THE 20-YEAR COMPACT REVIEW IS CURRENTLY UNDERWAY

 

CURRENT STATUS:  The Commission has announced public meetings in October and November and will accept comments through December 4, 2017.

 

The following is to provide some context to the 20-Year Compact Review process, some basic information on the Bear River Compact and the Bear River Commission, links to key documents and instructions for providing input during the review effort.

 

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Compact Overview

 

With Congressional consent, the United States Constitution allows for states to enter into binding interstate agreements or compacts.  Article 1, Section 10 provides that "No State shall, without the Consent of Congress... enter into any Agreement or Compact with another State."  Recognizing the need to equitably divide or apportion the waters of the Bear River (which crosses state lines five times in its circuitous course between its headwaters in the Uinta Mountains and its terminus at the Great Salt Lake),  the three Bear River States of Idaho, Utah and Wyoming first began compact negotiations in the 1940s.  After more than a decade of significant study and intense negotiations, the states signed the Bear River Compact in 1955.  Three years later, after consent from the three states’ legislatures and Congress, President Eisenhower signed the Bear River Compact into law on March 17, 1958.

 

The Compact identifies its purposes as:

 

The major purposes of this Compact are to remove the causes of present and future controversy over the distribution and use of the waters of the Bear River; to provide for efficient use of water for multiple purposes; to permit additional development of the water resources of Bear River; to promote interstate comity; and to accomplish an equitable apportionment of the waters of the Bear River among the compacting States.

 

It is important to note that the division of water under the Compact is to and as between the compacting states.  Actual appropriation and usage of water by individuals or entities is made under the direction of and regulated by each state.   Hence, the Compact allocates water to the states and specifies how such waters will be measured and shared, but the states determine how the waters will be used and regulate such usage within their individual states.  The Compact also created the Bear River Commission with specific authorities and responsibilities.

 

Article XIV of the Compact requires:

 

At intervals not exceeding twenty years, the Commission shall review the provisions hereof, and after notice and public hearing, may propose amendments to any such provision, provided, however, that the provisions contained herein shall remain in full force and effect until such proposed amendments have been ratified by the legislatures of the signatory States and consented to by Congress.

 

After administration under the Compact for a dozen or so years, the states began to recognize a need for refinements.  In 1970 they formally began to discuss potential amendments to the Compact.  These discussions spanned 17 meetings, mixed with additional studies, over a six-year period.  By 1976 the states had agreed to provisions for an amended Compact.  Public hearings were held on proposed amendments in 1976 and 1978 and ratified by the state legislatures in 1979.  After hearings, Congressional approval was given in 1980 and the Amended Bear River Compact was signed into law by President Carter on February 8, 1980.  An informal, but more detailed report on the History of the Bear River Compact, including both the original and amended Compacts, was written by the Commission’s first Engineer-Manager, Wallace Jibson.

 

In 1996, the Commission commenced a 20-year review of the Amended Compact.  It held public meetings in Idaho, Utah and Wyoming and received verbal and written comments.  After compiling and considering the public comment, at its Regular Commission Meeting in November 1997 the Commission found that:

 

                1)  there is no present need to amend the Compact,

                2)  the Commission shall create a Water Quality Committee, and

                3)  the Commission shall add public involvement to the functions of the Records Committee.

 

A summary of the Commission’s findings from its 1997 20-year review effort is found in Findings Concerning the Need for Compact Revision, A Report of the Bear River Commission.

 

It has now been 20 years since the Commission last reviewed the Amended Compact to determine whether it still has the flexibility to accomplish the “equitable apportionment of the waters of the Bear River among the compacting States” and “provide for efficient use of water for multiple purposes” or whether it is in need of amendment.  At its annual meeting in April 2017, the Commission formally decided to begin a review of the Amended Compact.  The Review will consist of an examination of operations and water distribution under the Amended Compact and input from water users, as well as receipt of public comment.  The states will then determine whether or not there are needed changes and if so, whether or not such changes can be met within the boundaries of the Amended Compact (as was found in 1997) or whether amendments to the Compact are warranted.

