Wednesday, December 19, 2007

Water use disputed in upper Big Wood

State department receives 2,999 ?objections? to water right claims


By GREG STAHL
Express Staff Writer

David Tuthill Rich McIntyre

Water in the West is both scarce and valuable. It’s the New West’s gold, and recent objections filed with the Idaho Department of Water Resources over water allocation in the Wood River Valley help drive the point home.
The department earlier this fall completed a review of water rights—called adjudication—for distributing water in the Wood River Valley and set a Nov. 14 deadline for objections to be filed. It is one of the final basins in the Snake River Basin Adjudication, which has been ongoing since 1987.
The intent of the process is to resolve a 1982 court finding that water throughout the Snake River Basin is over-appropriated.

Of the 2,199 water rights adjudicated in the upper Big Wood River Valley, the department received 2,999 “objections” that have been consolidated into 614 sub-cases. Water Resources Adjudication Bureau Chief Don Shaff said many of those rights are uncontested while others have received multiple objections.
Idaho Department of Water Resources Director David Tuthill said the objections typically involve all parameters of water rights.
“Any element can receive an objection: name, point of diversion, point of use, flow, number of acres irrigated,” he said. “I would expect to see objections to virtually all elements in one case or another.”
Shaff said the department is in the process of compiling all of the objections, and a full report might not be available until mid-March.
“It will take the assigned staff some time to burrow down into it and sort through it,” he said.
Tuthill pointed out that the number of sub-cases amounts to about 27 percent of the adjudicated rights. The department had predicted that number might be closer to 40 percent.
“We expected a higher objection rate in the Big Wood because of the huge number of changes in water rights and the great number of pre-existing decrees and the complexity of water rights in the basin,” Tuthill said.
The director explained that there’s been a great deal of legal activity in the Big Wood basin through the decades. Also, some water rights have changed locations.
“In this basin we’ve had, proportionately, more transfers of water rights, and that would be changed in diversion or point of use,” he said. “There have been a great number of water right disputes in the Wood River Valley historically, so we expected a high percentage of objections.”
While the director’s perspective was optimistic, Wood River Legacy Project founder Rich McIntyre looked at a glass half empty.
“They knew this was going to be an extremely contentious basin, which is why they left it for next to last,” he said. “I think they were prepared for the worst, and I think that’s pretty much what they got.”

Last winter the Idaho Legislature and Gov. C.L. “Butch” Otter passed the Wood River Legacy Bill into law. For the first time in Idaho’s history, the law creates a legal tool for citizens to donate privately held water rights to the state for the dedicated purpose of stream flow restoration—without losing ownership or the historic priority date of the right.
The years of acting as proponent of the legislation have given McIntyre a hands-on view of water in the basin.
“I think there are two issues that have led to a great deal of the contention in the adjudication process in the Wood River Valley,” he said. “One is that the valley has experienced a fairly rapid shift from agriculture to developments and homes in 20 to 30 years.”
What that means is that existing water rights and the ways they are divided and used are under increasing scrutiny.
“Another reason the department waited so long and one of the reasons it’s likely to be as contentious as it is, is because there is a great deal of money in the Wood River Valley,” McIntyre said. “There’s more willingness among the people with money to litigate their water rights.”
Objection forms provided by the department are relatively simple and consist of four pages and a short space in which an objection can be explained. An objection filed by Boise attorney Brian Ballard on behalf of Wood River Valley landowner Harry Rinker alleges that one of Rinker’s water rights was “stacked” when in fact it had been previously split.
Water Resources Southern Region Manager Allen Merritt pointed out that those who filed objections may have filed on their own water right or on someone else’s.
“You could object to your own, or you could object to anybody’s,” he said.
Merritt, too, said he was not surprised by the number of objections filed on rights in the upper Big Wood. “There’re a lot of issues in the Big Wood that are difficult,” Merritt said. “Just the basin itself has a lot of complex water-right issues that I’m not surprised people would object to. There are saved-water issues, dry-stream issues. There are a lot of things that are kind of peculiar to the area that I could see people concerned with.”
Both Merritt and Shaff pointed to a 1909 statute called the Frost Decree, which separates tributaries to the Big Wood from the overall system. Under the Frost Decree they’re allowed to be dried up, and the water never reaches the main Big Wood channel.
“That decree and subsequent decrees on tributaries to the river designate those streams as separate for administrative purposes,” Shaff said. “That concept has been challenged. That contributed to a number of objections.”
But that is only the tip of the iceberg, and the scope of the objections won’t become clearer until the department moves more of its mountain of resulting paperwork. Nevertheless, Tuthill said he was “pleased” with the 30-percent consolidated sub-case figure and pointed out that 2008 would be a year to work through the objections. And that involves a process.
The end result for some will be a Snake River Basin Adjudication District Court trial in Twin Falls, in which 5th Judicial District Judge John Melanson will preside. But Tuthill said he hopes few of the objections filed will make it that far.
“With the long history of contentiousness over water rights in the basin I would expect a few trials,” he said. “Due to the value of water in the upper Big Wood and the history in the area I would expect a few.”
Within two years, Tuthill said, most objections should be resolved, and most will not go to trial.
“The most common way to resolve an objection is for the objectors, the claimant and the department to look at potential solutions,” he said. “Often times there is a solution within the scope of what would be permissible by law. Most cases don’t even make it to the stage of special master hearing.”
There are three special masters appointed to the Snake River Basin Adjudication District judge, and each is assigned a basin. Special hearings will commence within a few months, Tuthill said, explaining further that there are three primary areas for resolving objections. The first is to resolve the dispute during the period before a hearing.
“Right now we’re already resolving objections,” he said.
The second opportunity will be at an initial hearing, and the third will be after the initial hearing.
“For a few objections this process will not be adequate,” the director reiterated. “I would suspect there will be a few trials to resolve a few objections.”
In the meantime, McIntyre pointed out that the Wood River Legacy Project could become a mechanism by which landowners could continue to put their water rights to beneficial use while they are being challenged. “With over 600 protests filed on individual water rights, there are going to be people with water rights who are going to be wondering if their water rights are going to hold up during the protest period,” he said. “I think there are a significant number of water rights in the Wood River Valley that have only been used intermittently.”
Under prior-appropriation water-allocation doctrine, those who hold water rights must use the water or forfeit the privilege to use it. McIntyre was predicting that at least a portion of the objections fall into this category.
Rather than spending money and time to install the infrastructure to use a contested water right, he said, people waiting for the results of an objected water right could donate the water to the Legacy Project, and that would constitute beneficial use under the new law.
“Their right is being protested,” he said. “Under Idaho law we still operate under the use-it-or-lose-it program. They can accomplish the same objective (of beneficial use) by listing it with the Legacy Project while the protest is underway.”
The Snake River Adjudication is among the largest adjudications in the country.
“We’ve just passed barely over 20 years,” Tuthill said. “In terms of large, basin-wide adjudications, this one’s gone remarkable quickly. As we compare notes with other states, we find we’ve had a lot of success with our adjudication.”




 Local Weather 
Search archives:


Copyright © 2024 Express Publishing Inc.   Terms of Use   Privacy Policy
All Rights reserved. Reproduction in whole or in part in any form or medium without express written permission of Express Publishing Inc. is prohibited. 

The Idaho Mountain Express is distributed free to residents and guests throughout the Sun Valley, Idaho resort area community. Subscribers to the Idaho Mountain Express will read these stories and others in this week's issue.