MOU_Burns_Bench_Carriage_Agreement.pdf

1. BACKGROUND

MEMORANDUM OF UNDERSTANDING

AMONG

THE UNITED STATES BUREAU OF RECLAMATION,

THE UINTAH WATER CONSERVANCY DISTRICT

AND

THE BURNS BENCH IRRIGATION COMPANY

TO

DELIVER WATER TO STEWART LAKE

The United States Bureau of Reclamation (Reclamation) constructed the ·Jensen Unit of the Central Utah Project (Project) to serve M&l and supplemental irrigation water ne·eds in the area of Jensen, Utah. Water from the Project flows through Mancos shale formations and· soils, which are naturally high in salt and selenium. As a result, irrigation drain flows from the Project• may have contributed to hig_h selenlum -levels in the Stewart Lake Waterfowl Management Area (Stewart Lake). Reclamation has committed to provide a long-term clean water supply of 1,000 acre-feet per year to Stewart Lake. Reclamation has also committed, pn a temporary (short-term not to exceed 5-10 years) basjs, to supply an additional 1,500 acre-feet per year during the cleanup construction period, as it is available and beneficial for flushing Stewart Lake sediments.

The Uintah Water Conservancy District (District) operates the Jensen Unit of the Central Utah Project.

The s·ums Bench Irrigation Company (Company) diverts both private and Project water from Brush Creek and supplies Irrigation water to its water users.

Jensen Unit Irrigation Water Supply. The total Irrigation water supply from the Jensen Unit of the Central Utah Project is 4,800 acre feet. Under Section 207 of CUPCA, 220 acre-feet of that

. irrigation water was permanently returned by the water users In the Sunshine Canal Company.

The Fish and Wildlife Service (Service), in consultation with the lnteragency Biological Assessment Team, decides how water returned under Section 207 will be used. The Service has agreed to dedicate the 220 acre-feet of irrigation water available for a water supply to Stewart Lake. This leaves an additional 780 acre-feet (1,000 acre-feet minus 220 acre-feet) of water for Reclamation to supply to Stewart Lake on a long-term basis.

Jensen Unjt M&I Water Sugply. The M&I water supply from the Jensen Unit was planned to be 18,000 acre-feet. Twelve. thousand acre-feet of that water supply was not developed because the Bums Bench Pumping Plant (a project feature described In the Jensen Unit DPR) was never constructed. Six thousand acre-feet of the M&I supply was developed. Initially, a block notice for 61000 acre-feet was issued allowing the Di~trlct to begin taking delivery of that block of water and to start repayment of the obligation associated with that block. There was, however, insufficient demand for a. block of water that large and an accompanying insufficient' source of revenue to pay the obligation.

Section 2Q3(g) of CUPCA. Section 203(g) of CUPCA remedied the situation. Under Section 203(g), the Secretary was authorized to enter into Ameridatory Contract No. 6-05-01-000143 with the District to relieve them of 4,000 acre-feet of its M&I water repayment obligation. That Contract reserves to the United States the unmarketed 4,000 acre-feet of developed O&M water and the 12,000 acre-feet of undeveloped Project M&I water for marketing by the Secretary. The District shall have the ·right of first refusal to acquire both the remaining unmarketed 4,000 acre feet of deve,loped M&I water and the 12,000 acre-feet of undeveloped M&I water. That contract also delayed the construction of the Bums Pumping Plant until such time as the demand develops for the additional 12,000 acre-feet of M&I water. The Burns Pumping Plant also was designed to pump water from the Green River to Stewart Lake through the Bums Bench Canal to meet the Jen~en Unit NEPA commitment to provide water to Stewart Lake.

_ Reclamatjon Use of Surplus M&I Supply at Stewart Lake. At the present time.there are no users for the 4.,000 acre-feet of developed M&I water and It remains surplus .to the needs of the Jensen Unit. It is Reclamation's intention to use a portion of this surplus water supply to provide water to Stewart Lake; During the temporary study period, Reclamation will supply up to 2,280 acre-feet from this surplus water (1,500 acre-feet pl'us 7B0·acre-feet). Beyond the study period, Reclamation will continue to provide 780 acre-feet from the SL!rplus. It Is anticipated that the M&I demand from the Jensen Unit wil,I develop 'incrementally--ln a series of small blocks. Until a portion of the 2,280 acre-feet or the 780 acre-feet is required to meet M&I demand, Reclamation will continue to use the surplus water to meet Its obligations to supply water to Stewart Lake.

