No one knows for sure how groundwater flows.
That uncertainty complicates already difficult water-rights disputes, and even water experts sometimes have to rethink their decisions. Such was the case when Idaho Department of Water Resources Interim Director Gary Spackman issued a recent finding that two Snake River trout producers deserve more water.
The July 19 final order determined that junior water users in water districts 130 and 140 must compensate for or shut off groundwater to an additional 54,000 acres, ramped up over five years, to offset the water promised to Blue Lakes Trout Co. and Clear Springs Foods. That’s more than a third again what the groundwater users must already provide.
In a series of cases that have dragged out since 2005, the trout companies contended that groundwater users have reduced spring water the two are entitled to through their five water rights. Spackman’s predecessor, former IDWR Director Dave Tuthill, initially ruled that only three rights were affected, requiring groundwater users to develop compensation plans to avoid shutting down water to 130,000 acres.
Challenges followed to the IDWR methods of calculating water amounts and the data itself, because very little water data exists prior to the late 1980s and early ’90s. The state agency had to estimate water flows for 20 years earlier, when the rights were bought. Questions were raised about seasonal variation in water amounts because groundwater users argued they shouldn’t have to supply anything above low-season flow. The lack of data and the computer models used to make up for the missing data are just a few of the points that have one part of the case headed to the state Supreme Court by December at the earliest.
In the meantime, the appeals court ordered Spackman to re-evaluate the final two water rights, giving benefit of the doubt to the senior water users — the trout producers — as the law directs rather than the junior users. That resulted in this month’s order recognizing a violation of the two oldest water rights, which both sides said they may appeal.
Randy MacMillan of Clear Springs Foods said his company is happy about IDWR’s reversal, even though it took five years to do it. While the agency’s numbers may be correct, he said, the calculations used to produce them are not clear, so Clear Springs hasn’t decided whether to appeal.
The Idaho Ground Water Appropriators also question the calculations, but don’t suffer from indecision. Lynn Tominaga, the group’s executive director, said groundwater users will ask for a hearing on the latest IDWR results. He said the timing of the order introduces confusion — the calculations are different from those used for the other three water rights pending before the state Supreme Court.
“A lot of the information is based upon an extrapolation of the data,” Tominaga said. “It’s not based on fact.”
Those managing the groundwater districts won’t have to respond to the order this year, so they’ll just watch as another lobe of litigation develops.
“I don’t know too much about the new report yet,” said Lynn Carlquist of the North Snake Groundwater District, “But there’s probably going to be more pumpers affected.”
Laura Lundquist may be reached at llundquist@magicvalley.com or 735-3376.
