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It’s the Law: Recent Court and
Administrative Decisions of Interest
Garrett M. Kitamura & Payton G. Hampton
Whittaker v. IDWR, 2024 WL 388494 (2024)
3
Applicants McConnells – Main Characters
 Applicants Bruce & Glenda McConnell
o Own property in Lemhi County adjacent to Lee Creek
o Own 7 water rights adjacent to the property
• Priority dates between 1883 – 1909
 Lee Creek is a tributary system
o Confluence of Porcupine Creek and Stroud Creek form Lee Creek
o The location of the confluence changed in 1932 (more on that later)
4
McConnells (cont.)
 McConnells had three points of diversion
o Upper Diversion in Porcupine Creek
• Upstream of the modern confluence with Stroud Creek; downstream of the historic confluence
o Lower Diversion in Lee Creek
• Downstream of the modern and historic confluence
o Kauer Ditch diverted water from Stroud Creek to Porcupine Creek
• First created in 1932 by McConnell’s predecessor (more on that later)
• Diverted full amount of water entitled to McConnell’s predecessor
• Upstream of everything else relevant to this story
5
Transfer and Protest
 McConnells failed to list Kauer Ditch or Lower Diversion in SRBA
o McConnell’s cease use of Kauer Ditch and Lower Diversion in 2014 and 2020, respectively,
because of IDWR enforcement
 McConnells could not divert full amount of their water right using only the
Upper Diversion
o Filed transfer application to add Lower Diversion to water right
 James Whittaker and his LLC ranch (McConnell’s upstream neighbors)
protested the transfer
o Whittaker alleges injury would occur because McConnells would have administrative
access to his water right
o Lower Diversion would allow senior-right McConnells to call for water from Whittaker’s right
in times of shortage
6
Protestor James Whittaker
 Whittaker has water right with 1916 priority (i.e., junior)
 Whittaker uses West Springs Ditch to divert water from Stroud Creek for water right
o Built in 1932 by Whittaker’s predecessor after a flume failed
o McConnells’ predecessor allowed Whittaker’s predecessor to build West Springs Ditch
o In exchange, McConnells’ predecessor allowed to build Kauer Ditch
o West Springs Ditch caused Lee Creek confluence change
 Historically, only used to divert water from the West Springs tributary and any excess water in Stroud
Creek in high water years or during flood events.
o Excess water returned to Lee Creek via Bohan Ditch
o Has been diverting the entire flow of Stroud Creek since 2014
7
Bohan Ditch
West Springs Ditch
(Whittaker)
West
Springs
Historic Confluence
Modern Confluence
Upper Diversion (McConnells)
Lower Diversion (McConnells)
North
8
Bohan Ditch
West Springs Ditch
(Whittaker)
West
Springs
Historic Confluence
Modern Confluence
Upper Diversion (McConnells)
Lower Diversion (McConnells)
North
9
IDWR Review
 IDWR determines McConnells’ transfer will not injure Whittaker
o Hearing Officer: What’s the location of the confluence?
• If historic confluence (upstream of Lower Diversion), then no injury. Whittaker was already subject to
McConnells’ senior priority right vis-à-vis Upper Diversion
• If modern confluence (downstream of Lower Diversion), then yes injury. Whittaker is giving McConnells new
administrative access to his water right
o Hearing Officer: Historic confluence is the proper location
• West Springs Ditch was an unauthorized diversion
• IDWR Director affirmed
10
District Court Review
 District court sets aside Director’s order and remands matter
o Modern confluence applies
o Legality of the West Springs Ditch not at issue
o Alteration of stream flows was not an element of Whittaker’s water right and, therefore, did
not need to be claimed in SRBA
o McConnells’ application could be approved if subject to condition subordinating Lower
Diversion use to Whittaker
11
Idaho Supreme Court
 Supreme Court reverses district court
o West Springs Ditch is diversion—not alteration—and Whittaker failed to claim it in SRBA
• Diversion: man-made construct that alters natural course of all water, making it flow in different channels
(e.g., ditches). Time does not strip it of its diversionary character
• Alteration: change “natural existing shape or direction of water flow within or below the mean high watermark”
(e.g., cutting banks, removing vegetation, enlarging stream)
o Diversion is unauthorized
• SRBA decree did not list West Springs Ditch
12
Idaho Supreme Court
 Historic confluence is the proper location for injury analysis
o “The dissent argues that our decision will unnecessarily alter an irrigation system that has
been in place since 1932. However, we cannot escape the fact that the West Springs Ditch
is a man-made ditch constructed across the bed of Stroud Creek that was not claimed as a
diversion in the SRBA. There is no laches defense available for failure to claim a diversion
once the Final Unified Decree was issued in the SRBA.”