When a ,portion of the 2,280 or 780 acre-foot blocks is required to meet M&l demand; .

Reclamation will discontinue delivery of that portion to Stewart .Lake and will seek and use other water sources to meet its Stewart Lake water supply obligations.

use of Surplus Water Does Not Constitute a Reallocation of Water Supply. It ls important to

• note that the temporary use of surplus water as described herein does not constitute a reallocation of the Jensen Unit water supply and associated costs of cohstruction or O&M. If and when a reallocation of ~ensen Unit costs occurs, the use of the surplus water at Stewart Lake may be considered In the reallocation; however, until that time, the delivery of Jensen Unit M&I water to Stewart Lake remains a temporary use of water that is surplus to the project.

Under the Drought Relief Program (Public Law 102-250), funds were approved in 1993 for supplying water to Stewart Lake during drought conditions. A pipeline was constructed to deliver water to Stewart Lake from the end of the Burm, Bench-Canal, along with a desilting structure at the diversion: This pipeline is referred to as the Stewart Lake Lateral.

Under Public Law 104-20, Reclamation is funding salinity Improvement projects within the Colorado River Basin. The Bums Bench Canal Sallnlty Improvement Proposal has been accepted for Implementation. An agreement is concurrently being negotiated to replace the Burns Bench Canal with a pipeline to reduce salinity (Burns Bench Salinity Improvement Project Agreement), and to increase the capacity by five cfs over that needed for irrigation, to deliver water to Stewart Lake. •

Under Public Law 105-245, Reclamation may apply its Departmental Irrigation Drainage • Program (IDP) funds in a non-reimbursable (expenditures need not be reimbursed by the Project water users) manner to meet program objectives; so, in order to meet its obligation to provide water to Stewart Lake, Reclamation has proposed to increase the capacity of the Burns Bench Salinity Improvement Project pipeline, as explained above. The additional capacity will allow

• Reclamation to deliver water to ~tewart Lake through the Burns Bench Salinity Improvement Project Pipeline and the Stewart Lake Lateral.

Reclamation has committed to provide a long-term water- supply of 1,000 acre-feet per year to Stewart Lake. Reclamatior has sufficient water rights to provide 1,000 acre-feet of water for mostly non-consumptive use at Stewart Lake. This water will be delivered to the head of the Burns Bench Pipeline. During the next five to ten year clean-up phase at Stewart Lake, Reclamation may also provide an additional, temporary.water supply not to exceed 1,500 acre feet per year (2,500 total) to Stewart Lake. This additional water will temporarily be used to facilitate flushing Stewart Lake and cleaning up Stewart Lake sediments.

2. PURPOSE

This Agreement describes the partnership among Reclamation, the. District, and the Company that will make delivery of a water supply to Stewart Lake through the proposed enlarged Burns Bench Pipeline possible.

3. PROJECT DESCRIPTION

The Bums Bench Canal is located in Uintah County, In and around Jensen, Utah. The proposed method of salinity Improvement under the Burns Bench Salinity Improvement Project Agreement and associated fuhding is to replace the Bums Bench Canal with a plpellne. Under that Salinity Agreement, the Company will increase the capacity of the entire proposed salinity pipeline by 5 cfs over the size needed to meet the requirements of the Burns Bench Irrigation Company (as Initially designed· by the Contractor). The Bums Bench pipe.line system will be designed and constructed to Include sufficient capacity for 1,000 acre-feet of water to be delivered each year to Stewart Lake at a minimum of 5 cfs during the normal irrigation season (April 15 to October

31) and up to 10 cfs on a space-avallable basis from February 15 to October 31. The system will be designed for cold weather operation.

4. AGREEMENTS

There are three separate agreements pertaining to Reclamation's cooperating with the Bums Bench Irrigation Company in replacing their canal with a pipeline to reduce salinity under an approved .. Salinlty Improvement Proposal, and to increase the capacity by five cfs over that needed for Irrigation, to deliver water to Stewart Lake. These agreements are needed to meet Reclamation's legal contracting _requirements, as detennined by legal council.

