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Water rights law needs update

Published on May 3, 2013 3:01AM

Last changed on May 3, 2013 9:09AM

Rik Dalvit/For the Capital Press

Rik Dalvit/For the Capital Press

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In the heyday of the Hollywood Western, a favorite plot line pitted a powerful cattle baron against honest farmers in a fight for their water rights. The movie always ended with a gunfight where all is made right by the reluctant hero.

Disputes over water are more than the stuff of movie fiction. The complex system of state-administered water rights all but ensures that parties will find themselves at odds.

While history is filled with stories of water disputes settled by armed confrontation, today battles over Western water rights play out in far less dramatic fashion in bureaucratic hearing rooms and before the courts.

And as hydrologists increase their understanding of aquifers and watersheds, water users far from the site of the dispute can find themselves embroiled in the case. Farmers, ranchers, regulators and legislators need to understand the potential consequences to the economy.

A water call by Rangen Inc., a trout farm in Hagerman, Idaho, is an example. If it prevails, 565,000 acres of irrigated land on the Eastern Snake River Plain could dry up, and farmers 200 miles from Hagerman could see their livelihoods disappear.

It's a complicated case.

Rangen has five rights from the Thousand Springs of the Snake River Aquifer. Its 1962 right, the subject of the dispute, calls for a flow of 48.54 cubic feet per second. Although it has experienced historic flows as high as 58.7 cubic feet per second, in recent years it has been as low as 15.

Under old models of the aquifer employed by the state, previous calls on ground pumpers were denied because they would not significantly increase Rangen's spring flow. But the state says a new version, the Eastern Snake Plain Aquifer groundwater model, known by the acronym ESPAM 2.1, more accurately charts the impact of pumping in the far reaches of the aquifer on specific springs.

As a result, a curtailment affecting hundreds of junior ground water right holders up and down the length of the Eastern Snake River Plain could boost Rangen's flow to 18 cubic feet per second. That's significant enough to give Rangen's current call a legitimate chance to succeed.

Junior water rights holders question the accuracy of the state's model. They also note that by the state's reckoning only a small part of the total curtailment of their right would reach Rangen, and that it could take years for the spring flow to be impacted. They also question whether Idaho's water Appropriation Doctrine -- first in time, first in right -- is meant to cut all of the water to so many users for a relatively small benefit to one senior rights holder.

The case will ultimately be settled by the courts. But whoever prevails the case will set precedent in Idaho and be given significant notice throughout the West.

Technology is advancing our understanding of surface and underground water systems, information not available when the governing laws were written. Farmers and ranchers can't assume the rights they enjoyed will go unchallenged by senior rights holders invisibly connected to their wells.

The laws and the regulations governing water and water rights need to catch up with the science. As demand grows, so will the number of disputes between junior and senior users. And so will the impact on the economic vitality of the West.


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