The southern Idaho Surface Water Coalition and other parties had it out in SRBA Court on January 18 with the Aberdeen-Springfield Canal Company and the state of Idaho over whether the company has the right to use much of the Snake River water it long has used.
It also raises some significant questions about the meaning and application of the state’s accomplished transfer statute.
The coming decision, in a series of subcases brought to Judge Eric Wildman after a finding by Special Master Terry Dolan, could have impact on a number of cases around the basin.
Aberdeen-Springfield has long-established water rights for its customers, a point not in dispute. Decreed through the Rexburg Decree and then the Eagle Decree in 1969, the organization has had water rights to delivery generally for agricultural and domestic uses.
Their position was complicated, however, by one ongoing condition and by a recent series of settlements and claims.
The Surface Water Coalition, represented in court by attorney Travis Thompson, said that much of Aberdeen-Springfield’s water – he estimated 70% – is “lost,” drained through the canal system, so that only a minority of the flow goes to beneficial use specified in the decrees.
That “lost” water also amounted, in part at least, to a recharge of the declining Snake River Plain aquifer. In 2002 the state of Idaho made moves toward encouraging recharge of the aquifer. In 2007, Aberdeen-Springfield filed an amended claim which mentioned only irrigation and – Thompson said – not specifically any recharge. But some debate has persisted about the relationship between the state and the canal company over the recharge and lost flow.
“We have conflicting testimony in the record,” he said, and he indicated that significant gaps in evidence remain.
If Aberdeen-Springfield is allowed to keep its existing diversions, he suggested, that amounts to an accomplished transfer, an expansion of use. When an objection is filed alleging such an expansion, he said, the case must go back for evaluation to the Idaho Department of Water Resources. “I still think the statute is mandatory,” Thompson said. “I don’[t think you can waive it.”
Instead, Dolan delivered an opinion which in part upheld the district’s (and state’s) contentions.
Wildman said that common practice in the SRBA has often involved simple decisions by the master in the subcase, or the judge – that it has stayed in the court system. He asked at what point an objector has to ask for remand to the department.
Attorney Kent Fletcher, for the Minidoka Irrigation District, said that the parties generally have wanted to move cases forward as best they can, so none have been inclined to want to return cases to the IDWR.
Randall Budge, attorney for Aberdeen-Springfield, said some studies have shown the amount of lost or recharged water is less than the 70% cited in some places.
He argued that the core of the case was that the Surface Water Coalition was in effect trying to ensure that some users, such as Aberdeen-Springfield, are left with relatively junior rights, less senior than those they have been assumed to have, and to push for more groundwater mitigation.