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Fish Producers Have a Valid Argument in Seeking Curtailment of Junior Water Rights by Editors Editorial, Times-News, November 21, 2003

Surface water users have reason to turn to the courts

Regardless of how much snow falls across the Snake River Basin this winter, Magic Valley water users may have no alternative but to ask the courts to clarify water rights between fish producers and groundwater users.

A group of fish producers that includes Clear Lakes Trout Co., Rangen Inc., and Rim View Trout Co., has filed lawsuits in 4th District Court against the Idaho Department of Water Resources. Their objective: to force the agency into curtailing wells used by junior water right holders.

The law seems to be on the producers' side. Idaho water doctrine follows the principle of prior appropriation, which says a water user "first in time is first in right." And fish producers have senior water rights that go back to the mid-1960s, before a good portion of well users' water rights.

But the lawsuit is pushing for more than just water. The fish producers want the courts to strike down state rules allowing groundwater users to submit mitigation -- or shared water use -- plans that satisfy senior water rights.

Two years ago, groundwater users and surface water users came to a last-minute agreement on how to share resources without forcing a shutdown of groundwater wells. Fish producers have kept working with groundwater users. Still, their water supplies have continued to suffer. With the agreement set to end by year's end, the hatcheries appear ready to go a different route.

Undoubtedly, the years of drought in Idaho have dried up patience as much as water. But drought is a major reason why water rights exist in the first place. Without a process that recognizes those who have first rights in water emergencies, the state's water doctrine would become a flood of havoc.

What the debate boils down to is drought and management. Overallocation of groundwater rights in Idaho has forced Water Resources to go easy in its enforcement of senior water rights.

The agency deserves credit for establishing new groundwater management areas in recent years to monitor illegal use of unappropriated water. The agency has used technology, with satellite images detecting overwatered areas, and a new computer model to chart pumps' effect on canyon springs.

But compared to groundwater users, surface water users are still the ones losing more water from declining spring flows and regulated use. It seems apparent that the agency is not properly enforcing prior appropriation laws during times of dire water shortages.

Nobody relishes the role of taskmaster, especially when so many water users contribute to Idaho's economy. And it doesn't help to pit user against user in an agricultural community.

But if Water Resources doesn't force junior water right holders to cut back use, the state's courts will have to.

As for the conjunctive water management that interconnects surface water and groundwater uses, the courts may be the best place to set the matter straight.

Groundwater users will argue that lawsuits destroy the accord made among members of the ag community. That's undeniably true. They will also contend that curtailing well use won't guarantee quick refills of fish producers' channels and ponds.

But things can't get much worse for surface water users. With so many wells sucking water from the aquifer on the north side, something has to be done to help restore fish producers' water.

It only makes sense that they'll eventually use a judge to get it, if they can't get the water their right entitles them to.