In hot water

Fights over water rights affecting local development

By KATHLEEN O'NEIL
koneil@postregister.com

Before Kevin Taggart can add 30 homes to Timberline Estates, his development north of Idaho Falls, he needs permission from water users 170 miles away.

His plans have been held up for nearly six months while two Twin Falls canal companies challenge his application to dig a well. Taggart needs the well to provide water to the development near Hitt Road and U.S. Highway 26.

His application is one of the first residential ones in eastern Idaho the Twin Falls companies have fought. But with Idaho experiencing a severe drought and the Snake River Plain aquifer dwindling, it won't be the last as farmers and others downstream fight for their share of water.

Senior water users from the Twin Falls area are protesting almost every application to drill new groundwater wells here -- including those for housing developments. They want proof that any new wells drilled won't reduce the water they're entitled to from the Snake River.

That means eastern Idaho developers like Taggart can no longer assume they'll be able to drill wells for the water they need. It also raises questions about whether the lack of water will stunt growth in eastern Idaho and harm our economy.

"It's holding everybody up," Taggart said. "It's frustrating."

The water situation has gotten so bad that Ron Warner, a water rights supervisor for the Idaho Department of Water Resources, warns developers their applications won't automatically be approved, as they usually had been.

"In the past, we used to have a few challenges -- to keep them honest," Warner said. "Now they challenge everything."

An attorney for the Twin Falls group says it's necessary because downstream irrigators have already seen their water drop by as much as 40 percent.

That's partly due to the drought and more efficient irrigation, which sends less river water into the aquifer. But the Twin Falls users also blame pumping from wells in eastern Idaho for the low aquifer levels.

Less water in the aquifer causes less water to flow through springs into the Snake River, which means less is reaching Twin Falls irrigators.

"We're concerned about any further development to the Eastern Snake Plain Aquifer that will result in a depletion to the section of the Snake River where my clients get their water," said Travis Thompson, an attorney who represents the Twin Falls and North Side canal companies.

The water battle worsened when senior water users in the Twin Falls area threatened to put out a call on water. If that were to happen, all junior users (those who began using the water later) would have to shut off their wells to make sure stream flow return to past levels.

The Idaho Legislature has stepped in to try to negotiate a deal between junior and senior water users. It has proposed issuing as much as $100 million in bonds to buy out junior users.

While lawmakers try to find a solution, Taggart and the Falls Water Company, another groundwater applicant facing a protest, are spending thousands of dollars to make sure they have enough water to serve eastern Idahoans not linked to city water supplies.

Scott Bruce, manager of Falls Water, which serves about 2,500 customers mostly in subdivisions in unincorporated areas of Bonneville County, said they like to have enough extra water to allow for five years of growth.

However, a sudden boom in home building from about 60 homes a year to more than 230 over the past two years has left the company with enough capacity for the construction already planned in the next three years.

"Basically, if we don't get more water rights, we'll have to say, 'Sorry, we can't serve you,' " to any new developers, Bruce said.

A lawyer representing Taggart and Falls Water Co. is scheduled to have a prehearing meeting on Monday with a lawyer representing the protesting canal companies and the Department of Water Resources. All parties say they're optimistic they will reach an agreement.

But developers who don't may decide to give up or dig a well for each house.

Single-family wells cannot be challenged because they are not required to apply for a water right (legal permission to use water). But there are restraints though on where wells can be drilled in subdivisions, particularly on half-acre lots that use septic systems.

Installing that many wells could reduce the number of houses a developer could build. It also would water quality and public health issues, Warner said.

"A community well is drilled about four times deeper, it's engineered and designed by a professional, is screened all the way down, and is tested regularly," he said. "It's the difference between a Yugo and a Mercedes Benz."

Warner hasn't seen developers put in individual wells yet, he said, because the issue is still new. Increasing lot sizes to allow more room for individual wells would not necessarily help, he said, because state law only allows domestic water wells to be used to irrigate up to half an acre.

The issue is not just affecting developers and farmers.

Increasingly, cities and towns are realizing they will face the same fight and the need to provide mitigation to downstream users if they want to get new wells drilled, said Gary Spackman, chief of the Department of Water Resources allocation bureau.

To ensure the most reliable supply, they may have to buy up existing groundwater rights so they don't have to turn their wells off to make sure senior water users get their water in another drought.

The cost of a water right varies widely, depending on its location and what it was used for -- estimates range from $1,000 to $4,000 an acre. Unlike agricultural, domestic, and commercial water users who must use a water right within five years to avoid losing it, state law allows municipalities to buy and keep water rights until they need them.

"They should consider it, because they'll be required to mitigate along with everybody else," Spackman said. "I think they're being responsible, even though it'll cost them money to buy up rights."

David Richards, Idaho Falls' water superintendent, said the city has enough water for a while from its existing 18 wells, but is still hoping to put in two more.

But until it can, the city is looking at ways to use water more efficiently, he said, and may eventually consider metering more or all water- users.

"We're just waiting to see how this pending agreement works out," Richards said. "Fortunately, we're in a good position for the short term."

Are we out of water?

It depends on your perspective. There are two sources of water in Idaho: surface water, which is diverted out of a river or stream, and groundwater, which is pumped out of the aquifer.

The Snake River Plain Aquifer still holds trillions of gallons of water -- as much as Lake Erie. However, the flow out of the aquifer into springs that feed the Snake River has dropped steadily since the 1950s. That's because farmers are no longer adding water to the aquifer from flood irrigation, and less water goes in and out of the ground during a drought.

People who use the spring water, particularly fish farmers in Twin Falls, want a steady stream of water to flow out of the aquifer. Groundwater pumpers would rather be able to continue to tap into the aquifer with deeper wells as it temporarily drops.

To ensure spring waters still get their flows without stopping all groundwater pumping, the well users have proposed mitigation. That could include giving spring-water users replacement water from renting unused surface water, or digging them a new well.

What the mitigations will be is still being negotiated by the two groups, with the aid of the Idaho Legislature, the Department of Water Resources and the state Attorney General's Office.

What's a water right?

Like other Western states, the first settlers in Idaho acquired a right to a certain amount of water simply by using it for something beneficial. That's different than in Eastern states. There, people have a right to use water that flows through or by their land -- the water right comes with the property.

That's not the case in Idaho. There is no water associated with land unless it was acquired. The water right can later be sold or transferred to another property.

In times of water shortages, water users with the oldest rights are given all the water they are entitled to, or can use, before newer water rights are filled.

To get a water right, people have to apply to the Department of Water Resources, which determines whether there's enough water in the system and whether other water users will be harmed. It imposed moratoriums on creating new groundwater rights on the Snake River Plain Aquifer, with exceptions for domestic use, in the early 1990s.