By SVEN BERG - 4-30-09 |
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For more than 120 years, farmers in the Snake River Plain have used canals to irrigate their crops, all the while cursing the loss of water that leaked out of canal beds.
But these days, canal leakage is an important part of Idaho's water management policy. On April 23, Gov. C.L. "Butch" Otter approved the Comprehensive Aquifer Management Plan, a document that, among other objectives, officially recognizes the value of "incidental recharge" that occurs when water leaks through canal beds and into the aquifer below.
Though it doesn't specifically mention money, Lloyd Hicks, president of Jefferson County's Burgess Canal Co., believes the management plan paves the way for compensation to surface-water users for water they lose to canal leakage.
Exactly how and how much canal users are paid for incidental recharge will be the subject of meetings this summer, Hicks said, adding that he'd be satisfied with either a per-gallon fee or tax breaks.
Before the management plan was finalized, Hicks said, he was considering lining the Burgess canals to stop leakage. If no compensation for canal users materializes this summer, lining could resurface as an option, he said.
"Liners would be bad for the aquifer. There's no doubt about that," Hicks said.
As much as 30 percent of water flowing through canals leaks out of them. In southern Idaho, much of that water filters down into the East Snake Plain Aquifer, a gigantic underground lake that stretches from Glenns Ferry to Ashton and provides water for thousands of farmers, industries, cities and homes.
In fact, many water officials believe incidental recharge led to a supercharging of the aquifer before pumping water out of it became a widespread practice.
Over the past decade, though, drought and soaring numbers of wells drawing water from the aquifer have diminished its volume. Hotly contested battles over water rights ensued. The state came within a hair's breadth of shutting down hundreds of wells in 2007 due to demands for more water from spring-fed fish hatcheries near Twin Falls.
Since then, efforts to recharge the aquifer have intensified. After the 2007 irrigation season ended, the Idaho Department of Water Resources began a managed recharge program, which consisted of running water through canals near Burley in order to boost that area of the aquifer and the hatcheries' springs.
Runoff in eastern Idaho basins last spring and summer replenished reservoirs along the Snake River, and a plentiful snow year this winter allowed the state to expand managed recharge to the Upper Valley.
On April 10, the Burgess Canal Co. opened its fully automated gates near Rigby and began running about 330 cubic feet per second through its system. Since then, Hicks said, managed recharge in the Burgess system has leaked about 10,000 acre-feet -- more than 3 billion gallons -- into the ground. By Monday, Hicks expects 12,000 to 13,000 acre-feet to leak through the Burgess canals into the ground.
Most of that water should make its way into the aquifer, IDWR recharge manager Bill Quinn said, as long as it doesn't get caught in "perched" water -- smaller pools of underground water that aren't connected to the aquifer -- or leach back into the river.
"We have targeted those canals that we think are most beneficial to the aquifer," Quinn said. "Some canals are located in a really good area where the water goes directly into the aquifer."
In practice, there's not much separating managed recharge from incidental recharge. They both involve water leaking through canal beds into the aquifer. The difference is that incidental recharge takes place during the irrigation season as farmers divert water from the river, through canals and to their fields. Managed recharge is implemented before the irrigation season begins and after it ends, diverting water through canals at about 20 percent to 25 percent capacity.
The state pays canal companies for their startup and operating costs during managed recharge. Hicks said that's a bargain, because managed recharge only costs about $3 per acre-foot.
"It's just working great. It's working better than anyone thought," Hicks said.
But is managed recharge really as effective as advertised at boosting the aquifer's water level?
At this point, Quinn said, it's difficult to pin down just how long it will take for managed recharge water to leak into the aquifer. The U.S. Geological Survey, IDWR and the University of Idaho monitor underground water levels at several sites along the aquifer, he said.
"Over time -- over a long period of record -- you can see what the groundwater is doing," Quinn said.
Hicks said he's hopeful managed recharge efforts will continue in future years. In fact, he said, it's something the state should have been doing all along, especially in high-water years, as well as recognizing the value of incidental recharge that's been happening every summer for the past 120 years.
