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Fight over flood control, Idaho water rights looms

Sean Ellis
A bill that would prevent water released from Idaho reservoirs for flood control efforts from counting against storage rights was put on hold this year. But it could be brought back next year if parties on both sides of the issue can't reach an agreement.

BOISE — Treasure Valley irrigators are fighting to ensure that water released from reservoirs to prevent flooding is not counted against their storage rights.

A 61-year-old agreement with the Bureau of Reclamation backs their assertion that flood control releases shouldn’t diminish storage water rights, and the rights to actually use the water. But an attorney general’s opinion says they can.

The distinction is important. If the release is counted against the right, growers might not have water available when its needed for their crops. Growers with senior rights would be most impacted because their storage rights are satisfied first as reservoirs fill in the spring.

A bill that would prevent flood control releases from counting against reservoir storage rights was put on hold during the recent legislative session. It will be brought back if the opposing sides can’t reach an agreement.

During abundant snowpack years, water is released from many Idaho reservoirs to prevent flooding downstream. The reservoirs are filled again through natural flows and, on the Boise River system, that released water is not counted against storage rights.

Irrigators who get their water from the Boise system have a 1953 agreement with the bureau with that provision0.

But that practice was challenged during Idaho’s Snake River Basin Adjudication, a legal process that sorted out more than 150,000 water rights claims.

The SRBA court said the state should decide and handed the issue to the Idaho Department of Water Resources, said water attorney Dan Steenson, who is representing Boise valley water users on this issue.

That SRBA court decision was appealed to the Idaho Supreme Court. Oral arguments took place in January and both parties are waiting for a decision, Steenson said.

He said the IDWR and attorney general’s office have taken the position that when water is released from reservoirs for flood control, it is counted as if it had been stored and used.

“That’s the opposite of what all of us in the irrigation community have believed in and followed throughout many, many decades,” said Roger Batt, who is representing Boise area irrigators.

Steenson said the two main components of storage rights are the ability to store water and use it and the state’s position treats the water as if irrigators actually got to use it.

Because flood control releases happen outside of irrigation season, storage rights holders never got to use the water.

“They are fundamentally undermining these storage rights, in my opinion,” Steenson said.

According to an opinion by Idaho’s deputy attorney general, Clive Strong, the proposed amendments to Idaho statute contained in the bill “would alter established administrative systems and create unintended consequences, such as adversely affecting some irrigators’ stored water supplies, wasting water and unnecessarily curtailing diversions in years of abundant runoff.

“The proposed amendments also raise concerns of surrendering the state’s legal control over the use and development of its water resources in these basins to federal authorities.”

Sen. Bert Brackett, R-Rogerson, who introduced the bill, said that based on the state’s position, senior storage rights holders are the ones impacted the most because the reservoirs are back-filled after flood control releases according to priority dates.

“The seniors shouldn’t have to bear the burden of flood control for the entire system,” he said.



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