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Water court floated to handle growing hearing load

Carol Ryan Dumas
Some in Idaho's water community are proposing establishing a new water court to handle the growing number of administrative hearings at the Department of Water Resources due to contentious water delivery calls.

SUN VALLEY, Idaho — Some in Idaho’s water circles are proposing the establishment of a new water court to expedite the hearing and appeal process in a growing number of contested water delivery calls.

Two Idaho water law attorneys presented the pros and cons of a special district court during the Idaho Water Users Association’s summer water law seminar in Sun Valley on Monday.

The idea took root last spring. A proposal allowing a petition to be heard either by the director of Idaho Department of Water Resources or the Snake River Basin Adjudication court was taken to the Legislature in January.

It didn’t get far, but the Legislature did appoint a working group to further discuss the issue.

“What I was seeing as a marriage ceremony, others were seeing as a knife fight,” said Boise water attorney Tom Arkoosh.

Proponents backed off but will continue to work on the idea, he said.

The idea is to capture the expertise of the SRBA court to move water hearings along in a timely fashion, he said.

Water delivery calls over the past decade have taken an average of three years each to resolve, bouncing back and forth through IDWR’s administrative process. A big advantage of a water court would be a more timely process, desired by those on both sides of a water call, he said.

In addition, courts are made for conflict, and all water calls have conflict. It could also reduce the load at IDWR, which could be suffering from lack of resources, and provide an independent hearing officer outside the department, he said.

Some downside could be seen in the transfer of IDWR authority to the court system and the loss of IDWR expertise, he said.

Other objections raised don’t hold water with Arkoosh. One is the added expense of a water court, but litigation is expensive and the costs would be spread statewide, he countered.

Another is that it would lead to hearing forum shopping, which is exactly the point in allowing a choice of forums, he said.

It’s also been argued that it could lead to unintended consequences to Idaho’s water code, which some claim has been carefully crafted over decades. But that assertion is wrong; the code changes and evolves, he argued.

“It’s in everybody’s interest to hold hearings as quickly as possible,” but that’s not happening today, he said.

The options are staying the course, establishing a water court or establishing an independent hearing officer corps, such as what is used by federal agencies, he said.

There are some common interests in a water court among Idaho’s water community, such as timely hearings and retaining the SRBA court and its expertise, said Pocatello water attorney T.J. Budge.

When water calls end up in court, attorneys spend a lot of time trying to explain water-rights law and educate judges. SRBA court has institutional knowledge and understanding of water rights and hydrology, and decisions would be more consistent, he said.

Additional costs for the SRBA court in Twin Falls could be overcome pretty easily in this electronic age, and costs would be incurred anyway with some judge somewhere hearing a case, he said.

Another advantage to a water court is the concern of internal lobbying in the department, with department personnel supplying evidence and the director acting as hearing officer, he said.

That said, improving IDWR’s hearing process is a more difficult issue, and he has a hard time imagining the court would be timelier. IDWR mitigation hearings take six to eight weeks, compared with six months to a year in court, he said.

“Agency decision-making is more streamlined, and there’s also concern of loss of agency rules,” he said.

In addition, it’s important for IDWR to have the first say in water rights cases due to its expertise and understanding of how the water being debated affects other water under its conjunctive management.

“The courts don’t have the same breadth of knowledge and understanding,” he said.

Another concern is separation of powers, and there is no precedent for shifting agency authority to judiciary authority, he said.



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