Ridenbaugh Press/Water Rights

The Bureau of Reclamation will increase flows in the Snake River below Palisades Dam this week to about 18,000 cubic feet per second (cfs). Each day, starting May 13, the flow will increase about 15 percent until the maximum is reached on May 18. After the high flow is sustained for two days, it will be slowly decreased. The flow will return to the 30-year average of about 13,000 cfs during Memorial Day weekend.

“One objective of this operation is to approach 20,000 cfs at the gage near Heise, approximately 48 river miles downstream of Palisades,” said Roland Springer, Assistant Area Manager for Reclamation’s Upper Snake Field Officel. “Providing high flows at the same time that nature would provide them benefits native fish.”

These water releases will not affect Reclamation’s ability to meet its water delivery obligations. American Falls Reservoir will store the water that is passed through Palisades Reservoir to be used farther downstream.

The river will be fast and cold during the high flow period. Please use caution and be aware when recreating near the river.

The Idaho Department of Water Resources and the U.S. Geological Survey are partnering to develop a groundwater-flow model of Idaho’s Wood River Valley aquifer system. Agency representatives are holding a public meeting, March 19, at Wood River High School in Hailey to explain the project and answer citizens’ questions.

The groundwater-flow model will be constructed to simulate the effects of natural processes and human activities on the aquifer system. Particular attention will be given to how surface water features and the aquifer system interact. Groundwater models are important tools that resource managers can use for planning and managing water-use needs now and in the future.

The USGS has published a fact sheet explaining previous studies and the planned modeling work: http://pubs.usgs.gov/fs/2013/3005/. More details are available on the USGS study website at

http://id.water.usgs.gov/projects/wood_river_valley/index.html.

The Snake River Basin Adjudication isn’t the first general water rights adjudication in Idaho: There have been many, all smaller in scope than the SRBA but widely scattered around the Snake River Basin. One of the difficult issues in the SRBA for years has involved reconciling those earlier and more limited adjudications, which are generally not considered to be invalid, with the current one.

That came up in a subcase (65-23481) decided on February 27 by Judge Eric Wildman, bringing into play earlier adjudications in the Lemhi River and Payette River basins.

The specific case concerns a late claim to rights claimed by Allen Ranch LLP in the Payette River area, earlier reviewed by a special master.

In his description of the background, Wildman noted “The Special Master’s initial recommendation analyzed the late claim under two separate components: the stockwater claim; and the early and late period of use irrigation claim. The Special Master initially determined that the filing of the early and late period of use portion of the late claim was barred for failure of the claimant, Allen Ranch, LLP, to have the right adjudicated in the Payette Adjudication. The Special Master reasoned the Payette Adjudication decreed all rights to the Payette River established prior to October 19, 1977.

“As such, any rights established prior to that date but not adjudicated in the Payette Adjudication were deemed lost under principles of res judicata as well as the express language of the Payette Decree. Thereafter, the Claimant filed a Motion t0 Aller or Amend the Special Master’s Recommendation asserting this Court’s decision in Order Conditionally Granting Motion to File Late Notice of Claim; 0rder Requiring Filing of Amended Claim; Order Requesting Amended Director’s Report if Amended Claim is Filed, Subcases 74-15015 and 74-15861 (Jan 12, 2009). The Special Master followed the holding in Riggan and recommended that the claim be allowed to proceed based on law-of-the-case but recommended that the Court re-evaluate the holding in Riggan.”

The surprise in the case was the new decision’s ruling that the holding in the Riggan case was erroneous:

“Although, the Court’s ruling was not contested, it was in error in two respects. First, even if a “window” existed for the filing of a beneficial use claim, the claim would still have had to be confirmed in the final judgment, which it was not. … Similarly, in the instant case, the “window” is also irrelevant. The Payette Decree by its express language decreed all water rights established prior to October 19, 1977, and provided further that such rights having earlier priorities that were not claimed were deemed forfeited.”

Wildman said that he agreed with the special master’s legal reasoning, however, and because of that the claimant had not met the standard needed to support a late notice of claim.

He concluded, “this Court adopts the Amended Special Master ’s Report and Recommendation except for the part of the recommendation that the Claimant “be granted leave of court to file a beneficial use claim for the early and late irrigation season with a priority date no earlier than May 20, 1971, and no later than July l, 1971.” For the reasons previously explained, the Court rejects this part of the recommendation on the basis that the Claimant has failed to meet the “meritorious position” standard.”

After nearly two years of collaboration, technical analysis and public participation, the Bureau of Reclamation and the State of Idaho have released the Henrys Fork Basin Special Study Interim Report that describes potential future water supply alternatives for the basin.

“This interim report summarizes how information was gathered, the overall study process, and it outlines how potential alternatives will be carried forward in the years ahead,” Basin Study Activity Manager Robert Schattin said.

