Letters from the West

Idaho Supreme Court rules state has control over flood storage water

The Idaho Supreme Court ruled Monday that the Idaho Director of Water Resources has the power to determine how much storage water a user is due under state law.

The decision in the case of A & B Irrigation District versus Idaho clears the path for completing the 27-year adjudication of 158,000 water rights in the Snake River Basin. The court ruled that Idaho District Judge Eric Wildman erred when he made the issue over refilling reservoirs after flood control release a basin-wide issue but was right to leave the issue over when a storage right has been filled to the director.

The case was the latest where the court was asked to rule where a user’s right to use Idaho water ends and the state’s obligation to ensure it is not wasted begins. As it has in the past, the court ruled against senior water users who argued that once a right to use the state’s water had been determined, the state had little discretion in administering it.

In this case the issue was over how such rights applied when federal dam operators release water stored in their reservoirs for flood control. The issue is who determines what to do with the flood water that is used to refill the reservoir in a bountiful year after all others already had been filled.

Several irrigation districts in the Treasure Valley, whose storage water rights had already been determined by the adjudication court were concerned that without strict guidance from the court, the state might short them of flood water they believe they are entitled to and give it to junior users. They were joined by other senior users and the federal Bureau of Reclamation.

The decision is a victory for state control over its water, said Clive Strong, chief og Attorney General Lawrence Wasden's natural resources section.

"Had the senior users prevailed, it would have put the Bureau of Reclamation in control of the river instead of the state of Idaho," Strong said.

But in the Boise River Basin, ir would not have had that effect, said Al Barker, a Boise attorney who represented Boise Project irrigators. The Bureau of Reclamation already has an agreement to use its extra storage water to make up for the storage water other users might need.

Barker said he variability and unpredictability the river systems have had made the issue important. He was uncertain how the courts and the Water Resources Department will proceed.

But attorneys for the state, ground water users and others with junior rights argued the Water Resources Director should use technical expertise to administer the water rights determined by the courts. They argued that he has the power to use whatever accounting methods he chooses and that others can challenge his decisions in court.

Water Resources will now likely lift its stay on a contested case over the issue and the sides that faced off in court will now go before the director, said Chris Meyer, a Boise attorney who argued on behalf of United Water.

United Water has a very junior water right out of the Boise River. Meyer expects Water Resources to continue its routine for refilling reservoirs that currently fills all the storage rights before allowing the senior users to refill their rights.

That's important for United Water's Columbia Water Treatment Plant, Meyer said in those rare cases when refilling is an issue.

Meyer said that there is usually plenty of water for both United Water and the refills of irrigation reservoirs after flood releases. “But if conflict occurs, it will occur at a time when we care,’ he said.

The decision was written by Chief Justice Roger Burdick and Justices Daniel Eismann, Jim Jones, Joel Horton and Gerald Schroeder concurred.

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