13
Takeaways
 Clarity on alteration vs. diversion
o Diversion is man-made changes to capture and redirect all water
• Longevity is of no moment
o Alterations are changes to natural shape or flow within OHWM
 Identifying proper confluence (or all watershed characteristics?)
requires setting aside unauthorized uses
o Even if it means turning the clock way back
South Valley Ground Water District v.
Idaho Department of Water Resources
(2024)
15
Background
 In June 1991, former Director Keith Higginson issued an order designating the
Big Wood River Ground Water Management Area (“Big Wood GWMA”), based
in part on findings that “surface and ground waters of the Big Wood River
drainage are interconnected” and the “[d]iversion of ground water from wells
can deplete surface water flow in streams and rivers.”
 Moratorium on new consumptive groundwater uses adopted in 1991.
 Some delivery calls brought under IDWR’s promulgated Rules for Conjunctive
Management of Surface and Ground Water Resources (“CM Rules”) beginning
in 2010s.
 Wood River Valley Aquifer Model Version 1.1 (“Aquifer Model 1.1”) first
published in 2019 after being in development since 2013.
16
Introduction to South Valley Ground Water District v. IDWR
 Anticipating an unprecedented drought in 2021—using the surface water supply index, and aquifer model
1.1, the Director commenced an administrative proceeding under Idaho Code section 42-237a.g., the
Ground Water Act, to determine whether water was “available to fill” junior groundwater rights in the
aquifer beneath the “Bellevue Triangle.”
 First time Director had ever exercised his discretion under the Ground Water Act to initiate proceedings
without a Petition of injury from an injured senior water appropriator.
 After a six-day hearing, the Director issued a Final Order on June 28, 2021, that found water was
unavailable to fill the junior ground water rights because pumping from the aquifer was affecting the use of
senior surface water rights in violation of Idaho’s prior appropriation doctrine.
 Rather than designating an area of common groundwater supply, the Final Order explained that the
Director had analyzed a “potential area of curtailment” (i.e., the Bellevue Triangle).
 The Final Order curtailed over 300 groundwater rights for the 2021 irrigation season commencing July 1,
2021. The curtailment lasted eight days, ending when the Director approved an amended mitigation plan
on July 8, 2021. The Director had rejected a prior mitigation plan presented by the groundwater districts
the day after the Final Order was issued.
17
Introduction to South Valley Ground Water District v. IDWR (cont.)
 South Valley Ground Water District and Galena Ground Water District (“the
Districts”) petitioned for judicial review.
 The district court (1) affirmed that the Director had the authority to initiate the
administrative proceeding under Idaho Code section 42-237a.g. of the Ground
Water Act; (2) concluded that IDWR's CM Rules did not limit or supersede the
Director's statutory authority in the proceeding;
 But (3) determined that the Final Order did not comply with the prior
appropriation doctrine because it did not (a) formally designate an “area of
common ground water supply” and (b) “conjunctively administer to material
injury” as defined in the CM Rules.
18
Bellevue Triangle—Area of Curtailment
 Heavy area of use of water for irrigation and a
source of water for Silver Creek and the Little
Wood River.
 South Valley Groundwater District primarily
encompasses the Bellevue Triangle.
 The Galena Groundwater District spans from
Bellevue north to Galena Summit along the state
Highway 75 corridor.