4.1. Cooperative Agreement between the United States Bureau of Reclamation and the Burns Bench Irrigation Company for work associated with the Burns Bench Salinity Improvement Project and Stewart Lake water supply. This agreement obligates funding for construction of the Salinity pipeline and the 5 cf:s enlargement to make it possible for the Burns Bench Irrigation Company to deliver water to Stewart Lake for Reclamation.

4.2. Contract between the United States Bureau of Recl~matlon, and th~ Burns Bench Irrigation Company to deliver water to Stewart Lake (Water Delivery Contract). This agreement obiigates funding for the· annual operation, maintenance, and replacement costs for Reclamation's prorated proportion of total expenses for the Burns Bench Irrigation Company to operate the new enlarged salinity pipeline and deliver water to Stewart Lake for Reclamation.

The contract will be renewed every five years upon the same terms and conditions, with Reclamation paying the same Burns Bench per acre-foot assessment as that assessed to Company shareholders (plus the Jensen Unit equivalent per acre-foot assessment and off season delivery charge described below).

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4.3. This Memorandum of Understanding (MOU) among the United States Bureau of Reclamation, the Uintah Water Conservancy District and the Burns Bench Irrigation Company to deliver water to Stewart Lake. This MOU ties all three agreements together and spells-out more comprehensively the overall intent and good faith of the three agencies to work together for everyone's mutual benefit.

5. AGREEMENT

5.1. Bureau of Reclamation. Reclamation will:

5.1.a. Provide Egujvaleot Operation. Maintenance. and Replacement ·coM&R) f unds to the Company. Reclamation will reimburse the Company for all costs Incurred in delivering water to Stewart Lake. Reclamation's annual assessment will be based upon the following:

5.1.a.1. One Thousand Acre-foot Base. Regardless of how little water Reclamation requests and receives in one year, it will pay as if It had received 1,000 acre-feet. In other words, Reclamation's minimum annual payment will be based upon 1,000 acre-feet delivery to Stewart Lake. •

5.1.a.2. Bums Bench Per Acre-foot Assessment. For the 1,000 acre-foot base and for each acre-foot of additional temporary water (up to an additional 1,500 acre-feet), Reclamation will pay to the Company an amount equal to the per acre-foot equivalent of the OM&R charge assessed to Company shareholders by the Company. The Company assessment is levied against shares (304 Primary shares total). Each share represents 11.56 acre-feet. As a result, Reclamation's per acre-foot assessment shall be equal to the amount assessed by the company

• per share divided by 11.56. For example, the FY 2000 assessment per share is $43.00. • Recla~ation's per acre-foot assessment would be $3.72 ($43.00/11.56).

5.1.a.3. Jensen Unit Egyjva!ent Per Acre-foot Assessment. For the 1,000 acre-foot base and for each acre-foot of additional temporary water (up to an additional 1,500 acre-feet), Reclamation will pay the equivalent per acre-foot O&M charge assessed against Jensen Unit Project Water. For example, the FY 2000 assessment per acre-foot is $1.50.

5.1.a.4. Off-Season Delivery Charge. For each month or portion of a month outside the regular irrigation season (between February 15 and April 15) during which Reclamation calls for and takes delivery of water, Reclamation will pay the actual additional costs associated with that delivery. The anticipated off-season request period for water is between February 15 and April 15 as weather conditions permit. Any request for water delivery outside of that pertod, and the regular irrigation season, would be negotiated on a case-by-case basis by the U~h Division of Wildlife Resources, and would be subject to the oversight and final approval of Reclamation.

The off-season delivery charge is equal to the prorated monthly cost required to pay the ditch rider during the off-season delivery period and any oth~r costs resulting from off-season delivery . . For example, the current cost is estimated to be $1,200 per month. If Reclamation were to take delivery beginning on March 1 (one and one-half months before the irrigation season begins-), Reclamation ~ould pay $1,200 for the full month and an additional $600 for the portion (1/2) of the month during which the ditch rider's work was required. Depending upon weather conditions, request for water delivery to Stewart Lake may start as early as February 15.

5.1.a.5. Payment of Water Delivery Assessments and Deadlines. Reclamation will ensure that payment is made to the C<;Smpany within forty five days of billing by the Company.

5.1.a.6. Examples of Reclamation Assessments.