"We just didn't have the leadership and the initiative," he said. "We finally got some people who understand how important this is."
April 30, 2009
Then Idaho Department of Water Resources Director Dave Tuthill accepted a replacement water plan proposed by pumpers - making it effective for this year only without the hearing customarily held for long-term mitigation plans.
On Tuesday attorneys for the state, fish farms and pumpers met at the Gooding County Courthouse and debated Tuthill's right to do so.
The replacement plans and whether state law allows them was one of many topics discussed during oral testimony on a judicial review of the July 2008 final order requiring mitigation water for two Snake River Canyon trout farms.
The fish farms, which insist the plans have never properly provided water owed to them over the past four years, had looked forward to the hearing for some time. Clear Springs Foods of Buhl tried and failed last summer to convince state legislators to review IDWR's practices, and company officials, including CEO Larry Cope, attended Tuesday's hearing.
The groundwater pump-ers took the opportunity to air their grievances as well, often criticizing many of the same points as the fish farms and once again arguing that other factors caused the springs to decline. On behalf of the state, Deputy Attorney General Phil Rassier rebutted both sides, defending Tuthill's order to 5th District Judge John Melanson.
Among the issues discussed:
• How much "seasonal variation," or whether a water right is able to be filled year-round, should play into a water call. Blue Lakes Trout Farm attorney Daniel Steenson criticized it as a "dramatically new standard" and "palpably absurd."
• A 10 percent "trim line" representing a margin of error in which wells should be curtailed. Both the fish farms and pumpers called it "arbitrary and capricious."
• IDWR's practice in the case of phasing in well closures and mitigation requirements over several years. "That still allows injury to be inflicted onthe senior (user)," ClearSprings attorney John K.Simpson said.
Melanson asked few questions Tuesday afternoon, asking Simpson at one point what the attorney thought he could do about past replacement plans. The judge, Simpson replied, could put a stop to the practice.
"We can say 'not anymore,'" Simpson said.
Rassier defended Tuthill's ability to order the replacement plans in an emergency, characterizing them as reactive and mitigation plans as proactive. This year's replacement plan is also being treated as a long-term mitigation plan, and will receive a full hearing sometime in the near future.
"I think a hearing after the fact is still due process," Rassier said. "You don't always have to hold a hearing in advance."
Two rivers in one
It's not the public's fault - they just assume the Snake River is only one river.
To state officials and water users, it's really two, divided and diverted just below Milner.
It's not the only place where the Snake runs low. But over time, legal battles and changes to state law have enshrined the dam as a dividing dry patch in one of the working rivers of the West.
An agricultural river
How the two-river idea was born varies a bit, depending on whom you ask. But most tend to agree on the basics.
In the days before high-lift pumps, Milner was ideal for a dam, said Brian Olmstead, general manager of the Twin Falls Canal Company. It was the last major spot where irrigators could rely on gravity diversion to feed farms. It didn't hurt that the Eastern Snake Plain Aquifer replenished the river through springs in the canyon.
The dam was completed in 1905 to serve the Twin Falls South Side Project, run by the canal company. Over the next several decades, various government officials and river users began to see the value of draining the river at Milner.
Many discussed the economic value of dedicating as much water as possible upstream of the dam to irrigation. Calculations were made; the state commissioner of reclamation said in 1922 that a steady average 6,000 cubic feet per second entered the canyon between Milner Dam and the Hagerman Valley, 60 miles away.
Outside pressures strengthened the concept over time, said Laird Noh, who headed the Senate Resources and Environment Committee for 22 of his 24 years as a state senator.
The Idaho Water Resource Board was created in 1965, he said, in response to worries that the city of Los Angeles would divert water from the Snake, spooking Idahoans who needed water to develop a still-growing region of the state.
Just 13 years later, state officials created the idea of minimum stream flows as a response to renewed concerns about possible diversion to Oregon and Washington and the growing realization that some rivers could benefit scenically and environmentally from keeping some water in them. The Snake at Milner wasn't one of those points: the state's first water plan recorded its minimum flow as "zero" to allow upstream users to take all the water before out-of-state interests could.
