BOARD00167 ‎(2)‎

• Board Meeting Date: 5/22/2007
• Description: WSP Section - Platte River Recovery Updates
• Board Meetings - Doc Type: Memo

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Responses to Questions from Senator Salazar

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Question I: If the modified North Platte Decree and Wyoming State law, as interpreted by the
State Engineer and the Attorney General, prohibit Reclamation from placing a call on upstream
water users during the irrigation season, why is an amendment needed?

Response:

I. Neither Fonnal Opinion No. 2004-001 nor previous Wyoming State Engineer opinions
prohibit the Bureau of Reclamation from placing a call on upstream water users during
the irrigation season. Rather, they opine that the State Engineer probably would not
honor such a call, and that refusing to honor a pos-May 1 call would be the proper course.
The 2005 letter from the Wyoming State Engif).eer that we sent with our earlier materials
states: "[I]n my opinion, a Wyoming State Engineer cannot say he will never honor a call
for regulation for Pathfinder Reservoir from May 1 to September 30 in each year." See
September 30, 2005 letter by Patrick T. Tyrrell, p. 4. Although Mr. Tyrrell also stated
that it would be difficult to conceive of circumstances leading to his office honoring such
a call, there are no guarantees, absent the legislation we have proposed, that such a post-
May 1 call would not be made and honored. .

2.

There is no guarantee that the Wyoming Supreme Court, or the U.S. Supreme Court, will
agree with the conclusions made in Formal Opinion No. 2004-001. Even if the State
Engineer were to follow the Opinion and refuse to honor a post-May 1 call for regulation,
he may be forced to do so if a judicial challeng~ is made to that decision.
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3. Mr. Tyrrell serves at the pleasure of the Wyoming Governor. Given Governor
Freudenthal's recent withdrawal of his previous support for legislation limiting the
Bureau of Reclamation's ability to place a post-May 1 call, there are no guarantees that
the current Engineer or his successor will not similarly change position concerning
whether to honor a post-May I call.

4. Throughout the entire Final Environmental Impact Statement ("FEIS") for the Platte
River Recovery Implementation Program ("PRRIP") there is no clear indication of where
the water for the PRRIP would come from. This left some uncertainty about which water
rights will be limited as a result of the PRRIP. Following the Governor's dramatic
reversal, it is now crystal clear that Wyoming's ,contribution will be borne by irrigators
above Pathfinder Reservoir. Indeed, despite the many assurances we have had to the
contrary, we note that the Modified North Platt~ Decree contemplates calculating an
allocation year by including months all the way!into July. Modified Decree, App. E.
Accordingly, despite all the promises, a post-M~y 1 call has been contemplated, and only
by way of the amendment we seek will protection be provided

5.

The amendment we have endorsed will leave room for compromise regarding future
implementation of the PRRIP, and can only hasten implementation of the program.
Without the amendment, the possibilities for compromise diminish significantly. We will
be forced to challenge the PMP and PRRIP by all legal means.

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