 Aquifer Model 1.1 predicts that groundwater use
in the Bellevue Triangle has a disproportionately
large impact on surface water flows compared to
other areas in the basin. It also constitutes 70%
of the consumptive groundwater use in the
Model's boundary.
19
Silver Creek
20
Parties to the Appeal
 IDWR- appealed district court’s
determination that the Director's
Final Order violated the prior
appropriation doctrine
 South Valley and Galena
Groundwater Districts- cross-
appealed, primarily challenging the
district court's determination that the
Director could initiate administrative
proceedings on their own (without a
claim of injury by senior water right
holder).
 Plus, other interested parties who
submitted briefing :
o Senior Surface Water Users- Big Wood
and Little Wood Water Users Association
and Big Wood Canal Company
o Other Junior Groundwater Users- City of
Hailey, Sun Valley Company
o Interested Party from Municipal Provider
Perspective- Veolia Water Idaho, Inc.,
the City of Coeur d'Alene
o Interested Party from Groundwater
Perspective- Idaho Ground Water
Appropriators, Inc.
21
Issues on Appeal
 Does the Director have authority to initiate administrative
proceedings—without a claim of injury from a senior water right—
under the Ground Water Act ?
 Is it correct that the Conjunctive Management Rules do not apply to
proceedings self-initiated by Director under the Ground Water Act ?
 Was the Director's Final Order inconsistent with the prior
appropriation doctrine?
 Did the proceedings initiated by the Director under the Ground
Water Act violate the Districts’ due process rights?
22
Does the Director have authority to initiate administrative proceedings—
without a claim of injury from a senior water right— under the Ground Water
Act?
 Plain language of Idaho Code section 42-237a.g unambiguously grants the Director
discretionary power to regulate the withdrawal of water from “any well” and the Ground
Water Act states that it is the Director's duty “to control the appropriation and use of the
ground water of this state as in this act provided. ...”
 Director can initiate proceedings when either “(1) when groundwater withdrawal would
cause material injury to a senior water right, or (2) when groundwater withdrawal would
exceed the natural recharge of the groundwater source.”
 Director has discretionary power to regulate the withdrawal of water from any well that
affects senior rights, regardless of the location of the well within or outside an organized
water district.
 Supreme Court’s view that Section 42-237a.g. serves as a critical administrative backstop
when water is scarce but individual water users cannot or have not filed delivery calls
under the CM Rules.
23
Do the Conjunctive Management Rules apply to proceedings self-
initiated by Director under the Ground Water Act?
 The Conjunctive Management Rules were promulgated by IDWR in 1994 and “prescribe procedures
for responding to a delivery call made by the holder of a senior-priority right against a junior.
 Districts argued CM Rules should apply-understandably because the CM Rules set out extensive
procedures and criteria for determining an area of common groundwater supply (CM Rule 31), for
determining material injury and reasonableness of diversions (CM Rule 42), and for evaluating
proposed mitigation plans.
 The Ground Water Act provides no comparable rules, definitions, procedures, or criteria to follow.
The CM Rules offer far more certainty.
 Court held that CM Rules do not apply to proceedings self-initiated by the Director under Idaho
Code section 42-237a.g and have specific language within them that state that the CM Rules do not
limit the Director’s direct statutory authority.
 CM Rules were promulgated only for situations where a water user initiates a delivery call, which is
not the case in self-initiated proceedings by the Director.
24
Was the Director's Final Order inconsistent with the prior
appropriation doctrine?
 Groundwater Districts first argued that the Final Order did not establish “an area of common
groundwater supply” as a prerequisite to conjunctive administration. This would provide notice to all
appropriators within that area and give them due process, as weel as ensure that proper priority is
accomplished within prior appropriation doctrine.
 IDWR argued that it had the comprehensive water records for the area and that it had already
established District 37, which encompasses the entire Wood River tributarily, so it was able to give
all appropriators notice and effectively administer a curtailment by priority.
 Court held that Section 42-237a.g. language gives Director more discretion than the CM Rules, and
only states that Director “may” establish an area of common ground water supply. Permissive, not
mandatory.