All these changes would also be shaped by another major player: Idaho Power Co.
A water-law handbook for attorneys at Givens Pursley, a Boise law firm, notes that actions and positions taken by the electric utility and the U.S. Bureau of Reclamation when developing American Falls Reservoir and other storage projects helped originate the "two rivers" idea. By 1978, the handbook states, the concept was entrenched enough that Idaho Power only sought to shut off water rights below Milner when claiming its Swan Falls Dam - 40 miles south of Boise on the Snake - wasn't getting enough water.
The two-river system gained more legal heft in 1985, when legislators responding to the Swan Falls issue restricted water users downstream of Milner Dam from taking upstream water to fulfill their rights.
The final piece, Noh said, came in the 1990s when the federal government encouraged states to deregulate electric companies. Idaho legislators watched as Montana and Utah shifted their utilities to the free market, followed shortly by those utilities selling parts or all of themselves - and their hydropower rights - to other companies.
Idaho didn't deregulate its utilities. But the Milner split and the restrictions on Idaho Power's rights, Noh said, assures that the upper Snake water stays available to the state should something similar happen in the future.
Sometimes a trickle, never a flood
It's winter, and that means as much as 800 cfs of water runs past Milner Dam - essentially the contents of a large tanker truck every second.
Of course, it doesn't all go past at one place. About one-fourth actually spills over the dam itself. The rest, Olmstead said, is diverted in winter through his company's main canal to a power plant a mile and a half upstream.
The result is a Snake River that for a brief stretch becomes a shadow of itself, winding its way through bare rocks and the narrow beginnings of the canyon.
Sitting nearly nine miles east of Murtaugh, the dam still serves the same purpose it always has, diverting water for four main canals - Twin Falls, North Side, Milner-Gooding and Milner Low Lift. Since 1993, it has also fed a power plant installed by Idaho Power during a dam reconstruction.
In winter, the companies run water through the power plant and use the small income to pay for the reconstruction, Olmstead said. During farming season, that water is added to what flows through their canals.
The power plant-canal combination is a distinctive one that in recent years has led the Magic Valley canal companies to side with Idaho Power more often than their eastern Idaho peers. During tight water years, all the irrigators - and the ag industry by extension - still depend on being able to drain the river, a system that actually gets more use out of the water than if it just carried on down the Snake, said water lawyer T.J. Budge.
"To a large extent, you get to use it twice," Budge said.
In summer months, irrigation diversions can take as much as 8,000 cfs out of the river, Olmstead said. In all but the worst drought years, the companies and Idaho Power keep at least 200 cfs flowing over the dam itself - though the power company now wants to put more of that through the power plant, he said.
About 40 percent of what ends up in the canals gets sucked up by crops. The remainder, he said, either seeps into the ground and returns to the Snake through its numerous springs, or is returned to the canyon through the canal system - not always in the best shape.
In tight water years, average flows can dip for about a month to just a trickle. U.S. Geological Survey records from the past 100 years, however, show that it's never actually reached zero - even now, when everyone largely agrees that too many water rights have been granted.
"It's a real unusual river," Olmstead noted.
Speed bump in the Snake
The zero-flow permission may be essential to irrigation. But it affects far more than just that.
The state's natural-resources agencies, for example, have had to adjust over time to the practice. Doug Megargle, regional fisheries manager for the Idaho Department of Fish and Game, said he adopts a "make do with what we have" approach when it comes to supporting sturgeon and other fish downstream of Milner Dam. The near-drain of the river messes up the life cycles of the fish, depriving them of spawning habitat and other resources.
"When you alternate the natural cycle of a river, anything dependent on that cycle has to adapt," he said.
And Megargle helps those creatures do that. The reservoirs created by dams, for example, allow for bass fisheries that normally couldn't exist - as well as healthy areas to release fish, to the delight of anglers.
Sonny Buhidar, regional water quality manager for the Idaho Department of Environmental Quality, noted that it's harder to keep a river clean when there's less water to dilute contaminants in. But he said he won't mind if Idaho Power reroutes most of the dam's minimum flow because what's there is just a trickle anyway.
