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

F

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G

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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?