14d ‎(2)‎

• Board Meeting Date: 7/22/2008
• Description: Directors' Reports - CWCB Director
• Board Meetings - Doc Type: Memo

Agriculture may enter into contracts with producers or into partnership agreements on a regional level and
select from among proposed activities such as: (1) resource assessment and modeling; (2) water
conservation, restoration or enhancement projects, including "conversion to the production of less water-
intensive agricultural commodities or dryland farming;" (3) water quality restoration or enhancement; (4)
irrigation system improvements and irrigation efficiency enhancement; (5) drought mitigation; or (6)
"related activities that the Secretary determines will help achieve water quality or water conservation
benefits on agricultural lands."
The Secretary is to conduct a competitive process to select partners with transparent criteria for evaluating
applications, and may give greater priority to proposals that include a high percentage of agricultural
lands and producers, result in high levels of applied conservation activities, significantly enhance
agricultural activity, allow for monitoring and evaluation, and "assist producers in meeting a regulatory
requirement that reduces the economic scope of the producer's operation."
Moreover, the Secretary is to give a higher priority to proposals from partners that include conversion to
dryland farming, leverage federal funds with funds provided by partners, and "assist producers in States
with water quantity concerns, as determined by the Secretary." The Secretary "shall consider as an
eligible agricultural water enhancement activity the use of a water impoundment to capture surface water
runoff on agricultural land if... [it] - (1) is located in an area that is experiencing or has experienced
exceptional drought conditions during the previous two calendar years; and (2) will capture surface water
runoff through the construction, improvement, or maintenance of irrigation ponds or small, on-farm
reservoirs." Separately, in states with water quantity concerns, the Secretary is also authorized to provide
payments to participating producers for up to five years "in an amount sufficient to encourage producers
to convert from irrigated farming to dryland farming."
The law specifically requires consistency with state law. "Any agricultural water enhancement activity
conducted under the program shall be conducted in a manner consistent with State water law." The law
authorizes, in addition to other funds, the use of funds from Commodity Credit Corporation totaling
$73M for FY 2009-FY 2010, $74M for FY 2011 and $60M for FY 2012 and thereafter. None of the
funds "may be used to pay for the administrative expenses of partners." (Source: Western States Water
News Service)
HALE V. UNITED STATES - On June 6, 2008, the U.S. Court of Claims held that U.S. Forest
Service (USFS) actions on federally-owned portions of a watershed amounted to a taking of the plaintiff's
water rights, and also that the government dedicated the plaintiff's historical grazing lands to "another
public purpose." The case, the latest in a series of disputes that began in the mid-1990s, involves
property, grazing and water rights near Nevada's Toiyabe National Forest. In this proceeding, the estates
of Wayne and Jean Hage (Plaintiffs), the owners of the 7,000 acre Pine Creek Ranch, claimed that the
USFS violated the "Takings Clause" of the Fifth Amendment. Plaintiffs successfully argued that: (1)
USFS action unconstitutionally "took" their surface waters flowing from federal land to private patented
lands; (2) USFS "took" ditches constructed under the 1866 Irrigation Act; and (3) USFS cancelled their
grazing permit and subsequently devoted the grazing allotment to another "public purpose," entitling
them to compensation under federal statute. Senior Judge Loren A. Smith awarded Plaintiffs $4.22M
plus interest, attorney's fees and costs.
While earlier proceedings held that the cancellation of Plaintiffs' grazing permits did not amount to a
taking, Plaintiffs showed that the USFS "...took actions or established policies, distinct from the decision
to cancel Plaintiffs' grazing permit, that constituted a taking under the Fifth Amendment." Judge Smith
wrote, "Here, the Government did not only cancel Plaintiffs' grazing permit; it actively prevented them
from accessing the water through the threat of prosecution for trespassing and through the construction of
the fences. Clearly, these actions prevented Plaintiffs' access to the water and there was plainly a
`physical ouster' which deprived Plaintiffs of the use of their property. Therefore, the Court finds that the
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