5.1.a.6.a. Example 1 - Reclamation takes delivery of only 900 acre-feet, all deliveries are during the irrigation season. Based upon fiscal year 2000 assessments, Reclamation would pay $3,720 (1,000 acre-feet* $3.72) in Company per acre-foot assessments, and $1,500 (1,000 acre-feet* $1.50) in Jensen Unit equivalent per acre-foot assessments. The total payment would be $5,220.

5.1.a.6.b. Example 2 - Reclamation takes delivery of 1,000 acre-feet, a portion of which is delivered during three weeks before the irrigation season starts. Based upon fiscal year 2000 assessments, Reclamation would pay $3,720 (1,000 acre-feet* $3.72) in Company per acre-foot assessments, $1,500 (1000 acre-feet* $1.50) In Jensen Unit equivalent per acre-foot assessments, and $900 for the off-season deliveries (three/fourths of a month at $1,200 per month). The total payment would be $6,120. .

5.1.a.6.c. Example 3 - Reclamation takes delivery of 2,500 acre-feet, a portion of which is delivered during six weeks before the irrigation season. Based upon fiscal year 2000 assessments, Reclamatlon would pay $9,300 (2,500 acre-feet'* $3.72) in Company per acre-foot assessments, $3,750 (2500 acre-feet * $1.50) in Jensen Unit equivalent per acre-foot .

assessments, and $1,800 for the off-season deliveries between March 1 and April 15 ( 1.5 * $1,200). The total payment would be $14,850.

5.1.b. Notification of Proposed Delivery Schedule. Inform the Company of the volume and timing of water to be delivered to Stewart Lake. Requests will be made by Reclamation after close coordination with the Utah Division of Wildlife Resources (UDWR) during the interim cleanup efforts at Stewart Lake. Once normal operation of Stewart Lake occurs after cleanup efforts are complete, Reclamation may delegate the UDWR to work directly with the Company In requesting water deliveries to Stewart Lake. Requests for water will be estimated each spring by February 1 far the year, but actual requests will be on a call basis, as they are for irrigators.

5.1.c. Stewart Lake Water Measuring Instruments. Install meters, as necessary, to accurately measure water deliveries to Stewart Lake. (The existing meters on Stewart Lake Lateral do not function property at the current time due to debris In the canal. With the installation of the pipeline, however, the existing meters should function properly.)

5.1.d. Major Maintenance or B$lpair of the Stewart Lake Lateral. During the first five years of water delivery to Stewart Lake through the Stewart Lake Lateral, Reclamation shall perform any major maintenance or repair of the Stewart Lake Lateral (lateral). It Is believed there may be sticks and debris caught at sharp elbows ln the Lat~ral, li'miting the capacity. The Lateral will be tested/checked as necessary to determine proper capacity and operation, and cleaned or repaired as necessary. After the first five years, the District shall be responsible to perform any major maintenance or repair of the Stewart Lake Lateral.

5.1.e. Use of Excess Capacjty. As requested by the Company, provide use of the 5 cfs capacity reserved for delivery of the Stewart Lake Water Supply to the Company for its use on a space avaiiable basis.

5.2 Uintah Water Conservancy District. The District will:

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5.2.a. Deliver waters ordered by Reclamation (or its designee) in accordance with Sections 5.1.b. and 5.3.b.

5.2.b Review of Reclamation Obligations. Upon receipt of assessment billing for water delivery costs from the Company, the District shall review the biJling and give to the Company and • Reclamation its view on the accuracy -and correctness (based upon Section 5.1.a.) of the billing, within 15 days of receipt.

5.2.c. Major Maintenance or Repair of the Stewart Lake Lateral. After the first five years of delivery of water to Stewart Lake, the District shall be responsible to perform any major maintenance or repair of the Stewart Lake Lateral.

5.3. Burns Bench Canal Company. The_ Company will:

5.3.a. Operation; Maintenance and Repl.acement (OM&R). Fund and perform all future OM&R of the water distribution system, and related features, at no additional cost to the Federal Government, except the annual equivalent OM&R costs as outlined In Section 5.1.a. Thes~ features include the Burns Bench Pipeline, the Bums Bench Diversion, the Burns Bench Diversion Desilting Structure, and the Stewart Lake Lateral. Reclamation and/or the District shall perform any major maintenance or repair of the Stewart Lake Lateral as described above, but normal operation and maintena.nce shall be the responsibility of the Company. Operation and maintenance shall be in a prompt manner to assure that the Project's salinity improvement benefits are realized to the best extent possible, as well as the requested water supplies are delivered to Stewart Lake. The Company will submit an annual report of total OM&R costs for each year to the District and Reclamation, along with the assessment of costs to Reclamation, In accordance with Section 5.1.a. Based upon Reclamation's request and receipt of water deliveries, the C.ompany shall invoice Recl~mation, with a copy to the District, for the year's equivalent OM&R costs by October 1 of each year. The Company will allow Reclamation forty five days to ensure that funds have b~en transferred.