 

 

Bear River Hydrology

 

The Bear River drains an area of 6,900 square miles in southwestern Wyoming, northern Utah and southeastern Idaho.  Its headwaters are but 90 miles from its mouth, yet it meanders 500 miles in a circuitous course in reaching the Great Salt Lake.  In its travels, it makes five state line crossings in the three states.  The Bear River Basin map shows the major features of the Bear River system.

 

The Bear River is not only the largest tributary to the Great Salt Lake, but is the largest river in the North American Continent that does not flow to an ocean.  Prior to settlement and irrigation development, the annual discharge of the river into the Great Salt Lake averaged an estimated 1,750,000 acre-feet.  Settlement of lands adjacent to the Bear River began in about 1860, and power development began in 1907.  In 1911, Bear Lake was converted into a storage reservoir by constructing inlet and outlet canals connecting the lake and the river.

 

Approximately 500 irrigation organizations own and operate separate irrigation systems in the Basin, supplying irrigation water for half a million acres of land. Five hydroelectric plants are in operation on the main stem of the Bear River.  Bear River water is used for municipal and industrial purposes and supports several wildlife refuges.  Additionally, each year an average of approximately 850,000 acre-feet of Bear River water flows into the Great Salt Lake. 

 

 

Major Provisions of the Compact

 

The Bear River Compact is a document voluntarily negotiated and adopted by the states which establishes the rights and obligations of Idaho, Utah and Wyoming with respect to the waters of the Bear River.  As used herein, Compact refers to provisions established in the Original (1958) and Amended (1980) Compacts.  The Compact:

 

  • Divides the Bear River into three main divisions:  the Upper Division, the Central Division, and the Lower Division, with subdivisions or sections created in the Upper and Central Divisions.  The Compact specifically identifies which river flows and canal diversions are to be assigned to each of the divisions.

  • Apportions the direct flows of the Bear River and its tributaries between Utah and Wyoming in the Upper Division (upstream of Pixley Dam) and between Idaho and Wyoming in the Central Division (Pixley Dam to Stewart Dam).  Allocations are made on a percentage of the “total divertible flow” basis. 

  • Does not specifically allocate the water in the Lower Division between the states of Idaho and Utah.  The Compact does, however, provide a mechanism wherein a Utah water user may allege that because of diversions within Idaho, he is being deprived of water to which he is justly entitled and request distribution across the state line.  If the Commission finds this to be the case, the Commission may declare a water emergency and establish a water delivery schedule in the Lower Division based upon priority of rights without regard to the state line.

  • Specifies that in the Lower Division, Idaho is granted the first right to develop and deplete 125,000 acre-feet.  Utah is granted the second right to develop and deplete 275,000 acre-feet.  The next 150,000 acre-feet of water depletion will be divided equally between Utah and Idaho.  All water in excess of the above allocations will be divided between Utah and Idaho, with Idaho receiving 30 percent and Utah 70 percent.  These allocations include groundwater tributary to the Bear River.

  • Defines the pre-compact storage rights for each of the three states in reservoirs above Bear Lake and established additional rights to store 36,500 acre-feet of Bear River water above Stewart Dam in any water year.  This 36,500 acre-feet of storage is referred to as "Original Compact Storage" and was allocated to each of the states as follows:

            Utah                17,750 acre-feet

            Wyoming         17,750 acre-feet

            Idaho                 1,000 acre-feet

  • Grants additional storage above Bear Lake for 74,500 acre-feet, of which 4,500 acre-feet is granted to Idaho and 35,000 acre-feet is granted both to Utah and Wyoming.  This storage, plus water appropriated (including ground water) and applied to beneficial use after January 1, 1976, is limited to an annual depletion of 28,000 acre-feet, of which Idaho is allocated 2,000 acre-feet and Utah and Wyoming are allocated 13,000 acre-feet each.  This additional storage above Bear Lake will not be allowed when the elevation of Bear Lake is below 5911 feet (Utah Power and Light datum).

