Legal Connections in Surface and Ground Water Law: The Idaho
Experience
Honorable Eric J. Wildman, SRBA District Court
Chris M. Bromley, Deputy Attorney General** All opinions expressed herein are those of the presenter and do not necessarily represent the opinion of the Attorney General.
Topics to be AddressedHistoric Water Administration
Idaho’s Ground Water Act
The Snake River Basin Adjudication
Idaho’s Conjunctive Management Rules
Conjunctive Management Delivery Calls
Historical Water AdministrationIdaho is a prior appropriation state
Idaho Const., Art. XV § 3Ground water is subject to appropriation
Idaho Code § 42-103Prior appropriation doctrine applies
Bower v. Moorman, 27 Idaho 162 (1915) Protected in maintenance of historical pumping
levels Noh v. Stoner, 53 Idaho 651 (1933)
ESPA Ground Water Development
BowerNoh
1949
Idaho’s Ground Water Act (GWA)Idaho Code § 42-226
“[W]hile the doctrine of ‘first in time is first in right’ is recognized, a reasonable exercise of this right shall not block full economic development of underground water resources, but early appropriators of underground water shall be protected in the maintenance of reasonable ground water pumping levels as may be established by the state reclamation engineer as herein provided.” Emphasis added.
Baker v. Ore-Ida Foods, Inc., 95 Idaho 575 (1973)GWA is constitutional
Snake River Basin Adjudication (SRBA)
State of Idaho
SRBAIdaho Power Company, Swan Falls Dam
SRBASwan Falls Dam
9,450 cfs at Swan Falls dam (1900 to 1919 priorities)
8,400 cfs capacitySwan Falls Agreement
July 1, 1985Subordinated flows (3900/5600)Legislation to provide funding for adjudication of
the Snake River BasinSRBA Commencement
November 19, 1987
SRBAStatus of the SRBA as of September 10, 2012
155,904
601
Decreed
Recommended, Await-ing Decree
Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994)Mandamus proceeding against the Director
initiated by a senior surface water irrigator to compel administration
A defense to inaction was absence of rules to guide conjunctive administration
Court held the Director has a clear legal duty to distribute water, but “the details of the performance of the duty are left to the director’s discretion . . . .” Id. at 812.
1994 Conjunctive Management RulesIDAPA 37.03.11 et seq., Rules for Conjunctive
Management of Surface and Ground Water Resources (CM Rules)CM Rule 10.01—ScopeCM Rule 10.18—Reasonable Ground Water Pumping LevelCM Rule 20.03—Reasonable Use of Surface and Ground
WaterCM Rule 42—Material Injury FactorsCM Rule 43—Mitigation Plans
CM Rules are facially constitutionalAmerican Falls Reservoir Dist. No. 2 v. Idaho Dept. of
Water Resources, 143 Idaho 862, 154 P.3d 422 (2007)
Eastern Snake Plain Aquifer Model (ESPAM)Developed by the Eastern Snake Plain
Hydrologic Modeling Committee (ESHMC)ESHMC formed in 1998
Idaho Department of Water Resources Idaho Water Resource Research Institute Federal agencies Private stakeholders
Based on USGS’s ModflowESPAM 1.0, 1.1, 2.0
CM Rule Delivery Calls
Thousand Springs
A&B
Surface Water Coalition
Thousand Springs—HistoryBlue Lakes and Clear Springs
(commercial fish propagation facilities) called out junior ground water users
IDWR Director found material injuryCurtailment ordered to priority date of
Spring Users’ water rightsApplied a trim line to remove certain junior
rights from scope of curtailmentDistrict court affirmed
Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 252 P.3d 71 (2011)Two main issues on appeal
Applicability of Idaho’s Ground Water Act (GWA)Director’s use of a “trim line” to define the scope of curtailment
Junior’s relied on interpretation of the GWA“Full economic development”
“A delivery call cannot be denied on the ground that curtailment of junior appropriators would result in substantial economic harm.” 150 Idaho at 802-803, 252 P.3d at 83-84
“Reasonable pumping levels” “Idaho Code § 42-226 has no application to this case. It only modifies
the rights of ground water users . . . .” Id. at 809, 252 P.3d at 90
Clear SpringsSeniors appealed Director’s use of the “trim line”
According to the Director, “the degree of uncertainty associated with application of the [Aquifer] ground water model is 10 percent.” 150 Idaho at 813, 252 P.3d at 94.
“The limitations of the model are identifiable and important but they do not preclude reliance upon it. It has an acceptable level of reliability based on peer reviewed science.” 150 Idaho at 814, 252 P.3d at 95.
“[The model] represents the best available science for determining the effects of ground water diversions and surface water uses on the [Aquifer] and hydraulically-connected reaches of the Snake River and its tributaries.” Id.
“ There currently is no other technical basis as reliable as the simulations from the [Aquifer] ground water model that can be used to determine the effects of ground water diversions and surface water uses on the [Aquifer] and hydraulically connected reaches of the Snake River and its tributaries.” Id.
73,879 acres (60 cfs to
reach)
20% of Reach Gains to Facility
(12 cfs)
295,692 acres
(72 cfs to reach)
TRIM LINE APPLIED
Timing of Curtailment
A&B Irrigation District– HistoryUnited States Bureau of Reclamation surface water
and ground water projectUnit B (ground water) called out junior ground water
usersIDWR Director found no material injury
A&B protected in maintenance of reasonable pumping levels, not historic pumping levels
A&B is required to interconnect its systemA&B is not water short
District court affirmedHeld that decisions must be based on clear and convincing
evidence
A&B Irr. Dist. v. Idaho Dept. of Water Resources, 2012 WL 3116979 (August 2, 2012)Main issues on appeal:
Whether A&B’s 1948 irrigation water right is subject to the GWA
Whether the Director erred in failing to set a reasonable pumping level when he found A&B was not materially injured
A&B Irr. Dist.A&B argued its 1948 irrigation right was
protected in historic pumping levels because it predated the GWA Court addressed each statutory amendment,
holding: Idaho Code § 42-229 has never been amended and
extends the GWA to all non-excepted water rights: “[T]he administration of all rights to the use of
ground water, whenever or however acquired or to be acquired, shall, unless specifically excepted therefrom, be governed by the provisions of this act.” Emphasis added.
A&B Irr. Dist.A&B argued Director erred in failing to set a
reasonable pumping level when it filed its callCourt held the Director is mandated to respond to a
delivery call; however: Idaho Code § 42-237a(g) does not obligate the Director to set a
pumping level: “To assist the director . . . in the administration and enforcement
of this act, he may establish a ground water pumping level . . . .”Court held the Director’s decision was supported by
substantial evidence in the record: A&B’s water use Unique geologic conditions ESPA is not being mined
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L’Locations of Geologic Cross Sections
Surface Water Coalition (SWC)Seven irrigation entities called out junior
ground water usersIDWR Director found material injury
1990-2006 examined Diversions (surface water and storage), crops,
evapotranspiration, sprinkler/flood application, conveyance losses, canal capacity
Curtailment ordered to meet volumetric shortfallDistrict court affirmedOn appeal to the Idaho Supreme Court
Questions?