Judge rules against Idaho irrigators on flood control accounting

Capital Press File Water is stored in the Lucky Peak Reservoir. A judge has sided with the Idaho Department of Water Resources against Treasure Valley irrigators over flood control releases from Boise River reservoirs.

BOISE — Treasure Valley irrigators are assessing their options after a judge ruled that water released from Boise River reservoirs for flood control can be counted against their storage water rights.

Judge Eric Wildman, presiding judge of the Snake River Basin Adjudication Court, overturned a special court master’s 2015 ruling that the state can’t count flood control releases against the reservoir storage rights of water right holders.

Roger Batt, executive director of the Treasure Valley Water Users Association, which represents 300,000 irrigated acres, said irrigators respectfully disagree with Wildman.

Because flood control releases occur in the winter, when the water isn’t available to farmers and other irrigators, the water right holders never get a chance to put it to beneficial use, he said.

“That’s water we can’t use because it’s released during a period of time when it can’t be captured and be used on farms or somebody’s lawn,” Batt said. “We don’t understand how water can be counted against us if we were never able to use it.”

The issue has pitted the southwestern Idaho irrigation community against the Idaho Department of Water Resources, which claims it has counted flood control releases from Boise River reservoirs against storage rights since 1986.

Irrigators say it’s a new practice and have challenged it in court.

IDWR Deputy Director Mathew Weaver said the ruling vindicates the department, which has been harshly criticized by some legislators and people in the irrigation community.

“The way we have been doing accounting in the Boise system ... was upheld by the judge,” he said. “The department has done only what it was supposed to do here.”

Wildman did rule in favor of irrigators on the issue of whether a water right exists for water that is stored in the reservoirs following flood control releases.

Wildman ruled that the record clearly shows flood control releases occurred many times before 1971 “and that in all of those years, water identified by the (IDWR) director as unaccounted for storage was diverted, stored and ultimately used by the irrigators for irrigation. ... Under the constitutional method, the diversion and use of such water is all that is necessary to complete the appropriation and obtain a vested water right.”

But Wildman’s flood control ruling was a blow to Treasure Valley irrigators, who have said the practice could have dire consequences for agriculture in the region.

Water is released for flood control from Boise River reservoirs during seven out of every 10 years. The amount released varies considerably from year to year. Nearly 300,000 acre-feet of water was released from the reservoirs this year to prevent flooding.

Under the accounting practice allowed by Wildman’s ruling, Batt said, “If (300,000) acre-feet of water is released for flood control, that means we have (300,000) acre-feet less water to start the irrigation season with. ... That’s a lot of water.”

Batt said irrigators will likely decide in the next few weeks whether to appeal Wildman’s ruling to the Idaho Supreme Court or seek a legislative solution.

Weaver said a settlement agreement between the parties is a valid third option.

“There might be an opportunity to push ‘pause’ and try to finalize (a) settlement agreement,” he said.

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