  • Reserved a portion of the storage capacity in Bear Lake for irrigation uses downstream from Bear Lake.  This compact-provided-for "irrigation reserve" establishes minimum Bear Lake levels which correspond to upstream storage development, below which Bear Lake cannot be drawn down solely for power generation or other beneficial uses.

  • Provides that water not applied to beneficial use prior to January 1, 1976, including ground water tributary to the Bear River, is allocated on a depletion basis.

  • Directed that the depletion associated with storage and post January 1, 1976, development shall be estimated through a Commission-approved procedure.

 

The provisions of the Compact are carried out by the Commission. Each week, when in regulation, apportionments of Bear River flows are made by the Commission’s Engineer-Manager to each state, and then each state’s respective watermaster or river commissioner divides the water to the users.  The Commission biennially prepares a report of its activities and operations under the Compact.  The Eighteenth Biennial Report, covering the 2013 – 2014 water years, along with all prior reports, can be found on the Commission’s webpage.  Each report has an Overview section followed by a chapter for each of the covered water years.  The Nineteenth Biennial Report, covering water years 2015 – 2016, is in draft form and should be released soon.

 

 

Bear River Commission

 

The Bear River Commission was created by the Bear River Compact.  Article III provides:

 

A. There is hereby created an interstate administrative agency to be known as the `Bear River Commission' which is hereby constituted a legal entity and in such name shall exercise the powers hereinafter specified.  The Commission shall be composed of nine Commissioners, three Commissioners representing each signatory State, and if appointed by the President, one additional Commissioner representing the United States of America who shall serve as chairman, without vote.  Each Commissioner, except the chairman, shall have one vote.  The State Commissioners shall be selected in accordance with State law.  Six Commissioners who shall include two Commissioners from each State shall constitute a quorum.  The vote of at least two-thirds of the Commissioners when a quorum is present shall be necessary for the action of the Commission.

 

Pursuant to the Compact, the state Commissioners are “selected in accordance with State law.”  For each state the applicable laws are:

 

Wyoming

The applicable Wyoming law is as follows:

 

41-11-202.  The Governor of Wyoming shall appoint and designate such commissioners as may be necessary to represent the State of Wyoming on all negotiated interstate compacts, unless the compacts by their terms otherwise provide.  The Governor of Wyoming, at his option, may serve as a commissioner for Wyoming on any compact commission, if permitted under the terms of the compact.  The Governor may remove any commissioner he appoints as provided in W.S. 9‑1‑202.

 

Historically, the Governor of Wyoming has generally named at least one alternate Commissioner.

 

Utah

The applicable Utah law is as follows:

 

73-16-4.  There shall be three members of the Bear River Compact Commission from the State of Utah.  One member shall be the Interstate Stream Commissioner of Utah and he shall be chairman of the Utah delegation.  The other two Commissioners from Utah shall be appointed by the State Water and Power Board, with the consent of the Governor, and they shall hold office at the pleasure of the Water and Power Board and until their successors shall have been appointed and qualified.  Each member shall be a bona fide resident of the State of Utah and one shall be a landowner and irrigator actually residing on and operating a farm within the Lower Division as defined by the Compact, and one shall be a landowner and irrigator actually residing on and operating a farm within the Upper Division as defined by the Compact.

 

The Utah Water and Power Board may, with the consent of the Governor, appoint two alternate members of the Bear River Commission.  One such alternate shall be a bona fide resident of the State of Utah and a landowner and irrigator actually residing on and operating a farm within the Lower Division as defined by the Compact and he shall be entitled to act at all regular and special meetings of the Bear River Commission whenever the regular member of the Commission from this same area is unable to serve and act.  One such alternate shall be a bona fide resident of the State of Utah and shall be a landowner and irrigator actually residing on and operating a farm within the Upper Division as defined by the Compact and he shall be entitled to act at all regular and special meetings of the Bear River Commission whenever the regular member of the Commission from this same area is unable to serve and act.  Each member of the Commission from Utah shall receive a per diem plus necessary expenses, as provided by law.