This was a collaborative effort involving a stakeholder’s workgroup which included the Henry’s Fork Watershed Council, irrigation districts, conservation organizations, universities, the Henry’s Fork Foundation, as well as federal and state agencies. The interim report identifies a wide range of reconnaissance-level alternatives listed under five subheadings that include:

Existing and new surface storage alternatives
Managed ground water recharge
Agricultural conservation and management
Municipal and Industrial conservation alternatives
Market based alternatives

The final phase of the study will last about a year and conclude with a final basin study report by the end of 2013.

Henrys Fork Basin Study Interim Report

The Landsat Data Continuity Mission is scheduled for launch Feb. 11, 2013 from Vandenberg Air Force Base in California. The LDCM is a joint NASA and USGS mission that will be called Landsat 8 upon launch. Landsat 8 will collect visible, infrared, and thermal data over the same area of the earth every 16 days. Landsat 5 was recently decommissioned after 28 years of operation. Landsat 7 has been in operation since 1999.

The first Landsat satellite was launched in 1972, and in 1975, the Idaho Department of Water Resources became one of the earliest users of the data. IDWR uses Landsat data for water management and administration because it is an operational satellite with ideal spatial resolution and it has a large archive for historical analysis.

In 2000, in partnership with the University of Idaho, IDWR began using Landsat for mapping evapotranspiration. Landsat is the only operational satellite that provides high resolution images that can be used to compute and map ET for individual agricultural fields.

This Landsat-based ET data is incorporated into water budgets that support hydrologic models and it was recently used in a legal proceeding in the Idaho Supreme Court. In 2009, the State of Idaho won the Innovations in American Government Award for its use of Landsat-based ET data for water administration.

IDWR has used Landsat data for over 37 years to help administer and manage Idaho’s water resources. The 3.4 million acres of irrigated agriculture in Idaho accounts for over 90% of the water consumed. Landsat will continue to be important for Idaho because it is the only operational satellite that provides the detailed data, including a thermal sensor, necessary for water management and administration at the field level. Landsat data has been free since October 2008.

More information about how Landsat data is used at IDWR is online.

The November 20 SRBA Court decision on a water right claim didn’t reach the interesting question of whether the adjudication could set a water right decree in a case in which there was no water.

That claim was filed by the Idaho Water Resources Board, seeking zero cubic feet per second in Snake River flow at the Milner Dam. The flow at that point ordinarily is siphoned off completely by water users, and replenished below the Milner.

The claim was objected to by Idaho Power Company, which said both that the claim should not exist as requested, and that the state had not followed proper procedures in requesting it.

Other parties also objected, including the Idaho Water Users Association and a number of water districts.

A decision by a special master in the case held inn favor of the state board. An oral argument was held in October.

In reversing a decision by one of the adjudication’s special masters, it did disallow a water right with prejudice.

SRBA Judge Eric Wildman said that, first, the state did not provide for a zero-water right “when it adopted the 1976 State Water Plan as a matter of law.”

The plan does provide for a protected flow of 0 cfs at Milner Dam gsging station, and “the Special Master agreed with the Board’s position that when it adopted the above-quoted language in Policy 32 it appropriated, pursuant to its constitutional power, a water right for a zero cfs minimum stream flow at the Milner Dam Gaging Station. This Court disagrees.”

Willdman said that the Idaho Constitution (in Article 17, Section 7) “grants the Board two separate and distinct constitutional powers at issue here. First, it grants the Board the authority to ‘formulate and implement a state water plan.’ Second, it grants the Board the authority ‘to appropriate public waters as trustee for Agency projects.’ That the board has the constitutional authority to appropriate public waters is unquestioned. However, its authority in this respect is not unbridled. The plain language of Article 15, Section 7 itself provides that the Board may only exercise its authority ‘under such laws as may be prescribed by the legislature.’ And in this case the Legislature has enacted laws to regulate the method and means by which the Board may exercise its constitutional right to appropriate water.”

The board did not follow the prescribed “application, permit and license procedures” in the case of the Milner claims, Wildman said.

And, he said, the “plain language” of the 1976 water plan did not specially create a water right claim at the Milner Dam.

He noted that “the Board argues thst memorializing the zero cfs minimum stream flow established by Policy 32 as a water right is necessary to avoid uncertainty and confusion to water users as well as the water master in administering rights.”

But the judge countered, “a number of provisions already exist which effectively memorialize and provide for the enforceability of the policy. These include the 1976 Water Plan itself, which the Idaho Supreme Court held became effect upon adoption …”

More important, he said, was the SRBA General Provision 4 in Basin 02 (the mid-Snake River area). It effectively provides for the right in question, the judge concluded.

The Idaho Water Resource Board will hold the last public hearing in a series that began on July 18 and included meetings throughout the state. The Board will receive comments on proposed changes to the Idaho Comprehensive State Water Plan via mail, e-mail and during the public hearing scheduled in Coeur d’Alene on eptember 12 at the Coeur d’Alene Public Library, Library Community Room, 702 East Front Ave., Coeur d’Alene, Idaho. There will be a short presentation and a question-and-answer period prior to taking testimony.