 Court also held that Director used best available science (Aquifer Model 1.1) to determine impacts
on Bellevue Triangle and ruled out other possible aquifers in Basin 37 as having anything but
negligible impact on the Bellevue Triangle. Court went into great detail on this point and relied on
Director’s findings that the flows on Silver Creek were directly effected by a shallow aquifer
underneath.
25
Was the Director's Final Order inconsistent with the prior
appropriation doctrine? (cont.)
 Groundwater Districts also argued that the Final Order did not make a finding of a “material
injury” to a senior water right holder as required by the prior case, Clear Springs Foods,
Inc. v. Spackman, which did address a delivery call made under 42-237a.g.
 IDWR argued that only the CM Rules require a finding of “material injury,” not Section 42-
237a.g. and distinguished the Clear Springs case because it was addressing a Petition
brought by seniors in a proceeding under the CM Rules, not in a proceeding initiated by
the Director.
 Court agreed with IDWR that a requirement of a finding of material injury is limited to cases
arising under the CM Rules because of Director’s separate powers under the Ground
Water Act.
 Emphasis that there is less process in favor of quickly restoring flow to senior water right
holders.
26
Did the proceedings initiated by the Director under the Ground
Water Act violate the Districts’ due process rights?
 Court held that the procedure provided to the parties below was
necessarily expedited, but within reasonable limits in light of the
imminent loss to senior right holders.
 Emphasis that the parties were given a 6-day hearing prior to
curtailment, even thought part of an expedited process.
 The Districts desired to argue that the mitigation plan proposed the
day after the Final Order was not given due process when it was
denied without explanation, however that issue was not properly
preserved for appeal because it was not raised before the district
court.
27
Legal Implications and Impact of Decision
 At its core, the prior appropriation doctrine “contemplates a balance between the ‘bedrock
principles’ of priority of right and beneficial use.”
 This case illustrates the complexities of striking that balance, especially during periods of
scarcity, and underscores the Director's discretion in protecting senior appropriators' rights
during such times.
 Highlights difficulties with practically applying conjunctive management—we know that
groundwater affects surface water and that the whole water system is interconnected.
Depletion of an aquifer will almost always deplete surface water flows.
 However, the extent of these effects are difficult to define and quantify, and as a result, no
groundwater management plan is perfect—based on modeling that is often an
oversimplification of a complex hydrologic system.
28
Legal Implications and Impact of Decision
 Idaho law establishes two paths for conjunctive administration: one when a water user makes a
delivery call against one or more groundwater rights users under the CM Rules, and the other
when the Director exercises his discretion under Section 42-237a.g. to limit or prohibit the
withdrawal of water from “any well” as we saw in this case
 Recognition that Section 42-237a.g. is an expedited process to quickly restore senior
appropriator’s flow, and junior appropriators will almost certainly have less process in
proceedings initiated by Director.
 Importance of Aquifer Modeling.
 This was the first time any parties had to go through the Section 42-237a.g. process.
 Possible future promulgation of rules for Director’s discretionary process under Section 42-
237a.g., similar to CM Rules, but more expedited?
29
Additional Impacts
 While IDWR pursued this appeal, the affected water users entered into a term sheet to implement a Big
Wood River Ground Water Management Plan.
 This Management Plan provided safe harbor to the ground water users in the Galena and South Valley
districts in exchange for mitigation by those ground water districts that included irrigation season limits,
required fallowing of a certain number of acres per year, and the purchase of additional storage water for
the senior surface water users.
 Agreements by juniors and seniors likely preferrable to uncertainly of a discretionary Section 42-237a.g.
proceeding.
