMFS’ decree was enhancement of six miles of habitat on Dry Creek. The SCWA hired Interfluve, Inc., a Portland-based engineering firm specializing in creek restoration, to design a plan that would meet NMFS requirements and withstand winter flows that can reach 10,000 cubic feet per second of flow.

The big issue? Finding a way for a government agency to work cooperatively with the ranchers and farmers who own more than 90 percent of Dry Creek. Enter Don Wallace. While Wallace is no fan of bureaucracy, he understands what’s at stake. “I don’t want the coho to go extinct on my watch,” Wallace said. “I want my grandkids and their kids to see these powerful fish spawning in the creek.”

So Wallace was interested when he and a number of his neighbors learned about an opportunity to implement the first mile of habitat enhancement. “Farmers are conservative when it comes to making changes on their land,” Wallace said. “If my neighbors and I can demonstrate to other landowners that this project is not only good for fish and for the creek, but that it’s good for the land, we think other farmers will step forward.”

While Wallace has been working with 10 nearby landowners (including Rued Family Winery and Quivera Winery), the SCWA has been informing the NMFS and other regulatory agencies at every step of the design process to ensure that the project complies with the federal mandate and that permitting goes smoothly. The water agency is also working closely with its congressional delegation to secure federal funding for the Corps’ share of the project.

If all goes well, construction on some components of the project will begin this summer, one year ahead of schedule. By 2020 when the project is complete, Dry Creek Valley may be known for its wine—and its fish.

Grant Davis is the General Manager of Sonoma County Water Agency (SCWA). For more information about SCWA, please visit its website at www.scwa.ca.gov.

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Water Law

The U.S. Fish and Wildlife Service Wants to Hear From You, but Don't Count Your Credits Too Quickly

By David Bernhardt

Advanced Notice of Proposed Ruling Making Incentivizing Conservation Efforts

Last month, the U.S. Fish and Wildlife Service (FWS) issued an advance notice of proposed rulemaking (ANPR) explaining that it is considering proposals to amend the regulations that implement parts of the Endangered Species ActĂŽ (ESA) and inviting public comment regarding changes to its regulations that would create incentives for landowners and others to take voluntary conservation actions to benefit species that might become threatened or endangered. Fed. Reg. 15352 (March 15, 2012).

Although it is by no means certain what, or even whether, any new regulatory proposals will actually emerge from this process, the FWS is considering some interesting approaches to incentivizing conservation efforts. For example, in the ANPR, the FWS explained its intent to propose a rule to encourage landowners and other potentially regulated interests to fund or carry out voluntary conservation actions beneficial to candidates and other at-risk species by providing a new type of assurance that, in the event the species is listed, the benefits of appropriate voluntary conservation actions will be recognized as offsetting the adverse effects of activities carried out by that landowner or others after listing.

77 Fed. Reg. 15352, 15353 (March 15, 2012).

Beneficial Prelisting Activities Could Be Credited Against Postlisting Section 7 Actions

At first blush, a rule providing assurances that beneficial actions taken before a species is listed could be used to offset the negative effects of activities carried out after listing could create a powerful incentive for entities to pursue conservation efforts for wildlife when there was a reasonable expectation that a species might be listed. However, the power, or potency, of such an incentive would likely depend on whether an offset could actually be relied upon when a proposed action was likely to either jeopardize a species or adversely modify or destroy its designated critical habitat, without the offset credit. Given the existing language of section 7 of the ESA, it is

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questionable whether assurances can be designed in a way that ensures an entity that the credit will be available when it is actually needed to proceed with a proposed action.

Currently, any time a discretionary action is to be taken by a federal agency that may effect a listed species or its designated critical habitat, the federal agency must engage in formal consultation with the FWS, or in other instances, with the National Marine Fisheries Service. During formal consultation, the FWS analyzes the potential for the proposed federal agency's action to cause jeopardy to the species or adversely modify or destroy designated critical habitat. In making this determination, the FWS must first define the current status of the species and the environmental impacts to the species that would exist even if the agency's action was not taken. 50 C.F.R. § 402.02; Final Rule, 51 Fed. Reg. 19,926, 19,932 ( June 3, 1986); NWF v. NMFS, 524 917, 924 (2008).

Known as the environmental baseline, the results of this evaluation serve as the baseline for determining the effects of the [discretionary] action on the species or critical habitat. Final Rule, 51 Fed. Reg. 19,926, Irrigation Leader

19,932 ( June 3, 1986). The environmental baseline consists of the impacts to the species that would exist anyway without the proposed action. 50 C.F.R. § 402.02.

