In late May 2018, Idaho legislative leaders announced they are pushing for Gov. Butch Otter to call a special session of the Legislature to pass legislation on flood control releases from reservoirs feeding the Boise River. The proposed law would help enable a settlement regarding Idaho water rights and that flood control water. The issue is otherwise headed to the Idaho Supreme Court.
The issue has been building for years. Idaho Reports first published this explanation of the water dispute in February 2016.
First, let me say that the Treasure Valley water fight is the most complex story we’ve worked on in a long time at Idaho Reports.
Some people dedicate their careers to understanding water law, rights and accounting. Several people in the valley have spent the last few years studying this particular issue. Attorney General Lawrence Wasden told Idaho Reports he’s spent more than 100 hours trying to condense an explanation of this controversy into an understandable presentation.
So how can we do it justice on a 15-minute Idaho Reports segment?
We can’t. We spent three weeks going over legal documents (here are several dozen, if you’re interested) and talking about the issue with experts. People aren’t kidding when they say this thing is complicated.
But we can explain a few things, including why Idahoans who don’t live in Treasure Valley should care about this battle.
First, the basics of the fight
One side claims water — specifically, water that Boise area irrigators have a right to use — is being released downstream early in the season, and that water is being counted against their rights. Those who are protesting this practice say it’s a recent change from Idaho Department of Water Resources, and that change that could result in users not having enough water during irrigation season.
Doesn’t sound fair, right? You can’t use water that’s been sent downstream. The issue has lawmakers up in arms, including five prominent senators who sent Wasden and Gov. Butch Otter demanding they “cease their coordinated attacks on Treasure Valley storage rights.” (Read the full letter here.)
But a proposed solution, where senior water users are able to get more than one fill on their water rights before junior water users get their water, doesn’t seem fair either.
The other side — the Idaho Department of Water Resources and director Gary Spackman — relies on a complex accounting system, state law and the prior appropriation doctrine. Flood control has been part of the accounting for 30 years, according to Spackman, and except for one year, everyone has received all of the water that is promised to them.
“Water issues are by their very nature complex and contentious,” Wasden responded to the senators. “They are not subject to soundbite explanations.” You can read Wasden’s response to the five senators here.
This fight in particular is especially complex and contentious. It’s divided politicians and water experts. Special Master Ted Booth of the Snake River Basin Adjudication — Idaho’s water court — issued a recommendation against the practice. Director Spackman ordered that the practice continue.
In the accounting system, water isn’t just water, and users aren’t just users.
You have natural flow water, and then you have the water that’s stored in the dams.
There are three major dams in the Boise basin; Anderson Ranch, Arrowrock and Lucky Peak. They’re managed as a single system, but internally they have conflicting roles: storage and flood control.
There are different legal documents that allow people to use the water in the Boise River system. Some water users have rights to use that natural flow water. Some have rights for the water that’s stored in Arrowrock and Anderson Ranch dams.
Then there’s Lucky Peak, and here’s where it gets tricky. Unlike Arrowrock and Anderson Ranch, which are primarily for storing water, Lucky Peak’s primary purpose is flood control, a function controlled by the federal government’s Bureau of Reclamation, though the dam also stores water for irrigation and other beneficial uses. Some water users have contracts with the Bureau of Reclamation for that storage water in Lucky Peak. Those contracts say water users get their water once a year, on the contract’s date of allocation.
In high water years, called flood years, some of that water is released downstream so Boise doesn’t flood.
What’s not released is stored, along with more water that flows in after the flood control release. That extra water is called refill.
Currently, the Bureau of Reclamation’s water right is counted in those early season flood releases.
People who have contracts to use that stored water want to make sure they have access to the refill water, and that the flood control water that was released downstream doesn’t count against their contracts. Irrigators need that water in the summer, not when it’s released as flood water in March.
The concern, then, is irrigators won’t have access to their contracted water, leaving the valley dry mid-summer.
The Department of Water Resources says accounting for flood releases is the only legal way to fulfill water rights under the prior appropriation doctrine — basically, “first in time, first in right.” If flood control water doesn’t count, senior water users will have what Spackman couched as multiple fills on their water right. And if storage does run low, the junior users will be the ones without water.
Furthermore, Spackman says this is how they’ve accounted for water for the last 30 years — ever since IDWR installed a complex computer monitoring system that helps watermasters keep track of water allocations.
Treasure Valley Water Users say that’s not true — that this is a new accounting method. And even if it was the case, users didn’t know about it, and it’s not a good practice.
Seems like an easy fix, right? Why count the water against users when they have no use for it?
But it’s not that simple.
Idaho law says that water is accounted for at the point of diversion — in this case, the dam. While watermasters for the Boise water system testified in September that this isn’t how they accounted for water, those same watermasters contradicted themselves in the hearing, and they contradicted the official records that they kept.
And remember, the water that those users get is distributed through irrigation companies, which still have access to other water, including natural flow water. Contracts for that storage water say users have access to water that is stored in the dam minus what was released for flood control.
Basically, Wasden said, this is what users have agreed to.
Also, right now, there’s a safeguard in the Bureau of Reclamation’s operation of the dam, which says if the Bureau releases more than what they’re contracted to provide to users, they have to make up for it with their own water rights to the tune of 60,000 acre feet.
Wasden and Spackman have both said users have always received their water, so claims that canals could go dry are hyperbole.
But their argument requires the acceptance that this flood release accounting has been in place for the last three decades. And remember, opponents say this is a new practice, and they don’t care what happened for the last 30 years. They’re worried about the next 30 years.
Timing is also an issue
The Bureau of Reclamation’s water right at Lucky Peak allows for irrigation from its stored water starting in March. That means the IDWR and the watermasters start keeping track of, accounting for and allocating water at that point. Once that accounting starts, water rights can be delivered, and water start counting towards an individual’s allocation.
The problem is most people don’t want their water in early spring. They want their water later in the season when they water crops. And they certainly don’t want all their water to flow down the river, count against their allotment and not be put to use.
If the time is moved June, however, the Bureau of Reclamation would have control of the water system during the major flood control times. Because its number one priority is flood control, they have an incentive to keep that reservoir as empty as possible. Wasden fears not having the state accounting system there to keep the bureau honest would hand control of state water to the feds.
Sen. Jim Rice said that concern is unfounded, and though he doesn’t always trust the federal government, he feels the Bureau of Reclamation has Treasure Valley irrigators’ best interests at heart.
So let’s say this has actually been the practice for 30 years. Does it matter?
“No,” said Sen. Grant Burgoyne, one of the senators who signed the letter to the governor and attorney general. It’s a bad practice, he said, and one that should be changed.
If the court does uphold Spackman’s decision, Burgoyne said he’ll respect it, but he didn’t rule out addressing the issue legislatively in the future.
The concern with that, though, is that any legislative changes the way in which prior appropriation is interpreted in Idaho.
There might be another solution.
Elsewhere on the Snake where there was a similar concern, the Bureau solved the problem by getting additional rights to the refill water — rights that are lower in priority than all existing rights. That way, junior users have their water protected, and there is no question about who gets the water that comes in after the flood control releases.
Right now, though, two cases are making their way through the courts and Idaho’s administrative process. Both sides of the fight anticipate this ending up in front of the Idaho Supreme Court, and both sides predict dire consequences if they lose.
In the meantime, for those who are concerned about canals running dry: Remember, we’re talking about who has the right to extra water during flood control years. It’s very unlikely the valley will dry up when we have too much water.