30
Additional Resources
Link: Galena Groundwater District Letter to Members
Explaining the new Big Wood River Ground Water
Management Area Management Plan
Link: Idaho Water Resource Board Press Release
Regarding Term Sheet for New Big Wood River Ground
Water Management Plan
Thank You
32
For more information, contact:
 Garrett M. Kitamura
208.562.4893
GKitamura@parsonsbehle.com
 Payton G. Hampton
208.528.5254
PHampton@parsonsbehle.com

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It's the Law: Recent Court and Administrative Decisions of Interest

  • 1. parsonsbehle.com It’s the Law: Recent Court and Administrative Decisions of Interest Garrett M. Kitamura & Payton G. Hampton
  • 2. Whittaker v. IDWR, 2024 WL 388494 (2024)
  • 3. 3 Applicants McConnells – Main Characters  Applicants Bruce & Glenda McConnell o Own property in Lemhi County adjacent to Lee Creek o Own 7 water rights adjacent to the property • Priority dates between 1883 – 1909  Lee Creek is a tributary system o Confluence of Porcupine Creek and Stroud Creek form Lee Creek o The location of the confluence changed in 1932 (more on that later)
  • 4. 4 McConnells (cont.)  McConnells had three points of diversion o Upper Diversion in Porcupine Creek • Upstream of the modern confluence with Stroud Creek; downstream of the historic confluence o Lower Diversion in Lee Creek • Downstream of the modern and historic confluence o Kauer Ditch diverted water from Stroud Creek to Porcupine Creek • First created in 1932 by McConnell’s predecessor (more on that later) • Diverted full amount of water entitled to McConnell’s predecessor • Upstream of everything else relevant to this story
  • 5. 5 Transfer and Protest  McConnells failed to list Kauer Ditch or Lower Diversion in SRBA o McConnell’s cease use of Kauer Ditch and Lower Diversion in 2014 and 2020, respectively, because of IDWR enforcement  McConnells could not divert full amount of their water right using only the Upper Diversion o Filed transfer application to add Lower Diversion to water right  James Whittaker and his LLC ranch (McConnell’s upstream neighbors) protested the transfer o Whittaker alleges injury would occur because McConnells would have administrative access to his water right o Lower Diversion would allow senior-right McConnells to call for water from Whittaker’s right in times of shortage
  • 6. 6 Protestor James Whittaker  Whittaker has water right with 1916 priority (i.e., junior)  Whittaker uses West Springs Ditch to divert water from Stroud Creek for water right o Built in 1932 by Whittaker’s predecessor after a flume failed o McConnells’ predecessor allowed Whittaker’s predecessor to build West Springs Ditch o In exchange, McConnells’ predecessor allowed to build Kauer Ditch o West Springs Ditch caused Lee Creek confluence change  Historically, only used to divert water from the West Springs tributary and any excess water in Stroud Creek in high water years or during flood events. o Excess water returned to Lee Creek via Bohan Ditch o Has been diverting the entire flow of Stroud Creek since 2014
  • 7. 7 Bohan Ditch West Springs Ditch (Whittaker) West Springs Historic Confluence Modern Confluence Upper Diversion (McConnells) Lower Diversion (McConnells) North
  • 8. 8 Bohan Ditch West Springs Ditch (Whittaker) West Springs Historic Confluence Modern Confluence Upper Diversion (McConnells) Lower Diversion (McConnells) North
  • 9. 9 IDWR Review  IDWR determines McConnells’ transfer will not injure Whittaker o Hearing Officer: What’s the location of the confluence? • If historic confluence (upstream of Lower Diversion), then no injury. Whittaker was already subject to McConnells’ senior priority right vis-à-vis Upper Diversion • If modern confluence (downstream of Lower Diversion), then yes injury. Whittaker is giving McConnells new administrative access to his water right o Hearing Officer: Historic confluence is the proper location • West Springs Ditch was an unauthorized diversion • IDWR Director affirmed
  • 10. 10 District Court Review  District court sets aside Director’s order and remands matter o Modern confluence applies o Legality of the West Springs Ditch not at issue o Alteration of stream flows was not an element of Whittaker’s water right and, therefore, did not need to be claimed in SRBA o McConnells’ application could be approved if subject to condition subordinating Lower Diversion use to Whittaker
  • 11. 11 Idaho Supreme Court  Supreme Court reverses district court o West Springs Ditch is diversion—not alteration—and Whittaker failed to claim it in SRBA • Diversion: man-made construct that alters natural course of all water, making it flow in different channels (e.g., ditches). Time does not strip it of its diversionary character • Alteration: change “natural existing shape or direction of water flow within or below the mean high watermark” (e.g., cutting banks, removing vegetation, enlarging stream) o Diversion is unauthorized • SRBA decree did not list West Springs Ditch
  • 12. 12 Idaho Supreme Court  Historic confluence is the proper location for injury analysis o “The dissent argues that our decision will unnecessarily alter an irrigation system that has been in place since 1932. However, we cannot escape the fact that the West Springs Ditch is a man-made ditch constructed across the bed of Stroud Creek that was not claimed as a diversion in the SRBA. There is no laches defense available for failure to claim a diversion once the Final Unified Decree was issued in the SRBA.”
