Rocky Barker: When water flows uphill — toward the money

February 10, 2014 

Idaho Water Resources Director Gary Spackman told lawmakers in January that he might have to order people who pump water out of the Eastern Snake Plain Aquifer to shut off their pumps if we don’t get more snow this winter and spring.

What he didn’t tell them then is that he issued an order Jan. 29 that could force 14 cities, five school districts, farmers who irrigate 157,000 acres of crops and hundreds of other water users to stop pumping even if snow fills Idaho’s mountains.

Ruling in a decade-old dispute, Spackman said he would issue a final order March 14 curtailing water to meet the legal “call” of a Hagerman-area fish farm and feed producer that has senior water rights.

Water rights law is complex. The short version is that the user who holds the oldest right — who started using the water first — is the senior user. That user gets his needs met before junior users. But the Idaho Supreme Court has recognized an equally legitimate competing interest in the Idaho Constitution that water be put to full economic use.

For years, the Rangen Inc. fish farm has argued that the spring waters it depends on have diminished because of farmers irrigating thousands of acres by pumping water from the aquifer that supplies the springs. Today it has actual flows of 16 to 17 cubic feet per second from its 1962 right to 50 cfs.

Wayne Courtney, Rangen’s executive vice president, told The Associated Press that the fish farm has seen “significant” drop-off in recent years.

Models used previously by the state showed that Rangen would not get much more water even if all pumps were shut off. But an updated model now shows that Rangen could get more.

Spackman’s order calls for an additional 9 cfs. Despite arguments from people on both sides of the issue, at the end of the day Idaho law requires farmers, dairies, cities, schools and other junior water users to stop pumping if senior users can’t get the water they have coming.

Because Rangen needs pure, 58-degree spring water for its fish, delivering that water is nearly impossible. Giving Rangen its clean, cold water would mean a cutoff devastating not just to the Magic Valley economy, but to the entire state because of the lost income.

So this week, water lawyers, lawmakers and others were at the Capitol looking for a solution. The easiest and best resolution would be a deal between Rangen and the groundwater users.

“We’re working on a number of options we believe would resolve the Rangen call,” said Lynn Tominaga, executive director of the Idaho Ground Water Appropriators, which represents groundwater and irrigation districts that water 1 million acres of cropland.

In 2012, the groundwater users resolved a similar dispute by buying the rights of three fish hatcheries with 400 cfs of spring water flow for $30 million. That deal took more than 10 years of legal wrangling.

The Idaho Legislature also could get involved, passing a law that subordinates Rangen’s right to the groundwater. But that would be taking Rangen’s property, and the state would have to pay Rangen.

A similar effort was made in the 1980s to subordinate Idaho Power’s Swan Falls Dam water right to junior uses, but it failed.

Simply taking Rangen’s water would not resolve the issue anyway, Tominaga said, because other water users have rights even older than Rangen and could make their own calls.

In the end, the most important fact about water in the West is that it flows toward money. This dispute will eventually be resolved by a determination of the price Rangen will accept.

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