"There's no water quality because there's no water," he said. "That's just the way it is."
Recreationists have also been touched by the dry canyon floor.
Sections of the river between the Milner and Twin Falls dams, including that near Murtaugh, can be floated in the spring, taking advantage of minimum flows for salmon and other events. Idaho Power is even required to provide recreational flows for four weekends between May 1 and June 30 each year, and posts information on its Web site for setting up a trip.
The result has meant the occasional out-of-area, perplexed boater. In a story on a canoe trip published in Canoe & Kayak Magazine in March 2008, Jim Stanford wrote he was amazed at how thin the Snake became after Milner Dam, "as if the Empire State Building had been reduced to four stories." He wrote of the number of times he and his photographer had to portage over dry areas, and seemed appalled at the state of the river, describing his surroundings as like "being at the bottom of a drained fish tank."
Olin Gardner, who with his wife runs Idaho Guide Service Inc. out of Twin Falls and Riggins, said he would like to see the dam's operators at least change the way they release water. It would make for better runs, he argues, which in turn would attract more outdoors enthusiasts - both seeking guides and rafting on their own - and improve the economy.
"For a private boater, it's developed into one of the premier day trips in the Northwest," he said, arguing that the environmental argument of releasing less water over a longer time doesn't hold up against the potential economic boost.
Olmstead's heard that argument. The canal manager defended the way the river is operated and took the argument further, suggesting that an uncontrolled Snake, without Milner or other dams, would be even worse and would only provide rafting for a few die-hard experts in the spring. He also flipped the economic argument around, noting the costs of taking extra water from irrigators.
"That's millions of dollars for every raft trip," he said.
Bridging the gap
The two pieces of the Snake aren't actually cleanly cut. In fact, at least two ongoing water-law cases will sort out a possible tie - whether efforts to recharge the aquifer upstream of Milner can involve water that would otherwise cross the gap.
Both cases involve Idaho Power, which doesn't necessarily view history through the same lens the state does. The company declined any direct comment for this article, instead pointing to legal filings to explain its point of view.
Objecting to a state filing that recounted the history of the Milner zero-flow policy, the company wrote in a filing last fall of the government's "misleading" portrayal of the policy as guiding the history of water development along the Snake. The company pointed out numerous agreements where its rights have bridged the divide.
"In short, long before the State developed its 'zero flow at Milner' policy, Idaho Power had rights which entitled it to flows for hydropower generation below Milner, and which continue to the present day," attorneys wrote, referring to storage rights at American Falls Reservoir.
That said, the hydropower rights have long been trumped by irrigation and similar uses above Milner. And the company doesn't appear to contest some form of the split.
"Idaho Power is not contesting here that its hydropower water rights are secondary to irrigation and other consumptive uses above Milner Dam," attorneys wrote. "That issue is settled."
The company has fought against any expansion of the divide, most recently the state's gradual attempt to put recharge at a higher priority than water for Milner. But even without recharge, the split is far from complete.
The Bureau of Reclamation helped muddy the issue in the 1990s when it negotiated flow augmentation water for downstream fish. And former Reclamation Commissioner John W. Keys III helped arrange the 2004 water-rights settlement with the Nez Perce Tribe that resolved a dispute over virtually all the water in the Snake and increased the extra flows - when water's available, that is.
Rich Rigby, a special assistant in Reclamation's Boise regional office, said the fish flows still have to be sorted out every year, but characterized them as "a real success story."
The two-river approach isn't unheard of on other rivers, he mused, but probably very few of those are the size of the Snake.
And the concept has held on in a state with a tumultuous water history. Though people involved in water issues are well aware of it, the general public should be more aware of how their river is handled, Noh said.
Olmstead agreed, saying the canal companies should do a little more P.R. work.
"Irrigators are historically bad at getting their word out," he said.
Former state Supreme Court Chief Justice Gerald Schroeder has issued an order aimed at settling a long-running feud between irrigators in eastern Idaho and their peers in Magic Valley.