  • 13. 13 Takeaways  Clarity on alteration vs. diversion o Diversion is man-made changes to capture and redirect all water • Longevity is of no moment o Alterations are changes to natural shape or flow within OHWM  Identifying proper confluence (or all watershed characteristics?) requires setting aside unauthorized uses o Even if it means turning the clock way back
  • 14. South Valley Ground Water District v. Idaho Department of Water Resources (2024)
  • 15. 15 Background  In June 1991, former Director Keith Higginson issued an order designating the Big Wood River Ground Water Management Area (“Big Wood GWMA”), based in part on findings that “surface and ground waters of the Big Wood River drainage are interconnected” and the “[d]iversion of ground water from wells can deplete surface water flow in streams and rivers.”  Moratorium on new consumptive groundwater uses adopted in 1991.  Some delivery calls brought under IDWR’s promulgated Rules for Conjunctive Management of Surface and Ground Water Resources (“CM Rules”) beginning in 2010s.  Wood River Valley Aquifer Model Version 1.1 (“Aquifer Model 1.1”) first published in 2019 after being in development since 2013.
  • 16. 16 Introduction to South Valley Ground Water District v. IDWR  Anticipating an unprecedented drought in 2021—using the surface water supply index, and aquifer model 1.1, the Director commenced an administrative proceeding under Idaho Code section 42-237a.g., the Ground Water Act, to determine whether water was “available to fill” junior groundwater rights in the aquifer beneath the “Bellevue Triangle.”  First time Director had ever exercised his discretion under the Ground Water Act to initiate proceedings without a Petition of injury from an injured senior water appropriator.  After a six-day hearing, the Director issued a Final Order on June 28, 2021, that found water was unavailable to fill the junior ground water rights because pumping from the aquifer was affecting the use of senior surface water rights in violation of Idaho’s prior appropriation doctrine.  Rather than designating an area of common groundwater supply, the Final Order explained that the Director had analyzed a “potential area of curtailment” (i.e., the Bellevue Triangle).  The Final Order curtailed over 300 groundwater rights for the 2021 irrigation season commencing July 1, 2021. The curtailment lasted eight days, ending when the Director approved an amended mitigation plan on July 8, 2021. The Director had rejected a prior mitigation plan presented by the groundwater districts the day after the Final Order was issued.
  • 17. 17 Introduction to South Valley Ground Water District v. IDWR (cont.)  South Valley Ground Water District and Galena Ground Water District (“the Districts”) petitioned for judicial review.  The district court (1) affirmed that the Director had the authority to initiate the administrative proceeding under Idaho Code section 42-237a.g. of the Ground Water Act; (2) concluded that IDWR's CM Rules did not limit or supersede the Director's statutory authority in the proceeding;  But (3) determined that the Final Order did not comply with the prior appropriation doctrine because it did not (a) formally designate an “area of common ground water supply” and (b) “conjunctively administer to material injury” as defined in the CM Rules.
