Friday, November 9, 2012

Judge orders water release at Magic

Elgee now disqualified from case on motion filed by canal company

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By TERRY SMITH
Express Staff Writer

The normally placid waters of the Big Wood River below Magic Reservoir, as shown here, are now raging as the Big Wood Canal Co. releases large amounts of water so a hydraulic leak can be repaired at the Magic Dam hydroelectric plant.

Big Wood Canal Co.’s decision to begin a drawdown of Magic Reservoir late last month came after the company was ordered to do so by Blaine County 5th District Court Judge Robert Elgee.

The judge issued his order on Oct. 23, the same day that Magic Reservoir Hydroelectric filed a lawsuit against the canal company seeking an order for release of water so dry repairs could be made to a leaking hydraulic oil line at the Magic Dam hydroelectric plant. Otherwise, Magic Reservoir Hydroelectric argued in its complaint, it faced the possibility of fines of up to $32,500 a day from the U.S. Environmental Protection Agency.

In his order, called a writ of mandamus, Elgee noted that he had reviewed the materials filed by Magic Reservoir Hydroelectric, a wholly owned subsidiary of J.R. Simplot Co., before making his decision.

The writ of mandamus ordered Big Wood Canal Co. to “commence the immediate release of water from Magic Reservoir at the fastest amount safely possible to a level below the location of the hydraulic oil leak.”

If the release of water did not begin, Elgee ordered that the canal company appear at a hearing on Nov. 5 to “show cause why Big Wood Canal Company should not be ordered to do so.”

Big Wood Canal Co. announced on Oct. 29 that it was beginning the release of water that day.

The Nov. 5 hearing was never held. Instead, the canal company, through Gooding attorney Craig Hobdey, filed a disqualification motion against Elgee on Nov. 1.

Elgee had no choice but to step down from the case, since Idaho judicial rules give a litigant the right to disqualify one judge without stating a reason.

The case has now been assigned to 5th District Judge Jonathan Brody, who normally presides in Minidoka County. A hearing before Brody has been scheduled at the Blaine County court building in Hailey for Nov. 20.

In addition to the drawdown of water from Magic Reservoir, which the hydroelectric company argued that Big Wood Canal Co. was contractually obligated to do, Magic Reservoir Hydroelectric is also seeking in its complaint an award of attorney fees and “such other costs and relief as the court deems just and equitable.”

In its Oct. 29 announcement regarding the release of water, Big Wood Canal Co. stated that the reservoir then held about 54,000 acre-feet of water and that a drawdown of about a third of that would be required so that the repair could be made.

The company announced that the drawdown would begin slowly but would later be increased, with water being channeled first down the Richfield Canal and later down the historic bed of the Big Wood River.

The Big Wood River below Magic Reservoir, typically fed by dam seepage, springs and occasional releases from the reservoir, is a popular fishing spot for both fly rod and spin reel fishermen. Some fishermen have complained that a large release of water would damage the fishery by washing fish downstream to where they would later be stranded and die.

Fishermen reported last weekend that the river below the dam was higher than normal but that fishing was still good. However, by Monday, anglers reported larger amounts were being released and the section of river was “unfishable.”

Those assessments are confirmed by stream flow data available at the U.S. Geological Survey WaterWatch website.

On Sunday, the USGS reported a stream flow below the reservoir of 321 cubic feet per second. On Monday the flow was reported as 775 cfs while on Tuesday and Wednesday the flows were at 1,080 cfs each day.

On Thursday, the stream flow was 1,130 cfs, which the USGS reported was 2,592 percent higher than the average normal flow.

In comparison, the Big Wood River near Hailey was flowing this week at about 175 cfs.

Big Wood Canal Co. officials have thus far declined to comment on the issue. However, court documents state that the company resisted releasing water from the reservoir because it would be “extremely detrimental” to the stockholders as release could jeopardize water reserves for the 2013 irrigation season.

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Terry Smith: tsmith@mtexpress.com

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