Schroeder's 67-page ruling, which came after 112 hours of testimony over 14 days in January and early February and was released Wednesday, serves as a recommendation to Idaho Department of Water Resources Director Dave Tuthill.
Tuthill will ultimately decide how the state plans to settle the dispute between a coalition of canal companies in Twin Falls and groundwater pumpers in eastern Idaho that came to a head in 2005, after years of drought.
Schroeder made a number of points in his ruling. Here's a glimpse:
- Crops and farming decisions have been affected by a shortage of water in Magic Valley. The surface-water users met the threshold required to prove they've been affected.
- If surface-water users are suffering material injury from groundwater pumpers, they are entitled to curtailment or replacement water in the same season, not a year later.
- It would be "very desirable" for the groundwater pumpers to have a right to water in the state's reservoirs, water that the pumpers could use not only to appease the Magic Valley irrigators but also to mitigate their own losses in dry years.
- The public interest should be considered in responding to disputes over water in the East Snake Plain Aquifer. The concept of "first in time, first in right" is a fundamental principle in Idaho water law, he wrote, but the principle is not without limitation. "The public interest is a factor to be considered in water rights litigation that impacts the public," Schroeder wrote. He goes on to say that, "consideration of the public interest gives relevance to evidence of the economic impact of curtailment upon the State and local communities."
- Once IDWR determines material injury has been inflicted on a senior water rights holder, the junior rights holder bears the burden of challenging the determination. That burden now lies on the ground water pumpers, he wrote.
- The argument that storage water has no beneficial use is flawed.
- The East Snake Plain Aquifer model is the best science available, but it cannot predict the effect a specific well or spring will have on the aquifer; therefore, conclusions must be drawn on a regional basis. The model also cannot tell definitively whether curtailment delivered water where it was needed.
- "Curtailment of ground water users may well not put water into the field of the surface water users in time to remediate the damage caused by a shortage," he wrote. "Whereas curtailment is devastating to the ground water user and damaging to the public interest which benefits from a prosperous farm economy."
- Curtailment for a year is reasonable, but curtailing to hold water for more than a year "runs a serious risk of being classified as hording."
- A mitigation plan should be developed. If there is no plan, and the director finds material injury's been inflicted, "curtailment must follow."
The dispute between the two groups began in earnest in May 2005, when former IDWR Director Karl Dreher denied the coalition's request to shut off all upstream groundwater pumpers with junior water rights. The downstream users -- most of whom hold water rights that are older than those belonging to the groundwater users in eastern Idaho -- told Dreher they were suffering because they weren't getting all of the water to which they were entitled. The law, they argued, called for those with senior water rights to have those rights satisfied before those of junior water rights holders, regardless of the economic consequences.
Dreher's decision prompted the coalition to file suit in district court.
In June 2006, Magic Valley District Court Judge Barry Wood ruled that parts of the state's conjunctive management rules violated the Idaho Constitution. (The rules are intended to provide a framework for the IDWR director to determine how water should be allocated among irrigators.)
The case went before the state Supreme Court in 2007. The justices ruled Wood erred in determining the rules were unconstitutional. The high court kicked the case back to Tuthill, who asked Schroeder to hold administrative hearings on the dispute and make a recommendation.
IDWR officials declined to comment Wednesday.
"Since this is a contested case before the department it wouldn't be appropriate for IDWR or the Director to comment on the conclusions of Judge Schroeder in his recommended order before the Director issues his final order in the matter expected sometime this summer," a news release said.
Trout farm testimony opens water hearings
Larry Cope, president and CEO of Clear Springs Foods, testified his company has scaled back production because it's not receiving its full share of water under the law.
"The water - it's our lifeblood," Cope said. "We're just asking for our water to be delivered to us."
Trout farm officials have said publicly they're losing millions because groundwater pumpers with less-senior water rights are sucking water from the aquifer that belongs to Clear Springs and another trout operation, Blue Lakes Trout Farm.
The companies have asked the state to shut down–groundwater wells to free up more water for their aquaculture operations.
