Water experts, state officials and the businesspeople and farmers at the heart of Idaho's most heated water dispute are entering their third week of testimony in a case that could dictate how the state uses one of its most precious resources in the future.
The hearing is slow, plodding and arcane as attorneys for fish farmers, groundwater-pumping irrigators and the state cross-examine hydrologists about spring flows or state officials about the papers they have filed.
To settle the disputes, though, officials and judges will have to resolve several points on which the water users disagree.
The consequences of the decision could be massive.
At stake is whether the state shuts off the pumps that bring water to thousands of acres of farmland, factories and towns across central and eastern Idaho.
Or will fish farmers, Clear Springs Foods and Blue Lakes Trout Farm, which have lost millions of dollars due to dropping flows from the springs on which they depend, face permanent losses?
Former Supreme Court Chief Justice Gerald Schroeder will rule on each of the factual disputes in the case and make a recommendation to Idaho Department of Water Resources Director David Tuthill, who must make the final decision. But even that is likely to be appealed to the Idaho Supreme Court.
The highest drama so far came Thursday and Friday when former Water Resources Director Karl Dreher testified how he came to issue the orders in 2004 and 2005 that required groundwater users to purchase water and take other steps to meet the water demands of the fish farmers.
Dreher was not chosen to continue as director when Gov. Butch Otter took office in part because Dreher planned to sit as the hearing examiner in these cases, which the senior surface water users opposed.
This hearing, which addresses the claims of the two fish farms and thousands of groundwater users in the Thousand Springs area in south-central Idaho, is expected to be finished by Dec. 15.
A second hearing, with arguments by canal companies and irrigation districts, is set for January.
The rulings will affect not only water users in the Eastern Snake Plain Aquifer area but users statewide.
The debate turns on legal principles that have been teased out in disputes among surface water users for nearly a century.
But Schroeder and the Supreme Court may plow new ground on how the law treats disputes between people who pump their water from the ground and those who get their water from springs and rivers.
The justices will have to weigh two competing sections of constitutional water law: prior appropriation - first come, first served; and the imperative to use water for its full economic development.
The primary case in surface water law upheld the constitution's prior appropriation doctrine, but the U.S. Supreme Court also ruled in favor of full economic development in 1912.
In that case, Henry Schoedde was watering his crops and running a mining operation by using water wheels with buckets to take the water out of the Snake River and lift it into his canals. He sued the Twin Falls Canal Co. because its Milner Dam threatened to lower the river to a point where his water wheels wouldn't turn.
The U.S. Supreme Court ruled Schoedde did not own the current in the river and could not stop others from diverting water to protect it.
Schroeder, Tuthill and the Idaho Supreme Court will have to decide whether fish farmers, who use artesian springs that flow from an aquifer that was later tapped by thousands of groundwater pumpers, are like Schoedde and his water wheels.
Another major question is whether the quality and temperature of the water used by a senior water user like Clear Springs Foods is protected just as the quantity is.
Irrigation officials have for years disputed the idea that water quality and quantity are tied together. But Clear Springs can't put the water to the beneficial use it has for so long if the water isn't clean and cold.
Finally, there is the concept of futile call.
When a senior user demands the state shut off a junior user, past water decisions have suggested that he must be able to get that water in a reasonable time or his call for water is moot.
Since water moves through the Eastern Snake Plain Aquifer slowly, some of the farmers could shut off their pumps today with no effect on the fish farm's springs for 20 to 30 years.
By then the drought could be over and the springs could be back to higher flows. The state would have shut down important businesses and economic activity for nothing.
Only when these issues are decided will a final resolution be possible, people on both sides of the issue agree.
"At the end of the day we still will have to all sit down together and come up with the best way to manage the aquifer," said Randy MacMillan, vice president of Clear Springs Foods.
Rocky Barker: 377-6484