  • 18. 18 Bellevue Triangle—Area of Curtailment  Heavy area of use of water for irrigation and a source of water for Silver Creek and the Little Wood River.  South Valley Groundwater District primarily encompasses the Bellevue Triangle.  The Galena Groundwater District spans from Bellevue north to Galena Summit along the state Highway 75 corridor.  Aquifer Model 1.1 predicts that groundwater use in the Bellevue Triangle has a disproportionately large impact on surface water flows compared to other areas in the basin. It also constitutes 70% of the consumptive groundwater use in the Model's boundary.
  • 20. 20 Parties to the Appeal  IDWR- appealed district court’s determination that the Director's Final Order violated the prior appropriation doctrine  South Valley and Galena Groundwater Districts- cross- appealed, primarily challenging the district court's determination that the Director could initiate administrative proceedings on their own (without a claim of injury by senior water right holder).  Plus, other interested parties who submitted briefing : o Senior Surface Water Users- Big Wood and Little Wood Water Users Association and Big Wood Canal Company o Other Junior Groundwater Users- City of Hailey, Sun Valley Company o Interested Party from Municipal Provider Perspective- Veolia Water Idaho, Inc., the City of Coeur d'Alene o Interested Party from Groundwater Perspective- Idaho Ground Water Appropriators, Inc.
  • 21. 21 Issues on Appeal  Does the Director have authority to initiate administrative proceedings—without a claim of injury from a senior water right— under the Ground Water Act ?  Is it correct that the Conjunctive Management Rules do not apply to proceedings self-initiated by Director under the Ground Water Act ?  Was the Director's Final Order inconsistent with the prior appropriation doctrine?  Did the proceedings initiated by the Director under the Ground Water Act violate the Districts’ due process rights?
  • 22. 22 Does the Director have authority to initiate administrative proceedings— without a claim of injury from a senior water right— under the Ground Water Act?  Plain language of Idaho Code section 42-237a.g unambiguously grants the Director discretionary power to regulate the withdrawal of water from “any well” and the Ground Water Act states that it is the Director's duty “to control the appropriation and use of the ground water of this state as in this act provided. ...”  Director can initiate proceedings when either “(1) when groundwater withdrawal would cause material injury to a senior water right, or (2) when groundwater withdrawal would exceed the natural recharge of the groundwater source.”  Director has discretionary power to regulate the withdrawal of water from any well that affects senior rights, regardless of the location of the well within or outside an organized water district.  Supreme Court’s view that Section 42-237a.g. serves as a critical administrative backstop when water is scarce but individual water users cannot or have not filed delivery calls under the CM Rules.
  • 23. 23 Do the Conjunctive Management Rules apply to proceedings self- initiated by Director under the Ground Water Act?  The Conjunctive Management Rules were promulgated by IDWR in 1994 and “prescribe procedures for responding to a delivery call made by the holder of a senior-priority right against a junior.  Districts argued CM Rules should apply-understandably because the CM Rules set out extensive procedures and criteria for determining an area of common groundwater supply (CM Rule 31), for determining material injury and reasonableness of diversions (CM Rule 42), and for evaluating proposed mitigation plans.  The Ground Water Act provides no comparable rules, definitions, procedures, or criteria to follow. The CM Rules offer far more certainty.  Court held that CM Rules do not apply to proceedings self-initiated by the Director under Idaho Code section 42-237a.g and have specific language within them that state that the CM Rules do not limit the Director’s direct statutory authority.  CM Rules were promulgated only for situations where a water user initiates a delivery call, which is not the case in self-initiated proceedings by the Director.
  • 24. 24 Was the Director's Final Order inconsistent with the prior appropriation doctrine?  Groundwater Districts first argued that the Final Order did not establish “an area of common groundwater supply” as a prerequisite to conjunctive administration. This would provide notice to all appropriators within that area and give them due process, as weel as ensure that proper priority is accomplished within prior appropriation doctrine.  IDWR argued that it had the comprehensive water records for the area and that it had already established District 37, which encompasses the entire Wood River tributarily, so it was able to give all appropriators notice and effectively administer a curtailment by priority.  Court held that Section 42-237a.g. language gives Director more discretion than the CM Rules, and only states that Director “may” establish an area of common ground water supply. Permissive, not mandatory.  Court also held that Director used best available science (Aquifer Model 1.1) to determine impacts on Bellevue Triangle and ruled out other possible aquifers in Basin 37 as having anything but negligible impact on the Bellevue Triangle. Court went into great detail on this point and relied on Director’s findings that the flows on Silver Creek were directly effected by a shallow aquifer underneath.
