BOARD00167 ‎(2)‎

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

.

.

.
\

i,

6.

The amendment we suggest is fully consistent with Wyoming law and is consistent with
the primacy of state water law. Indeed, it is the current proposal for the PMP that is not
consistent with Wyoming law, as it would create a new federal water right, for new
environmental uses in Nebraska; yet would have a 1904 priority date. There is certainly
nothing in Wyoming water law that recognize such a right. Our proposal would at least
mitigate the injury to upstream, junior water rights that will be cause by the PRRIP and
the PMP.

7. By way of the amendment, the United States could not place a post-May I call. In so
doing, the Wyoming State Engineer would not have to decide whether to honor any call.
The United States would be treated like any other state water right owner who has agreed
to limit a water right to prevent injury from a proposed change.

8.

Formal Opinion No 2004-001 only applies to calls from Pathfinder Reservoir, and
specifically does not apply to the additional storage proposed to be created by the
Pathfinder Modification Project ("PMP"). See Formal Opinion No. 2004-001, p. 2.
Pursuant to the Nebraska v. Wyoming settlement and the modified North Platte Decree,
the Bureau of Reclamation cannot call against upstream junior water rights with the
exception of those stored in Seminoe Reservoir. The Formal Opinion does not address
the impact of a rebound call when the 1931 Seminoe water right calls for regulation of
upstream rights. When calls are made against Seminoe Reservoir due to the Pathfinder
Reservoir 1904 right, and Seminoe places a subsequent call, the impact will be
effectively the same as if Pathfinder had made a call against all upstream water rights.

The amendment will provide some measure of relief to the irrigators in the Upper North Platte
River basin, while at the same time allowing the funding mechanisms for the PMP to move
forward without significant delay.

Question 2: Isn't it more appropriate to raise this issue before the Wyoming Board of Control
when Reclamation petitions the Board for a change in its storage permit for Pathfinder Reservoir.

Response:

1. Only the federal government can agree to the voluntary restrictions the Upper North
Platte Water Users have suggested by way of the proposed amendment to Senate Bill
752.

2. Action by the federal government in implementing the PMP is a matter of federal law,
including issues concerning the taking of vested property rights. See Tulare Lake Basin
Water Storage District v. United States, 49 Fed. Cl. 313, 319 (2001). These issues cannot
be addressed before the Board of Control.

3.

Ifpost-May 1 call protection is provided as an amendment to Senate Bill 752, there will
be no need to raise the issue before the Board of Control. It only makes sense to deal

15308