At stake is the valley's aquaculture industry, as well as hundreds of land farms that depend on pumped water for irrigation. Several Magic Valley towns that rely on wells are also at risk, though drinking water supplies are not threatened.
The case has a long and complicated history. The trout farms have older water rights that trump the pumpers' rights under Idaho's first-in-time water law. In 2005, the trout farmers asked the state to shut down some pumps because less spring water was available at the farms, both near Buhl.
The pumpers agreed to provide the trout farmers with water under a deal called a mitigation plan, which–allowed them to keep the pumps running. But recently, the pumpers haven't been able to find enough water for spring users.
As a result, the trout farmers approached the state again and asked it to shut down the pumps.
In the meantime, senior water users sued the state, saying its method for managing water was unconstitutional and kept them from receiving their full water rights. The Supreme Court disagreed in January, which allowed the state to proceed with administering water.
Then in the spring - following a particularly dry winter - the state was just days from closing wells when pumpers offered another last-minute deal that averted what may have become an economic crisis.
Fast-forward to this week's hearing. Both sides are presenting their cases to former Chief Justice of Idaho Gerald Schroeder, who will recommend to the state's water director, Dave Tuthill, how to proceed.
Tuthill has already warned pumpers that their wells could be curtailed come spring. But he'll likely make his final decision this–winter based on Schroeder's recommendations, he said in an interview outside the hearing room. Tuthill has elected not to observe the proceedings.
The hearing, expected to last more than two weeks, could set precedent in two similar pending cases that pit water users with more senior rights against those with junior rights. Most close to the trout farm case expect it to be appealed and eventually reach the Supreme Court.
Cope testified that spring water is essential for the trout farms because it is very pure and emerges from the springs at a near-constant temperature year-round - both necessary for trout production.
Testimony from for the trout farms will continue this week. Former state water director Karl Dreher, who was director when the original mitigation agreement was formed, is expected to testify next week. Schroeder's ruling could follow the week after.
Matt Christensen may be reached at 735-3243 or at matt.christensen@lee.net.
BOISE -The board that governs Idaho's water is proposing dramatic changes to how the state's most precious resource is managed, stored and funded amid growing concern about climate change.
The Idaho Department of Water Resources Board wants to update the state water plan for the first time since 1996 and take a hands-on management approach unparalleled in the past four decades. The board's decisions will likely affect all Idahoans, especially irrigators and municipalities.
The policy shift is revolutionary, said Hal Anderson, a senior administrator with the board. "It was the late '60s the last time the water board was this assertive or aggressive," Anderson said.
In a work session late last week, the board discussed long-term strategies that could include building additional reservoirs or expanding existing facilities, recharging the aquifer and revamping management techniques to accommodate growth. The board could also ask the Legislature next session to fund projects similar to a current aquifer-recharge plan.
"We're basically at the limit of our functioning water-management plans," Anderson said. "And we're in a veritable crisis mode on the Eastern Snake Aquifer," where Magic Valley gets much of its water.
The board is concerned climate change, especially a decade of nearly consecutive drought years, is affecting a system designed for cooler temperatures and fewer water users.
Warmer spring weather in recent years has caused earlier spring runoff and changed stream-flow patterns, making it harder to capture and deliver water.
In the last two decades, the department has also struggled to manage groundwater and surface water as a single resource, a process called conjunctive management.
IDWR's announcement signals a general shift in the state's water role. This spring, Gov. Butch Otter hosted a water summit where he told water users to find solutions to Idaho's water crisis or he'd do it for them. Two sessions ago, the Legislature ordered the water board to develop a plan for managing the Eastern Snake Plain Aquifer. And in January, the Supreme Court upheld the principle of conjunctive management in a landmark case.
"The tone the governor set at the summit was that we've got to roll up our sleeves because the clock is ticking," said Jon Hanian, a spokesman for Otter. "If we all don't take an aggressive, hands-on approach this (water crisis) will get out of hand."
Times-News staff writer Matt Christensen covers the environment. He welcomes comments at matt.christensen@lee.net.
The proposal offered by the Idaho Ground Water Appropriators is the latest attempt to avert the economic hardship that could come from shutting down 591 water rights spread across more than 16,000 acres in the Magic Valley.
