A Jerome judge issued a restraining
order Tuesday preventing Idaho Water
Resources Department Director David
Tuthill from shutting off wells that
would dry up more than 36,000 acres of
crops and reduce water for dairymen,
food processing plants and 13 Idaho
cities.
Fifth District Judge Jon K. Butler
issued the order at the request of the
Idaho Ground Water Appropriators, the
North Snake Ground Water District and
the Magic Valley Ground Water District,
who represent 771 groundwater users in
the Magic Valley.
Tuthill was poised to issue an order
May 14 forcing the groundwater users to
shut off their pumps to meet the water
rights of two trout producers.
Butler set a hearing for May 30 to
hear arguments on the lawsuit filed by
the groundwater users.
The groundwater users' lawsuit is the
latest skirmish in a water dispute
between them and surface water users who
depend on water from the Eastern Snake
Plain Aquifer. The aquifer is an
underground water source the size of
Lake Erie, that underlies the state from
Ashton west to King Hill. The lawsuit
could determine who controls water all
over Idaho, including the Treasure
Valley.
Water rights
Idaho water law, like water law
across the West, is based on the
doctrine that first in time is first in
right. The oldest water right is the
senior right.
In times of drought, users with
newer, junior rights are forced to stop
using water. Groundwater users' rights
are junior to surface water users,
including the fish producers.
Tuthill's order, if carried out,
would be the largest curtailment under
the state's first-come, first-serve
water policy in history.
The warning letters were 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 Foods Co.
The delivery calls were made under
rules for managing groundwater and
surface water upheld earlier this year
by the Idaho Supreme Court. In that
lawsuit, it was senior water users
challenging the state's administration
of water rights.
The Idaho Supreme Court supported the
first-in-time doctrine but said the
state had some discretion to balance the
needs of senior and junior users.
With this lawsuit, groundwater users
are urging the court to go farther and
consider how another constitutional
doctrine, requiring the state put water
to its full economic use, balances
against the first-in-time doctrine.
The dispute
These seemingly clashing concepts
have been at the heart of the dispute
that has pitted the Upper Snake River
Valley and large portions of the Magic
Valley against the water-rich region
reaching from Rupert and Burley through
Twin Falls, Buhl and Hagerman.
"Our members were backed into a
corner by the threatened curtailment
orders and had no choice but to turn to
the courts to protect their lawful water
rights," said Tim Deeg, president of
Idaho Ground Water Appropriators. "I'm
optimistic that we'll be able to solve
these issues and begin setting the stage
for a resolution based upon proper
management of the aquifer and the
benefits of all right holders."
Members of Idaho Ground Water
Appropriators include farmers, dairymen,
food producers and 13 Idaho cities,
including Dietrich, Hagerman, Hazelton,
Shoshone, Jerome, Richfield, Wendell,
Gooding, Paul, Heyburn and Rupert.
The order
Tuthill's proposed order came after
senior surface users and junior
groundwater users were unable to reach
an agreement at Gov. Butch Otter's water
summit in Burley in April.
"We do adhere to guidance from the
court in water distribution matters,"
Tuthill said. "We'll evaluate the order
from the court and make our next step
based on our assessment of the law."
Before Tuesday's restraining order,
Tuthill's order would have forced
farmers in portions of Blaine, Butte,
Gooding, Jerome, Lincoln and Minidoka
counties to dry up their crops. Cities
from Hagerman to Carey could require
homeowners to cut back lawn and garden
watering.
It also could force commercial,
industrial, municipal and stockwater
users to lose access to their water. But
ultimately these users take far less
water than farmers and can afford to pay
off the fish producers.
Dairies already have an agreement
pending with senior surface water users.
State officials have tried to pay some
fish producers to subordinate, or give
up, their senior rights.
Drying up 36,000 acres would have far
greater economic impact on the state
than buying those rights. The fish
producers have rejected the offers.
But the economic impact could expand.
Twin Falls Canal Co. and several other
Magic Valley irrigation companies and
districts have similar calls made that
if enforced in a dry year could force
farmers to dry up hundreds of thousands
of acres all the way northeast to
Rexburg.
The cost of water
That could have dramatic effects on
the economy of the entire state. A Utah
State University report commissioned by
the Legislature in 2004 found that
curtailing water rights junior to 1949 —
when most groundwater pumping for
farming began — could cost Idahoans
$204.3 million. Curtailing rights junior
to 1961 could cost $130 million.
Attorney John Simpson, who represents
Clear Springs Foods and Twin Falls Canal
Co., said his clients are being injured
every day they don't get the water that
they are entitled.
"We'll find out in this hearing
whether first-in-time-is-first-in-right
is still the law in Idaho," Simpson
said.
Read Rocky Barker's blog at
Idahostatesman.com. To offer story ideas
or comments, contact him at rbarker@idahostatesman.com
or 377-6484.
