Water Wars / Lawmakers are trying to get a handle on a complex issue

The state has appealed a ruling to the state Supreme Court that gives all water to senior rights holders in times of shortages, which could leave eastern Idaho groundwater users high and dry

By COREY TAULE
ctaule@postregister.com

BOISE — It’s been more than a month since a district court judge said Idaho’s administrative rules governing water disputes are unconstitutional.

But time has not provided any clear solutions for those trying to end the war over the acres of water contained in the East Snake Plain Aquifer. That became clear at a legislative panel meeting Wednesday.

Deputy Attorney General Phil Rassier told panel members that because natural river flows will never satisfy the thirst for water in Idaho, Judge Barry Wood’s June 2 ruling places the future of groundwater use in question.

“I can’t overstate the significance of that issue,” he said.

In his ruling, Wood left little doubt as to who is entitled to the water — when water is in short supply, those with senior rights have priority. Junior users get cut off.

“In times of scarcity, administration of water under Idaho’s version of the prior appropriation doctrine is not a user friendly business,” Wood wrote. “To the contrary, it is harsh — there are winners and there are losers.”

Winners are those with senior rights, surface-water users in the Magic Valley.

Losers are those with junior rights, groundwater pumpers in eastern Idaho.

Wood’s ruling isn’t the end of this fight by a long shot. The state countered this week by appealing his ruling to the Idaho Supreme Court.

But that doesn’t make it any easier for lawmakers who are grappling with this issue.

In eastern Idaho, groundwater is essential.

So who uses it?

The cities of Blackfoot, Jerome, Paul and Heyburn, according to Lynn Tominaga, director of the Idaho Groundwater Appropriators Association.

The Jerome Cheese Factory.

Anheuser Busch in Idaho Falls.

And farmers who irrigate hundreds of thousands of acres in eastern Idaho.

Idaho law ensures that domestic users would not get cut off in a shortage.

But that doesn’t mean they won’t be affected.

“They’d still have to pay money or water to the senior users,” Tominaga said.

Wood’s ruling invalidated administrative rules created in 1994 and approved by the Legislature.

The lawsuit dates to 2004, when senior users in the Magic Valley put out a water call in a drought year.

Idaho Department of Water Resources Director Karl Dreher ordered junior users in the American Falls area to curtail use in order to avoid injuring senior users.

But senior users called Dreher’s action unsatisfactory and filed suit in August 2005.

At this point, the state is left in limbo.

Rassier told lawmakers Wednesday it makes sense to wait for the Supreme Court ruling before reacting to Wood’s decision. That could take at least six months.

Also unclear is how the department should proceed in the meantime. Should it continue enforcing rules declared unconstitutional by a sitting judge?

Although Wood’s ruling appears to be a blow to groundwater users, Tominaga said that’s not necessarily the case.

Wood didn’t debunk the idea of a “futile call,” which says a junior user can’t be curtailed if his water couldn’t reach the senior user in a reasonable amount of time.

But Tominaga wasn’t happy that Wood shifted the burden of proof from those making the call to junior users. Essentially, the judge said that if a call is made, the junior water user must prove his water use does not impair someone with a senior right.

“How can a junior user know whether a senior user is injured unless they come in and prove they are injured?” Tominaga said.

Part of the problem is that water disputes are as old as the state itself and one of the most complicated sections of law legislators tackle. Even some of Idaho’s most experienced lawmakers are still trying to understand Wood’s ruling.

Plus, as Rep. Dell Raybould, R-Rexburg, said Wednesday, there’s still the problem of weather. If a groundwater pumper is curtailed, the senior user may not see the water for a couple of years, Raybould said.

By that time, the drought could be over and water once again plentiful.

“These are issues I think the Legislature is going to have to struggle with,” he said.

Reporter Corey Taule can be reached at 542-6754.

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