In its latest proposal, the groundwater users group pledges to recharge the Eastern Snake Plain Aquifer with another 10,000 acre feet of water at the end of the growing season - doubling the amount it initially agreed to divert back into the aquifer in April.
''We think we are going to be very close,'' Tim Deeg, president of the groundwater group, told The Associated Press. ''We think it's enough to avoid curtailment and that's the biggest thing concerning us right now.''
As the nation's leading supplier of farm-raised rainbow trout, Idaho producers like Blue Lakes and Clear Springs say increased groundwater pumping from the aquifer is reducing flows of the cool, fresh water they use for raising trout.
In April, Tuthill issued a curtailment order that threatened to shut down 771 water rights across 33,000 acres in six counties north of the Snake River. The order was delayed after a brief showdown in the courts, but Tuthill reissued the order last month, this time shrinking the number of water rights and acreage affected.
''But we know it's going to be a lot more when you factor in all the ancillary effects,'' said Mike Journee, a spokesman for the groundwater users group.
The scale of the possible curtailment, however, was reduced yet again.
Idaho Department of Water Resources Director David Tuthill issued a new curtailment order for junior groundwater pumpers across south-central Idaho. The order takes effect July 6, unless an acceptable mitigation plan is provided by groundwater users with rights junior in priority to surface users in the Thousand Springs stretch.
Tuthill's decree now affects 591 groundwater rights, which include approximately 16,638 acres of southern Idaho farmland. That total acreage is almost half of the 33,000 acres Tuthill initially placed under the threat of curtailment in late April. The initial order also went to 771 groundwater rights.
The curtailment orders are a result of water delivery calls made two years ago in the courts by senior water right holders Blue Lakes Trout Farm and Clear Springs Foods' Snake River Farm. The trout producers' call began in 2005, and went through state courts for two years before going back to IDWR this spring.
Calling the push for curtailment a "last option," Tuthill foresees more negotiations bearing fruit before the July 6 deadline.
"The emphasis here is that while these orders are going out, I'm expecting we'll receive mitigation plans so curtailment can be avoided this year," Tuthill told the Times-News. "We received sufficient mitigation plans as we've carefully done our due diligence, and we have been able to find mitigation for all but 16,638 acres."
But representatives from opposing sides of the issue voiced disappointment with the director's new order Friday afternoon.
"That's the question, is it really sufficient mitigation?" asked Randy MacMillan, a vice president for Clear Springs Foods. "It is certainly less than what the director had said before â€- If they have found additional mitigation, we have yet to see it"
Tuthill's new order is the second curtailment reduction in a week. After meeting June 8 in Boise with multiple representatives of either side, the director cut the total number of acres facing curtailment from 33,000 acres to 22,000.
"We know the director is anxious to limit the affect of curtailment, but what's disappointing to us is that he doesn't seem to recognize the serious economic harm done to us by groundwater pumping," MacMillan said.
Lynn Tominaga, president of the Idaho Ground Water Appropriators, said the new order, in spite of its reduction in acreage, still amounts to a major financial blow for the region.
"The economic havoc, or the rift with the folks affected, is going to be tremendous," Tominaga said. "We've been saying (the impact is) about $1,000 to $1,200 per acre that's curtailed before folks can harvest their crops. That's a pretty big financial loss. A minimum of $16 million to $21 million is going to be taken out."
Junior water rights at risk include irrigation, commercial, industrial and domestic users, including towns and cities in southern Idaho. The junior water rights at are in Blaine, Butte, Gooding, Jerome, Lincoln and Minidoka counties.
Tuthill said more mitigation plans could come from independent pumpers, but what's needed are larger mitigation plans from the IGWA. Tominaga said his group will continue to explore its options.
"We've got to look and see and what we can commit on putting together a plan," he said. "The biggest thing we'd like to see is the director have an expedited administrative hearing."
Tuthill said no conference was planned as of Friday, but that the July 8 meeting was a "step in the right direction."