The IWRB has undertaken a review and evaluation of the Idaho Comprehensive State Water Plan adopted on December 13, 1996. During the planning process the IWRB sought public participation and comment and is proposing changes. Electronic copies on CD and paper copies may be requested by contacting Diana Ball at (208) 287-4829.

A copy of the proposed plan and additional information is available at
http://www.idwr.idaho.gov/waterboard/WaterPlanning/StateWaterPlanning/State_Planning.htm

The public comment period commenced on Monday, June 18 and will remain open through the close of business on September 21, 2012.

Comments can be submitted electronically via e-mail to SWP@idwr.idaho.gov; sent via mail to IWRB, ATTN: SWP, PO Box 83720-0098, Boise, ID 83720-0098; or through testimony at the public hearings. After considering public comment and reviewing the proposed changes, the IWRB will consider adopting a final plan for submission to the 2013 Idaho Legislature.

The Idaho Water Resource Board (IWRB) will receive comment on the proposed Treasure Valley Comprehensive Aquifer Management Plan (CAMP) during public hearings scheduled for Monday, September 10, 2012 in Caldwell at the Caldwell Public Library, 1010 Dearborn St., and Tuesday September 11, 2012 in Boise at the Idaho Water Center, 322 E. Front St. A copy of the proposed plan and associated documents are available on the Idaho Department of Water Resources Treasure Valley CAMP Web site.

In March 2010, the IWRB appointed an Advisory Committee comprised of representatives from water providers, local governments, utilities, business interests and conservation groups. Between April 2010 and June 2011 the committee held regular meetings. The result of those meetings is the proposed CAMP for the Treasure Valley. The proposed Treasure Valley CAMP was accepted for public review by the IWRB at its meeting on May 18, 2012. After considering public comment and reviewing the proposed plan, the IWRB will consider adopting a final plan for submission to the 2013 Idaho Legislature.

The IWRB will hold a 60-day public comment period from August 1 to September 30.

Judge Eric Wildman on June 28 issued his decision and order on a challenge to a plan for delivering a final unified decree in the SRBA.
There were numerous challenges, involving a long list of parties and law firms in various ways weighing in on the final decree.

“Whether the term ‘persons’ rather than the term ‘parties’ should be used in reference to those who are bound by the Uniform Final Decree?”
“Whether duplicates of partial decrees entered pursuant to federal reserved water right settlement should be included in Attachment 2 to the Final Unified Decree with a remark cross-referencing the applicable settlement documents included in Attachment 4?”

“Whether the Court should issue a new order clarifying the definitions of de minimis ‘domestic’ and ‘stock water’ claims and the procedures for adjudicating deferred claims?”

“Whether the Final Unified Decree should include language clarifying that the results of water right transfers initiated and completed after the entry of a partial decree but prior to the entry of the Final Unified Decree are not superseded by the Final Unified Decree?”

“Whether the Final Unified Decree should include a finding that ‘Each partial decree was the result of a specific factual investigation related to the underlying water right,’ and that “Because the evidence adduced for each partial decree varied, the Final Unified Decree does not address what evidence is admissable in any subsequent proceeding?”

“Whether the Final Unified Decree should include a finding that the elements of each water right reflect the extent of beneficial use as of November 19, 1987?”

“Whether the Final Unified Decree should state that the quantity element of each water right defines the maximum amount of water that may be diverted?”

“Whether the tolling of the forfeiture period during the SRBA precludes the Director from considering beneficial use in water distribution proceedings?”

The first four of those, Wildman noted, were not opposed and “the Court set forth on the record at oral argument that it concurred with the reasoning in support of the Challenge and would adopt the proposal advanced by the party who raised the issue.”

The next four, sought by the city of Pocatello and several ground water districts, involved more complex questions, to “define the scope of the preclusive effect of the partial decrees included in the Final Unified Decree …”

Wildman said he “rejects the inclusion of the proposed provisions. As a general matter, the Court declines to include provisions in the Final Unified Decree for the purpose of advising or influencing tribunals in future proceedings as to the legal effect of a partial decree issued in the SRBA. The issue of what pre-decree evidence may be discoverable, relevant and/or admissable in a given future post-decree proceeding is simply not an issue propoerly before this Court at this time and will not be considered.”

He ordered that the term “persons” rather than “parties” would be used in the final order.

He said that “duplicates of partial decrees entered pursuant to federal reserved water right settlements should be included in Attachment 2.”

Governor C.L. “Butch” Otter on July 11 named Gary Spackman director of the Idaho Department of Water Resources, where Spackman has been interim director for the past three years.

Spackman – a 26-year veteran of State government – previously was administrator of the department’s Water Management Division, manager of the agency’s Western Regional Office, and a hearing officer on contested water rights cases. He became interim director in June 2009 with the resignation of Director David Tuthill.

Spackman, who grew up on a small dairy farm, has a bachelor’s degree in agricultural and irrigation engineering from Utah State University and a law degree from Brigham Young University. He is a registered professional civil engineer and practiced law in southeastern Idaho before going to work for the State.