HISTORICAL OVERVIEW OF CONJUNCTIVE ADMINISTRATION OF ESPA WATER SOURCES PREPARED BY CLIVE J. STRONG FOR GOVERNOR’S WATER SUMMIT APRIL 17, 2007

DISCLAIMER When the underlying issues are difficult or contentious, there is often great debate about what the law means or how it should be applied. When the underlying issues are difficult or contentious, there is often great debate about what the law means or how it should be applied. This presentation provides an historical overview of the conjunctive management conflict and the competing perspectives of the parties to the conflict. It DOES NOT reach any conclusion regarding the correctness of any position. This presentation provides an historical overview of the conjunctive management conflict and the competing perspectives of the parties to the conflict. It DOES NOT reach any conclusion regarding the correctness of any position. Absent an agreement among the parties, only the Idaho Legislature and/or the Idaho Supreme Court have the power to provide a definitive answer to the conjunctive management conflict. Absent an agreement among the parties, only the Idaho Legislature and/or the Idaho Supreme Court have the power to provide a definitive answer to the conjunctive management conflict.

The Law We all agree that the prior appropriation doctrine is the controlling law in Idaho. We all agree that the prior appropriation doctrine is the controlling law in Idaho. We all agree that as between appropriators, the first in time is first in right. We all agree that as between appropriators, the first in time is first in right. We all agree that an appropriator is limited to that quantity of water that can be put to a beneficial use. We all agree that an appropriator is limited to that quantity of water that can be put to a beneficial use. The principles of waste and futile call are also well established. The principles of waste and futile call are also well established.

So What Is The Problem? While there is general agreement on the elements of the prior appropriation doctrine, not all parties agree on how these elements should be applied or how they relate to one another. While there is general agreement on the elements of the prior appropriation doctrine, not all parties agree on how these elements should be applied or how they relate to one another. The objectives behind the prior appropriation doctrine are to encourage development and to provide for security of rights. The objectives behind the prior appropriation doctrine are to encourage development and to provide for security of rights.

Statehood to 1984 Prior to the Swan Falls Agreement, the ESPA and the Snake River were treated as separate sources. Prior to the Swan Falls Agreement, the ESPA and the Snake River were treated as separate sources. The 1976 and 1982 Idaho State Water Plans while recognizing aquaculture water rights, stated: “Future management and development of the Snake Plain aquifer may reduce the present flow of springs tributary to the Snake River. If that situation occurs, adequate water for aquaculture will be protected, however, aquaculture interests may need to construct different diversion facilities than presently exist.” Policy 33, 1976 Idaho State Water Plan at 118, and Policy 32, 1982 Idaho State Water Plan at 44. The 1976 and 1982 Idaho State Water Plans while recognizing aquaculture water rights, stated: “Future management and development of the Snake Plain aquifer may reduce the present flow of springs tributary to the Snake River. If that situation occurs, adequate water for aquaculture will be protected, however, aquaculture interests may need to construct different diversion facilities than presently exist.” Policy 33, 1976 Idaho State Water Plan at 118, and Policy 32, 1982 Idaho State Water Plan at 44.

Conjunctive Management Policies Arising from Swan Falls Agreement “It is the policy of Idaho that where evidence of hydrologic connection exists between ground and surface water, they be managed as a single resource.” Policy 1F, 1986 Idaho State Water Plan at 22. “It is the policy of Idaho that where evidence of hydrologic connection exists between ground and surface water, they be managed as a single resource.” Policy 1F, 1986 Idaho State Water Plan at 22. “It is the policy of Idaho that the ground water and surface water of the basin be managed to meet or exceed a minimum average daily flow of zero measured at the Milner Gauging Station, 3,900 CFS from April 1 to October 31 and 5,600 CFS from November 1 to March 31 Measured at the Murphy Gauging Station, and 4,750 CFS measured at [the] Weiser Gauging Station.” Policy 5A, 1986 Idaho State Water Plan at 35. “It is the policy of Idaho that the ground water and surface water of the basin be managed to meet or exceed a minimum average daily flow of zero measured at the Milner Gauging Station, 3,900 CFS from April 1 to October 31 and 5,600 CFS from November 1 to March 31 Measured at the Murphy Gauging Station, and 4,750 CFS measured at [the] Weiser Gauging Station.” Policy 5A, 1986 Idaho State Water Plan at 35.

