Water decision moves state toward aquifer resolution

The powerful irrigation districts who have been battling with farmers and others who pump water from the Eastern Snake Plain Aquifer in southern Idaho were declaring victory last week from a decision issued by a former Supreme Court Justice.

The Surface Water Coalition said Justice Gerald Schroeder’s ruling on their demand the state shut off the pumps of thousands of groundwater pumpers upheld their position that their right to flows from the aquifer, including those that are stored in reservoirs, come first ahead of groundwater users. In other words, first come, first served.

The decision, which is not binding, did suggest that in times of shortage replacement water should be provided in the year farmers need it.

"The decision found that the department had not been requiring either enough water or requiring that it be timely provided," said Tom Arkoosh, a Gooding attorney who represents the NorthSide Canal Co.

But once again the real winner is the state, which retained its right to use professional judgment when it allocates water between different users. Schroeder said surface water farmers with senior rights have a right to enough water for their crops and “reasonable,” carryover in reservoirs. Reasonable, Schroeder defined, as enough water to get the farmers through the next year.

The state doesn’t have to order groundwater users to turn off their pumps just to keep reservoirs full.

Schroeder even ruled one canal company has a right to expect less water at its headgate that it claimed. Now Idaho Water Resources Director Dave Tuthill has to make his decision based on Schroeder’s ruling. Once he does the two sides have the right to appeal to the Idaho Supreme Court.

Schroeder issued a similar decision for another groups of water users in the Thousand Springs area. If either of the two sides are unhappy they will invest millions of more dollars in their lawyers to get these issues put to rest.

But past decisions suggest that the state’s path out of the crisis over aquifer use is clearing. The state plan calls for allowing groundwater users to pay surface users when the senior users water is short, programs to dry up some farmers and to buy some fish farms, like the Pristine Springs trout farm last month, efficiency programs for all sides and recharge projects to increase the flows from the springs.

Recharge still hangs on decisions on cases between the state and Idaho Power, which largely opposes recharging water into the aquifer it could otherwise run through its turbines.

But after more than five years of bitter court battles where farmers have spent millions of dollars on attorneys instead of on water projects, the table for meaningful negotiations is nearly set. Then, when they agree on a aquifer wide plan, they will need to come to us, the rest of the state’s taxpayers, to justify our costs of the final resolution.