Currently, the environmental baseline includes (1) the past and present impacts of all federal, state, or private actions and other human activities in the action area, (2) the anticipated impact of all proposed federal projects in the action area that have already undergone formal or early section 7 consultation; and (3) the impact of state or private actions that are contemporaneous with the consultation in process. 50 C.F.R. § 402.02.

This means that any activities taken with the hope of positively benefitting the species are already counted as a component of the environmental baseline.

Currently, once the FWS delineates the environmental baseline, it must then analyze the effects of the action that would likely be added to the environmental baseline if the proposed agency action were implemented. To conduct this evaluation, the FWS adds the likely effects of the federal agency action under review to the separate set of effects that make up the environmental baseline.

In contrast, to utilize the new offset concept would require additional analysis by the FWS. For example, in addition to the steps described above, the FWS would need to develop a hypothetical baseline, i.e., a baseline that would have existed but for the beneficial actions taken by a regulated interest before the species was listed to establish an offset credit. Then, the FWS would need to apply the offset credit by hypothetically reducing the negative effects of the proposed action and pulling them out of the existing baseline analysis to obtain the hypothetical effects of the action analysis applying the credit.

However, before proceeding with an action, the federal action agency will still need to comply with the substantive standard of section 7, which requires federal agencies “to ensure that any action authorized, funded, or carried out” by a federal agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which has been determined by the Secretary, after consultation with the States, to be critical . . .” (16 U.S.C. 1536(b)).

On its face, the language of section 7 does not allow a federal agency to proceed with any discretionary action that is likely to jeopardize the continued existence of a species or to adversely modify or destroy designated critical habitat. This substantive standard exists even if, at some earlier point in time, a regulated entity took many actions that placed the species in a better condition than it might have otherwise been. Even then, the federal agency cannot proceed without an exemption Irrigation Leader

from the Endangered Species Committee. Moreover, it is only in such instances—instances where the rigors of section 7 would have a preclusive effect on a proposed agency action—that the application of a credit would be of actual assistance. In any other instance, the federal agency could proceed forward with the proposed action without the application of an offset credit. Thus, I am skeptical that the FWS can actually provide meaningful assurances for section 7 actions that will create a powerful incentive without an actual change in the ESA itself. That said, the FWS should be commended for searching for creative ways to address the challenges of administrating the ESA. If you have an idea that might expand incentives for voluntary partnerships with private landowners and other land stewards to facilitate the conservation of imperiled wildlife under the ESA, submit it to the FWS on or before May 14, 2012.

The ANPR on Expanding Incentives for Voluntary Conservation Actions under the Endangered Species Act is available at: http://www.fws.gov/endangered/ improving_ESA/landowner_incentives.html.

Written comments and information concerning incentives for private land conservation of at-risk species can be submitted by one of the following methods: • Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments to Docket No. [FWS-R9-ES-2011-0099] • U.S. mail or hand delivery: Public Comments Processing Attn: [FWS-R9-ES-2011-0099]] Division of Policy and Directives Management U.S. Fish and Wildlife Service 4401 N. Fairfax Drive, MS2042-PDM Arlington, VA 22203 David Bernhardt is with the law firm Brownstein Hyatt Farber Schreck, LLP, in Washington, DC. He previously served as Solicitor of the Department of the Interior.

He can be reached by phone at (202) 296-7353, or by e-mail at dbernhardt@bhfs.com.

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The Innovators 30

Henry Orthman’s Legacy Contributes Strong Values to Company He Founded

T

oiling as an alfalfa and grain hauler between Nebraska and Kansas during the depths of the Great Depression, Henry Orthman continued to dream for more.