Conjunctive Management Policies Arising from Swan Falls Agreement “It is the policy of Idaho that water held in trust by the State pursuant to Idaho Code B be reallocated to new uses in accordance with the criteria established by Idaho Code A and C.” Policy 5B, 1986 Idaho State Water Plan at 36. “It is the policy of Idaho that water held in trust by the State pursuant to Idaho Code B be reallocated to new uses in accordance with the criteria established by Idaho Code A and C.” Policy 5B, 1986 Idaho State Water Plan at 36. “The minimum flows established for the Murphy gauging station should provide an adequate water supply for aquaculture. It must be recognized that while existing water rights are protected, it may be necessary to construct different diversion facilities than presently exist.” Policy 5G, 1986 Idaho State Water Plan at 38. “The minimum flows established for the Murphy gauging station should provide an adequate water supply for aquaculture. It must be recognized that while existing water rights are protected, it may be necessary to construct different diversion facilities than presently exist.” Policy 5G, 1986 Idaho State Water Plan at 38.

Conjunctive Management Policies Arising from Swan Falls Agreement “It is the policy of Idaho that reservoir storage be acquired in the name of the Idaho Water Resource Board to provide management flexibility in assuring the minimum flows designated for the Snake River.” Policy 5J, 1986 Idaho State Water Plan at 40. “It is the policy of Idaho that reservoir storage be acquired in the name of the Idaho Water Resource Board to provide management flexibility in assuring the minimum flows designated for the Snake River.” Policy 5J, 1986 Idaho State Water Plan at 40. “The impacts of ground-water use within the basin on the timing of aquifer discharge to the rivers is such that at some time stored surface water may be necessary to maintain the designated minimum flows.” Id. at 40 “The impacts of ground-water use within the basin on the timing of aquifer discharge to the rivers is such that at some time stored surface water may be necessary to maintain the designated minimum flows.” Id. at 40

Conjunctive Management Policies 1992 to 2000 In 1992, the Director ordered a moratorium on the issuance of permits to divert and use water from the Snake River Basin. In 1992, the Director ordered a moratorium on the issuance of permits to divert and use water from the Snake River Basin. In 1993, the Twin Falls Canal Company and IDWR entered into a settlement agreement modifying the 1992 moratorium to exclude trust water and requiring studies “regarding the interrelationship between the Snake Plain aquifer and the Snake River.” In 1993, the Twin Falls Canal Company and IDWR entered into a settlement agreement modifying the 1992 moratorium to exclude trust water and requiring studies “regarding the interrelationship between the Snake Plain aquifer and the Snake River.” In 1993, as a result of concerns expressed by aquaculture, the Idaho Water Resource Board recommended examination of the need for additional protection of spring flows Comprehensive State Water Plan Snake River: Milner Dam to King Hill at 80. In 1993, as a result of concerns expressed by aquaculture, the Idaho Water Resource Board recommended examination of the need for additional protection of spring flows Comprehensive State Water Plan Snake River: Milner Dam to King Hill at 80.

Conjunctive Management Policies 1992 to 2000 In 1994, A&B Irrigation District filed a delivery call petition for curtailment of junior ground water rights diverting from the ESPA. In 1994, A&B Irrigation District filed a delivery call petition for curtailment of junior ground water rights diverting from the ESPA. In 1994, the Director of IDWR approved a stipulation resolving delivery call petition that among other things required IDWR to develop a plan for management of the ESPA and to undertake active enforcement of water rights. In 1994, the Director of IDWR approved a stipulation resolving delivery call petition that among other things required IDWR to develop a plan for management of the ESPA and to undertake active enforcement of water rights. In 1994, IDWR adopted the conjunctive management rules for the administration of surface and ground water rights. In 1994, IDWR adopted the conjunctive management rules for the administration of surface and ground water rights.

Conjunctive Management Policies 1992 to 2000 In 1996, Idaho Water Resource Board replaced Policy 5G with Policy 5H which provides, “It is the policy of Idaho to seek to maintain spring flows in the American Falls and Thousand Springs reaches of the Snake River which will sustain beneficial uses of surface and ground water supplies in accordance with state law.” 1996 Idaho State Water Plan at 19. In 1996, Idaho Water Resource Board replaced Policy 5G with Policy 5H which provides, “It is the policy of Idaho to seek to maintain spring flows in the American Falls and Thousand Springs reaches of the Snake River which will sustain beneficial uses of surface and ground water supplies in accordance with state law.” 1996 Idaho State Water Plan at 19.

