Friday, March 30, 2007

Proof demand spoils Legacy

Notwithstanding the enthusiasm of state Sen. Clint Stennett and Blaine County Commissioner Larry Schoen, once again the Idaho Senate has ruined a perfectly good bill, the Wood River Legacy Project (SB 1139), by adding the words: "The burden of proof shall be on the owner of the donated water right to demonstrate by clear and convincing evidence that injury will not result to other water rights."

What evidence could the owner present and for how many other water rights? It is requiring that the owner prove a negative, a virtually impossible task.

Imagine: A landowner with a "prior appropriation" water right, has been using water, that would otherwise flow into the Big Wood, to irrigate by movable sprinklers several hundred acres that are barely appropriate for a crop of hay. He is doing this to preserve the right. Accept (there are studies to establish this) that by this method of irrigation over 50 percent of the water used is lost to evaporation. The landowner wishes to donate under the bill the water he is presently wasting and preserve his water right. But the Senate asks him to prove a negative by "clear and convincing evidence," the expense of which, even if it could be done, would be enormous. Why would he attempt to do it?

Isn't this like a charity asking a donor to prove that no other charities will be injured by the gift before the charity accepts it?

Did our representatives not understand this when they added the words? Or, worse, did they?

Gerry Morrison


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