 

Idaho

The applicable Idaho law is as follows:

 

42-3501.  Bear River Compact commissioners — Appointment. The governor of the state of Idaho is hereby authorized and directed to appoint three (3) commissioners to represent the state of Idaho on a joint commission to be composed of three (3) commissioners from each of the states of Idaho, Utah, and Wyoming and one (1) commissioner that may be appointed to represent the United States of America, the said joint commission to be constituted for the purpose of administration of the Bear River Compact.

 

42-3502. Qualifications of commissioners of Bear River Compact.  ─ Two (2) of the commissioners shall be electors of the state of Idaho who are residents within the watershed of the Bear River in Idaho.  One (1) commissioner may be the director of the department of water resources of the state of Idaho.

 

42-3503.  Terms of Bear River Compact commissioners ─ Filling vacancies.  ─ The appointment of each commissioner shall be for a six (6) year term but may be terminated at the pleasure of the governor:   Provided that the appointments of the commissioners first appointed shall terminate at two (2) year intervals beginning with the end of the first even numbered year after the Bear River Compact goes into effect.  Vacancies shall be filled for the unexpired term in which the vacancy occurs.

 

Federal

Pursuant to Article III of the Compact, the Federal Commissioner is appointed by the President.

 

As can be seen from the above, the Compact gives the Commission no authority to nominate or appoint its membership.  The Commission is a creation of the three states and the federal government and these entities, pursuant to their laws, appoint their representatives.

 

Under the Compact, the Commission has adopted a set of By-Laws.  Much of the work of the Commission is carried out by the Engineer-Manager under the direction of the Commission.  The Commission has a Chair (appointed by the President) and Vice Chair, Secretary and Treasurer, each elected or appointed by the Commission.  The Commission has established four standing committees as follows:

 

Management Committee

Operations Committee

Records and Public Involvement Committee

Water Quality Committee

 

It has also established a special Technical Advisory Committee.  The committees have duties as assigned by the Commission.  The Management Committee, Operations Committee and Records and Public Involvement Committee are composed of Commissioners.  The Water Quality Committee is composed of state water quality agency leads, and the Technical Advisory Committee consists of technical professionals assigned by their respective states.

 

The Commission usually meets twice each year, generally the third Tuesday of April and the Tuesday preceding the week of Thanksgiving, and the committees often meet in conjunction with the Commission meetings.  The Commission maintains an office and a website (bearrivercommission.org) where key documents relative to the Compact and its administration can be found.

 

 

20-Year Review/Public Comments (2017)

 

In its April 2017 meeeting, the Commission formally initiated a review of the Amended Bear River Compact.  As part of this process, the Commission is requesting comment from water users and the public.  During the last review, though some cited concerns, the majority of commenters indicated that there was no need to amend the Compact.  Some of the comments requesting change centered around recognizing water quality concerns as a priority, while others requested the inclusion of a broader audience in Commission activities.  After consideration, the Commission determined that these two needs could be met through changes to the Commission’s By-Laws.  The Commission also received comments which showed a lack of understanding of the authorities and roles of the Commission and the Compact. 

 

As part of the review effort, the Commission has scheduled a series of public meetings around the Bear River Basin as follows:

 

20-Year Compact Review - Schedule of Public Meetings
Location Date/Time Address
Evanston, Wyoming Tuesday, October 3, 7:00 p.m.

Uinta County Library

701 Main Street

Evanston, WY 82930

Logan, Utah

Tuesday, October 10, 7:00 p.m.

Cache County Adminstration Building

179 North Main Street

Logan, UT 84321

Grace, Idaho Wednesday, October 11, 7:00 p.m.