SRBA In 2001, the SRBA district court issued its order in Basin Wide Issue 5 recognizing that general provisions addressing conjunctive management are necessary. In 2001, the SRBA district court issued its order in Basin Wide Issue 5 recognizing that general provisions addressing conjunctive management are necessary.

Conjunctive Management 2000 to 2005 In 2001, Senior Surface Water Right holders filed a petition for the creation of ground water management areas for purpose of administration. In 2001, Senior Surface Water Right holders filed a petition for the creation of ground water management areas for purpose of administration. Interim stipulated agreements were executed that provided short-term mitigation to the senior surface water users for 2002 and 2003 and provided for on-going negotiations to fashion a long-term solution. Interim stipulated agreements were executed that provided short-term mitigation to the senior surface water users for 2002 and 2003 and provided for on-going negotiations to fashion a long-term solution.

Conjunctive Management 2000 to 2005 In 2004, the Idaho Legislature brokered an interim agreement after the parties were unable to reach agreement on the continuation of the prior interim stipulated agreements. In 2004, the Idaho Legislature brokered an interim agreement after the parties were unable to reach agreement on the continuation of the prior interim stipulated agreements Natural Resources Interim Committee developed the straw man proposal Natural Resources Interim Committee developed the straw man proposal. In 2005, negotiations broke down and a number of delivery call petitions were filed with the Director. In 2005, negotiations broke down and a number of delivery call petitions were filed with the Director.

AFRD #2 v. IDWR The Director issued a proposed final order in response to the Surface Water Coalition delivery call. The Director issued a proposed final order in response to the Surface Water Coalition delivery call. The Surface Water Coalition filed a complaint in state district court alleging the conjunctive management rules violated strict priority administration and were incapable of a constitutional application. The Surface Water Coalition filed a complaint in state district court alleging the conjunctive management rules violated strict priority administration and were incapable of a constitutional application. The Honorable Judge Barry Wood issued an opinion and order on June 2, 2006 finding the conjunctive management rules unconstitutional. While Judge Wood rejected plaintiffs’ position that water rights in Idaho should be administered strictly on a priority in time basis, he held that the rules were unconstitutional because of the omission of “procedural components” of the prior appropriation doctrine. The Honorable Judge Barry Wood issued an opinion and order on June 2, 2006 finding the conjunctive management rules unconstitutional. While Judge Wood rejected plaintiffs’ position that water rights in Idaho should be administered strictly on a priority in time basis, he held that the rules were unconstitutional because of the omission of “procedural components” of the prior appropriation doctrine.

AFRD #2 v. IDWR On March 5, 2007, the Idaho Supreme Court issued its decision in AFRD # 2 v. IDWR. On March 5, 2007, the Idaho Supreme Court issued its decision in AFRD # 2 v. IDWR. The court held that the conjunctive management rules are facially constitutional. The court held that the conjunctive management rules are facially constitutional. “While perhaps the Rules can be read in different ways, they can be read consistently with constitutional and statutory principles.” The decision did not address whether IDWR’s proposed application of the rules is constitutional. This issue must be addressed through an appeal of the orders once they become final. The decision did not address whether IDWR’s proposed application of the rules is constitutional. This issue must be addressed through an appeal of the orders once they become final.

What do we know? “While the prior appropriation doctrine certainly gives pre-eminent rights to those who put water to beneficial use first in time, this is not an absolute rule without exception. As previously discussed, the Idaho Constitution and statutes do not permit waste and require water to be put to beneficial use or be lost. Somewhere between the absolute right to use a decreed water right and an obligation not to waste it and to protect the public’s interest in this valuable commodity, lies an area for the exercise of discretion by the Director. This is certainly not unfettered discretion, nor is it discretion to be exercised without any oversight. That oversight is provided by the courts, and upon a properly developed record, this Court can determine whether that exercise of discretion is being properly carried out.”

Conclusion We are at another fork in the conjunctive management road. We are at another fork in the conjunctive management road. One fork leads to development of a negotiated resolution tailored to accommodate all interests to the maximum extent possible. One fork leads to development of a negotiated resolution tailored to accommodate all interests to the maximum extent possible. The other fork appropriation leads to continued contentious litigation to further define the relationship between the principles of the prior doctrine. The other fork appropriation leads to continued contentious litigation to further define the relationship between the principles of the prior doctrine. In the end, both forks lead to the same place – development of a comprehensive aquifer management plan. In the end, both forks lead to the same place – development of a comprehensive aquifer management plan. The question is whether we want to define our own destiny or leave it to the courts to do so. The question is whether we want to define our own destiny or leave it to the courts to do so.