By 1938, he saved enough to make the down Portraits of Mr. Henry Orthman, founder of Orthman Manufacturing. payment on 160 acres of farmland on the Platte River, where he a three-point mount system. eventually became a leader in the mechanization of “He really had a love of the three-point hitch,” his handling alfalfa. It was this interest in progress— son recalled. Once the Ferguson patent on the threeand a strong propensity for tinkering with farm point hitch expired, major tractor companies adopted equipment—that ultimately led to the founding of it universally. This provided a strong marketing niche the company that bears his name today. for the new company that continued to grow as Henry “Dad was a good farmer, but he liked Orthman developed new products for farmers’ changing machinery much better,” said his son, Bill needs. Early successes included a tool bar with a hydraulic Orthman. “He never wanted to be called an cylinder inside the main tube instead of on top of the inventor. He always said he was an innovator. Dad bar—a design he patented and licensed to John Deere, had lots of his own ideas, but he was particularly International Harvester, and several smaller companies. adept at hearing the problems neighboring farmers Additionally, Orthman developed the first successful had with their equipment and developed solutions automatic implement guidance system to ensure cultivators that could be replicated over and over again.” ran straight and was a leader in developing high-residue “Every good idea comes from a farmer sitting row-crop cultivators. on a tractor,” said Bill Orthman. “Dad was really Henry Orthman was also an early advocate of limiting good at being able to listen and build equipment tillage trips to not only reduce fuel and labor costs, to do the job the farmer asked for.” but improve soil and decrease erosion. This philosophy By 1963, Henry Orthman began to see the eventually led to the development of the 1tRIPr in 1998, long-term promise of his ideas and founded a product that continues to be a success for the company Orthman Manufacturing. He hired a welder, today. drastically reduced his then 600-acre farming “Dad didn’t completely understand the agronomics, but operation, moved his farm shop into a hay storage he knew that the health and quality of the soil improved if shed, and began to produce attachments to convert you didn’t completely destroy the structure every year,” his tractor-mounted and pull-type corn cultivators to son recalled.

Irrigation Leader

Stacking narrow transport toolbar made by Orthman for John Deere.

Orthman Manufacturing headquarters is located near Lexington, Nebraska, on the original Henry Orthman farmstead.

The Orthman 1tRIPr is a pioneer in the strip-tillage market, helping improve yields with fewer trips across the field. Painted the well-know "Orthman green".

Throughout the company’s growth, Henry Orthman remained loyal to employees and farmers alike. “We have a lot of long-term employees; people liked to work with Dad,” Bill Orthman said. “He was great mentor and very open to people’s ideas . . . he liked to visit and have farmers come and talk with him.”

Despite Henry Orthman’s work to advance the company’s product offerings, perhaps one his most lasting legacies is the light green color that adorns all Orthman Manufacturing equipment. Initially, he painted equipment to match the colors of major manufacturers. However, he soon realized that he wanted his own color to distinguish Irrigation Leader

his company’s products.

“He started out with white and began bleeding a little green into the white until he came up with Orthman green,” said Bill Orthman. “We like that color, and we are recognized by it.”

Henry Orthman was 90 years old when he died in 2002. His son Bill Orthman managed the company through a difficult period for farm equipment suppliers in the 1980s, and in the 1990s developed the Mid-South dealer organization and began a relationship with John Deere that led to the company’s renewed success.

In 2000, to assure that the company remained in Lexington, the Orthmans sold to longtime sales and marketing manager John McCoy, who leads the company today. “He has done a tremendous job of growing and running the company,” said Bill Orthman.

The company remains based in Lexington, Nebraska, and has three manufacturing locations in central Nebraska producing precision agricultural equipment, industrial material handling equipment, and rebuilding CNC manufacturing work centers. It continues Mr. Orthman’s legacy by utilizing his original farm researching precision tillage and fertilizer application practices. In addition, the company cooperates with 13 research sites in the United States, 1 site in Europe and 1 in South Africa.

Today, Orthman Manufacturing has products operating throughout the United States and 16 foreign countries.

For more information on Orthman Manufacturing, visit its website at www.orthman.com.

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2012 CALENDAR May 8-11

Assn. of California Water Agencies, Spring Conference & Exhibition, Monterey, CA

May 18

Agri-Business Council of Arizona, Annual Meeting, Phoenix, AZ

Jun. 6-8

Groundwater Management Districts Assn., Summer Session, Nebraska City, NE

Jun. 13-15

Texas Water Conservation Assn., Mid-Year Conference, Horseshoe Bay, TX

Jun. 18-19

Idaho Water Users Assn., Summer Water Law Seminar & Workshop, Sun Valley, ID

Aug. 1-3

National Water Resources Assn., Western Water Seminar, Sun Valley, ID

Aug. 15-17

Colorado Water Congress, Summer Conference, Steamboat Springs, CO

Oct. 24-26

Texas Water Conservation Assn., Fall Meeting, San Antonio, TX

Oct. 31-Nov. 2

National Water Resources Assn., Annual Conference, San Diego, CA

For more information on advertising in Irrigation Leader magazine, or if you would like a water event listed here, please phone (703) 517-3962 or e-mail Irrigation.Leader@waterstrategies.com.

Submissions are due the first of each month preceding the next issue.

Past issues of Irrigation Leader are archived at

www.WaterandPowerReport.com