Grace American Legion Hall

105 North 1st West (corner of 1st N and 1st W)

Grace, ID  83241

Montpelier, Idaho Thursday, October 12, 7:00 p.m.

Oregon/California Trail Center

320 North 4th Street

Montpelier, ID 83254

Salt Lake City, Utah

Thursday, November 2, 7:00 p.m.

Utah DNR Building

1594 W. North Temple Street

Salt Lake City, UT 84116

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The general format of the public meetings will include an opening statement as to the purposes of the 20-year Compact review, a short presentation on the Commission and its roles, and the major provisions of the Compact.  There will be an opportunity for attendees to ask questions, after which those wishing to provide oral comment will be invited to do so.  Written comment will also be accepted at the public meetings.  There is no requirement to participate in the public meetings in order to provide written comment.  Whether or not individuals or organizations provide oral comment, all will be strongly encouraged to provide written comment.  In order to be considered timely, all written comments must be received at the Commission’s office by 5:00 p.m. on Monday, December 4, 2017.  Written comments should be addressed to:

 

Bear River Commission

RE:  20-Year Compact Review

106 West 500 South, Suite 101

Bountiful, Utah  84010

 

Or via email to:

 

review@bearrivercommission.org

 

In this review process, the Commission requests that commenters become informed regarding the Commission and its roles and authorities, as well as the purposes and authorities of the Amended Bear River Compact.  If one believes that the Compact should be amended, the Commission asks that the comments be as specific as possible regarding the need for change and the proposed amendments to the Compact.

 

Following the comment deadline, the Commission will compile the comments and they will be reviewed by the states.  Depending on the substance of the comments and the findings of the states, the states will determine the next step(s) to be taken in the Review process.  The Commission and the states are entering this process without any preconceived notion as to whether or not there is a need for changes and if there is, whether such changes can be met within the parameters of the existing Compact or whether they will require amendments to the Compact.  Therefore, at this juncture in time the Commission cannot forecast what step(s) in the Review process may be taken after receiving and reviewing the public comments.  It is important to remember that the negotiating parties relative to any potential amendments to the Compact are the three signatory states, and the public comment process is being employed as a tool by the states to inform them of changes that may be needed.

 

Should you have any questions regarding this 20-Year Compact Review effort, please contact:

 

Idaho Utah Wyoming Commission
Jeff Peppersack Todd Adams Beth Callaway Don Barnett
208-287-4948 801-538-7272 307-777-7803 801-292-4662
jeff.peppersack@idwr.idaho.gov toddadams@utah.gov beth.callaway@wyo.gov review@bearrivercommission.org

 

 

Amending the Compact

 

As indicated above, there is no preconceived notion as to whether or not the Compact needs to be amended.  However, if the signatory states to the Compact were to determine that it needs to be amended, among others, the following general steps would be required:

 

  • The states would study potential amendments.
  • If the potential amendments appear to have merit, the states would seek permission from Congress to enter into formal compact negotiations.
  • The states would then negotiate potential amendments.
  • Once amendments were agreed to, the Commission would hold public hearings on the proposed changes.
  • Following the public hearings, if acceptable to all three states, state representatives would sign the proposed amendments.
  • The amendments would then be sent to each of the three state legislatures, in the form of bills, for review and approval (there may be additional hearings).
  • Once these bills have passed the respective legislatures, they would require the signature of the respective governors before becoming law.
  • Once ratified by the three state legislatures and signed by the governors, the proposed amendments would be submitted to the U.S. Congress in the form of a bill.  The House and/or Senate may elect to hold public hearings.  Once approved by both houses, the consenting legislation would be sent to the President.
  • Once the consenting legislation is signed by the President, the amendments would become effective.

 

As can be seen, amending a compact is a fairly involved and formal process.  The Amended Bear River Compact required ten years from the initiation of negotiations to the signing of it into law by the President.  Any amendments would require approval of all three states, ratification by their respective legislatures and approval by all three governors, as well as consent by Congress and approval by the President.