  • 25. 25 Was the Director's Final Order inconsistent with the prior appropriation doctrine? (cont.)  Groundwater Districts also argued that the Final Order did not make a finding of a “material injury” to a senior water right holder as required by the prior case, Clear Springs Foods, Inc. v. Spackman, which did address a delivery call made under 42-237a.g.  IDWR argued that only the CM Rules require a finding of “material injury,” not Section 42- 237a.g. and distinguished the Clear Springs case because it was addressing a Petition brought by seniors in a proceeding under the CM Rules, not in a proceeding initiated by the Director.  Court agreed with IDWR that a requirement of a finding of material injury is limited to cases arising under the CM Rules because of Director’s separate powers under the Ground Water Act.  Emphasis that there is less process in favor of quickly restoring flow to senior water right holders.
  • 26. 26 Did the proceedings initiated by the Director under the Ground Water Act violate the Districts’ due process rights?  Court held that the procedure provided to the parties below was necessarily expedited, but within reasonable limits in light of the imminent loss to senior right holders.  Emphasis that the parties were given a 6-day hearing prior to curtailment, even thought part of an expedited process.  The Districts desired to argue that the mitigation plan proposed the day after the Final Order was not given due process when it was denied without explanation, however that issue was not properly preserved for appeal because it was not raised before the district court.
  • 27. 27 Legal Implications and Impact of Decision  At its core, the prior appropriation doctrine “contemplates a balance between the ‘bedrock principles’ of priority of right and beneficial use.”  This case illustrates the complexities of striking that balance, especially during periods of scarcity, and underscores the Director's discretion in protecting senior appropriators' rights during such times.  Highlights difficulties with practically applying conjunctive management—we know that groundwater affects surface water and that the whole water system is interconnected. Depletion of an aquifer will almost always deplete surface water flows.  However, the extent of these effects are difficult to define and quantify, and as a result, no groundwater management plan is perfect—based on modeling that is often an oversimplification of a complex hydrologic system.
  • 28. 28 Legal Implications and Impact of Decision  Idaho law establishes two paths for conjunctive administration: one when a water user makes a delivery call against one or more groundwater rights users under the CM Rules, and the other when the Director exercises his discretion under Section 42-237a.g. to limit or prohibit the withdrawal of water from “any well” as we saw in this case  Recognition that Section 42-237a.g. is an expedited process to quickly restore senior appropriator’s flow, and junior appropriators will almost certainly have less process in proceedings initiated by Director.  Importance of Aquifer Modeling.  This was the first time any parties had to go through the Section 42-237a.g. process.  Possible future promulgation of rules for Director’s discretionary process under Section 42- 237a.g., similar to CM Rules, but more expedited?
  • 29. 29 Additional Impacts  While IDWR pursued this appeal, the affected water users entered into a term sheet to implement a Big Wood River Ground Water Management Plan.  This Management Plan provided safe harbor to the ground water users in the Galena and South Valley districts in exchange for mitigation by those ground water districts that included irrigation season limits, required fallowing of a certain number of acres per year, and the purchase of additional storage water for the senior surface water users.  Agreements by juniors and seniors likely preferrable to uncertainly of a discretionary Section 42-237a.g. proceeding.
  • 30. 30 Additional Resources Link: Galena Groundwater District Letter to Members Explaining the new Big Wood River Ground Water Management Area Management Plan Link: Idaho Water Resource Board Press Release Regarding Term Sheet for New Big Wood River Ground Water Management Plan
  • 32. 32 For more information, contact:  Garrett M. Kitamura 208.562.4893 GKitamura@parsonsbehle.com  Payton G. Hampton 208.528.5254 PHampton@parsonsbehle.com

Editor's Notes

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