5.3.b. Stewart Lake Deliveries. Deliver 1,000 acre-feet long-term [and up to an additional 1,500 acre-feet temporarlly (2,500 acre-feet total)] of water to Stewart Lake each year through the Burns Bench Pipeline and Stewart Lake Lateral, as requested by Reclamation (or Its designee) as described In Sections 5.1.a. and 5.1.b. Delivery shall be at a rate of 5 cfs but may increase to 10 cfs between February 15 and October 31 if space is available in the system and If weather conditions permit. The Pipeline will be designed to operate in cold weather (Section 3.).

5.3.c.• Notification of Shareholder Meetjngs. The Company will notify Reclamation and the District of any shareholder meetings in a timely fashion and allow them to attend and participate in the meetings. Neither Reclamation nor the District shall have voting rights in the Company.

6. PERIOD OF PERFORMANCE

6.1. Water Deljveiy. The Company will deliver water, per this Agreement, as long as a Water Delivery Contract is in place, or In the absence of a Contract, the Company Is reasonably certain that payment of assessments will be forthcoming. The duration of this Agreement shall be from the date of signing for as long as necessary, up to 50 years.

6.2. Water peljyeiy Contract. The Water Delivery Contract which obligates funding will be for a term of five years and may be renewed/extended every five years dependent upon mutual agreement of the parties to ·that Contract. The Contract may be reissued with the same t~rms and conditions every 5 years for as long as the parties are In agreement (as long as 50 years).

7. FUNDING

Reclamation's projected fund needs associated with the Stewart Lake Water Supply are presently estimated to be up to $80,000 for the next 5-year agreement period, but all funding· commitments will be covered In the Water Delivery Contract. The expenditure of any future money or the performance of any work by the United States herelmder, which may require future appropriations of money by the Congress or the allotment of funds, shall be contingent upon such appropriation or allotments being made. The failure of the Congress to so appropriate funds or the absence of any allotment of funds shall not relieve the Company from any prior obligation under this MOU, and no liability shall accrue to the United States in case such funds are not appropriated or allotted.

8. TERMINATION

This agreement may not·be terminated unless all parties are in agreement.

9 . • KEY TECHNICAL REPRESENTATIVES

The parties respectively designate the following persons to act as Key Technical representatives In matters and decisions pertaining to the timely performance under this Agreement:

For the Company:

Boyd Snow (435) 789-0295 President, Bums Bench Irrigation Company 6805 South 8000 East Jensen, Utah 84035

For the District:

Scott Ruppe (435) 789-1651 • Manager, Uintah Water Conservancy District 78 West 3325" North Vernal, Utah 84078 Fax: (435) 789-1670

For Reclamation:

Stephen Noyes (801) 379-1032 Project Team Leader Bureau of Reclamation Provo Area Office 302 East 1860 South Provo UT 84606-7317 Fax: (801) 379-1159

Each party may designate a successor authorized ,technical representative upon written notice to the other parties, or as designated In each task order.

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10. MISCELLANEOUS PROVISIONS

10.1. Assignment. This Agreement shall not be assignable by any party without the prior written consent. of the other parties. Subject to this llmltatlon on assignment, this Agreement shall be binding upon and shall Inure to the benefit of the parties' respective successors, agents and assignees. •

10.2. Severablllty. The provisions of this Agreement are severable, and the invalidity or unenforceabillty of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions.

10.3. Authority. Each party warrants that the person signing this Agreement on its behalf has been duly authorized to execute this Agreement on Its behalf.

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SIGNATORY PAGE

For the Company:

P£tiums ~Company ~ -17'-"'

Date

6 - 1 '.1- N')O() Conservancy District Date

For Reclamation: Approved:

b..... c: g J -r,,,~ I.....______ _______ _ Bureau of Reclamation m"' Office ofthe Field Sollcltor ·Date

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