Pumpers who fail to follow order will face major curtailment

By DAVE WILKINS

Capital Press

Ground water pumpers will have to provide additional water to two Magic Valley fish farms or face curtailment, Idaho's top water official has determined.

Pumpers with junior water rights have until March 1, 2011, to get an approved mitigation plan in place for Blue Lakes Trout Co. and Snake River Farms or face possible shutdown, Gary Spackman, interim director of the Idaho Department of Water Resources, ordered recently.

While curtailment could be phased in over five years, it would have to boost spring flows beyond what's provided in existing mitigation plans, Spackman ordered. As an alternative to curtailment, pumpers could provide direct delivery of replacement water to the fish farms.

Spackman's July 19 decision came in response to a district court order last year to recalculate the historical seasonal fluctuations in spring flows as they relate to the fish farms.

Previously, the department had determined that there was no injury to the two water rights in question. But the district court found that the department had failed to apply the appropriate burden of proof and evidentiary standards.

Spackman's order is the latest in a series of actions taken by the department and the courts since 2005 when the two trout farms filed a water delivery call against junior ground water rights holders.

Ground water rights dating as far back as Sept. 15, 1955, could be shut down under that portion of Spackman's order dealing with the Snake River Farms' delivery call. Snake River Farms is a division of Clear Springs Foods, one of the largest commercial trout producers in the world.

Ground water rights with priority dates junior to Nov. 17, 1971, could be curtailed under the Blue Lakes Trout water call, Spackman ordered.

Water users are still negotiating a possible settlement and hope to avoid curtailment, which they consider a worse-case scenario.

"The two sides have been talking and we're hoping we can work something out," Lynn Tominaga, executive director of the Idaho Ground Water Users Association, said.

Widespread curtailment of junior ground water rights would be devastating, resulting in tens of millions in lost crop production, Tominaga said.

Curtailment resulting from the two delivery calls could affect some 100,000 irrigated acres north of the Snake River in south-central Idaho, and about 29,000 acres south of the river in Cassia County, he said.

"You're probably looking at 50 percent of the ground on the north side of the river in the Magic Valley being taken out of production," he said.

Ground water users argue that Spackman's latest order was based on the extrapolation of old data, Tominaga said.

Junior ground water users don't dispute that their pumping has contributed to some reduced spring flows. What's in dispute is how much of the decline they're responsible for and how much is attributable to other factors, such as increased drought and changes in surface irrigation practices, including conversion from furrow to sprinkler irrigation.

The two sides are also in disagreement about how much material injury has resulted from the reduced spring flows.

Either side could appeal the director's latest order and the issue is likely to ultimately be decided by the state Supreme Court.