Legal Connections in Surface and Ground Water Law: The Idaho Experience

1. 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.

2. Topics to be Addressed • Historic Water Administration • Idaho’s Ground Water Act • The Snake River Basin Adjudication • Idaho’s Conjunctive Management Rules • Conjunctive Management Delivery Calls

3. Historical Water Administration • Idaho is a prior appropriation state • Idaho Const., Art. XV § 3 • Ground water is subject to appropriation • Idaho Code § 42-103 • Prior appropriation doctrine applies • Bower v. Moorman, 27 Idaho 162 (1915) • Protected in maintenance of historical pumping levels • Noh v. Stoner, 53 Idaho 651 (1933)

4. ESPA Ground Water Development 1949 Noh Bower

5. 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 levelsas 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

6. State of Idaho Snake River Basin Adjudication (SRBA)

7. SRBA • Idaho Power Company, Swan Falls Dam

8. SRBA • Swan Falls Dam • 9,450 cfs at Swan Falls dam (1900 to 1919 priorities) • 8,400 cfs capacity • Swan Falls Agreement • July 1, 1985 • Subordinated flows (3900/5600) • Legislation to provide funding for adjudication of the Snake River Basin • SRBA Commencement • November 19, 1987

9. SRBA Status of the SRBA as of September 10, 2012

10. 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.

11. 1994 Conjunctive Management Rules • IDAPA 37.03.11 et seq.,Rules for Conjunctive Management of Surface and Ground Water Resources (CM Rules) • CM Rule 10.01—Scope • CM Rule 10.18—Reasonable Ground Water Pumping Level • CM Rule 20.03—Reasonable Use of Surface and Ground Water • CM Rule 42—Material Injury Factors • CM Rule 43—Mitigation Plans • CM Rules are facially constitutional • American Falls Reservoir Dist. No. 2 v. Idaho Dept. of Water Resources, 143 Idaho 862, 154 P.3d 422 (2007)

12. 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’sModflow • ESPAM 1.0, 1.1, 2.0

13. CM Rule Delivery Calls A&B Thousand Springs Surface Water Coalition

14. Thousand Springs—History • Blue Lakes and Clear Springs (commercial fish propagation facilities) called out junior ground water users • IDWR Director found material injury • Curtailment ordered to priority date of Spring Users’ water rights • Applied a trim line to remove certain junior rights from scope of curtailment • District court affirmed

15. 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

16. Clear Springs • Seniors 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.

17. TRIM LINE APPLIED 73,879 acres (60 cfs to reach) 295,692 acres (72 cfs to reach) 20% of Reach Gains to Facility (12 cfs)

18. Timing of Curtailment

19. A&B Irrigation District– History • United States Bureau of Reclamation surface water and ground water project • Unit B (ground water) called out junior ground water users • IDWR 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 system • A&B is not water short • District court affirmed • Held that decisions must be based on clear and convincing evidence

20. 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

21. 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.

22. A&B Irr. Dist. • A&B argued Director erred in failing to set a reasonable pumping level when it filed its call • Court 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

24. Locations of Geologic Cross Sections L’ K’ I’ F’ G’ J’ H’ K J F I G L H

26. Surface Water Coalition (SWC) • Seven irrigation entities called out junior ground water users • IDWR 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 shortfall • District court affirmed • On appeal to the Idaho Supreme Court

27. Questions?