David Cooper is the interim city editor of the Times-News. Contact him at 735-3246 or at dcooper@magicvalley.com.
| Last we knew: State water director David Tuthill cut the number of farming acres eligible for curtailment from 33,000 to 22,000. The latest: A new curtailment order has been issued for 16,638 acres across southern Idaho. What's next: Groundwater pumpers will aim for a new mitigation plan, and meeting with the director. |
This is the second time this month a curtailment order has been derailed. A previous order that affected pumpers in the Thousand Springs reach is on hiatus, pending a court hearing later this month.
The latest postponement, which affects users in the American Falls reach near Burley, comes after the Idaho Ground Water Association offered to guarantee the Twin Falls Canal Co. 1.075 million acre feet of water for its surface users. That's likely enough to postpone curtailment until at least November, when the canal company assesses how much water it provided for the previous season.
"We've put together a plan that will provide Twin Falls (Canal Co.) the water that's required for them to give a full water supply," said Lynn Tominaga, IGWA president. "We think it's a pretty fair deal."
Tominaga said IGWA will lease storage water at a cost of $6.30 an acre foot, plus $3 per acre foot for transporting the water through canal systems. IGWA is yet to finalize the purchases.
IDWR Director Dave Tuthill said he is relieved the agreement will postpone curtailment. But he said he's not ruling out shutdown later this summer. As the season progresses, if it appears the pumpers won't be able to provide the water they've agreed to, he may still order pumps closed.
"My assessment has been to delay the curtailment order and continue to monitor IGWA's progress," Tuthill said.
Though the agreement satisfies the state and pumpers, surface water users say they're not sure pumpers can find the water they've promised to lease.
"The question is whether water users will be willing to lease their storage water," said John Simpson, an attorney for the canal company. "It's pretty dry out there."
Times-News staff writer Matt Christensen covers the environment. He welcomes comments at 735-3243 and at matt.christensen@lee.net.
IDWR Director Issues Letters Warning of Mandatory Curtailment in the Thousand Springs Area
Idaho Department of Water Resources Director David Tuthill today signed letters to ground water users in the Thousand Springs area warning that he intends to issue orders on May 14th requiring potential curtailment of their ground water rights. The warning letters are issued as part of a continuing response to water delivery calls made in 2005 by senior water right holders Blue Lakes Trout Farm and Clear Springs Food’s Snake River Farm.
The delivery calls were made under the Department’s Rules for Conjunctive Management of Surface and Ground Water Sources. If required, the curtailment orders will affect certain ground water users with junior water rights in portions of Blaine, Butte, Gooding, Jerome, Lincoln, and Minidoka counties in South Central Idaho.
Water calls and curtailment orders are necessary to satisfy the director’s duty under Idaho law to administer water rights in accordance with the prior appropriation doctrine in times of shortage. “While we are forced to provide this notice, there is still an opportunity to identify additional mitigation. Curtailment is a last resort but we are obligated under Idaho law to follow through with enforcement if mitigation is not provided,” said Idaho Department of Water Resources Director David Tuthill.
If issued, given the present mitigation plan, the curtailment orders could affect ground water rights bearing priority dates junior to May 10, 1983 for the Blue Lakes call and junior to June 9, 1975 for the Clear Springs call. This includes 771 ground water rights for irrigation, commercial, industrial, municipal, non-exempt domestic and stockwater, and other consumptive uses. Non-consumptive and culinary in-house uses of water will not be subject to curtailment under the orders.
A water call is made when the holder of a senior water right experiences a shortfall in the amount of water the holder is entitled to receive and is beneficially using in accordance with law. The call is made on the water source. Under the conjunctive management rules, the Department will then require the holders of junior water rights to mitigate the effects of their diversions or stop diverting water in order to allow more water to satisfy the senior right.
Information on the curtailment orders can be found on the Idaho Department of Water Resources’ web site at www.idwr.idaho.gov under the headings “Major Issues” and “What’s New.” The web site features maps of the affected areas, copies of the letters issued to water rights holders, legal documents, and related links.
For more information at the Idaho Department of Water Resources web site, click here.