There’s a legal fight going on over control of water in the Treasure Valley. The rhetoric in the fight has been intense. One side even has an ad campaign.
Imagine a movie-theater preview voice comes up over cheery music reminiscent of a babbling brook.
“Irrigation water, it makes the Treasure Valley a lush green miracle instead of a desert landscape. Imagine a typical 105 degree summer day. Now imagine your irrigation water is completely shut off to your lawn, garden, farm or favorite park.” The music stops.
“This disaster can happen because of unwarranted attacks on our Treasure Valley water rights by the state of Idaho.”
Slightly ominous tinkling piano begins and the voice sounds a little angry.
“The state claims that water released for flood control counts as water you have used, even though it’s not available for you to use.”
Skip ahead a bit to the claimed results.
“Crops and lawns would die. Golf courses, parks and athletic fields would wither away.”
This issue is very complex, but the outcome could potentially affect most everyone in the Treasure Valley. So we’ll do our best to make it comprehensible. First, when the commercial says “you,” it’s probably not you unless you’re like Clinton Pline.
“I’m kind of a semi-retired farmer,” Pline says while driving backwards on a dirt road near Nampa. “I still stay active in agriculture doing a little bit of work here on my home place.”
The road is just wide enough for the tires of the shiny pickup Pline calls his mobile office.
“I back up all the time,” Pline says.
“Such a narrow strip right between water and ...” I say, trailing off.
“Water and a drop off,” Pline finishes with a laugh. “Well, you learn to use your mirrors.”
On one side is the Ridenbaugh Canal that takes water from the Boise River to Meridian and Nampa. On the other side, several feet below the road, is a field of Pline’s sugar beets.
Pline and others with old water rights are called seniors. Idaho water law is often summed up with the phrase “first in time is first in right,” meaning older claims on water always trump newer ones. The seniors in this case, a lot of whom are farmers, get first dibs on any water released from Lucky Peak.
Those with newer claims - juniors - have to wait until the seniors get all they’re entitled to. In a normal year or a dry year the first water released goes down the canals to senior irrigators like Pline. But in a wet year like this one, the first water released gets sent down the river where Pline can’t get to it.
“We believe it’s wrong that the state can now say, ‘We’re shipping this water down river in order to make more room for more storage water, but yet, we’re going to count that as you using that water even though we haven’t used it,'” Pline says. “It just doesn’t make any sense.”
When Pline says “we” he means the Nampa-Meridian Irrigation District and the Treasure Valley Water Users - a lobbying group created to press this side of the argument. That’s the group that made the commercial. He’s on the board of both.
Lucky Peak Dam was built in the 1950s. It is used to store water for irrigation but its primary purpose is to prevent the periodic floods that used to plague parts of Boise. Without it, the KBSX studio may have been underwater this spring. As it was, a part of the Greenbelt bike path near our building was flooded because this year’s big snow pack meant the federal agencies that manage Lucky Peak had to let a lot of water out to avoid potentially larger floods that could have damaged property.
People call this the ‘refill’ issue because the reservoir gets full, water is let out to avoid flooding and then it refills with melting snow. The question is - and this is the key - who gets first dibs on the water after the reservoir refills?
Matt Weaver, deputy director of the Idaho Department of Water Resources (IDWR), says sending the water down the river satisfies the senior users’ claim just as if they’d sent it down the canal.
“Once they’ve received the satisfaction under their base right, they then go to the back of the line,” Weaver says.
And the junior users go to the front. The seniors will still get water they can actually use if there’s enough, after the juniors have had theirs.
Weaver takes issue with claims like the one in the commercial above that flood control water is unavailable to the irrigators.
"When water is released for flood control the irrigators are welcome and legally able to divert it, sometimes they do, but usually they choose not to," Weaver says.
To the farmers that's a little like splitting hairs. They could take their share during the flood control actions but that's usually at a time when they can't use the water and few have the ability to store it for later use.
In a way you could see this as a struggle between rural and urban interests, between people like Pline and people like … well … me. I live in Boise, I get my water from the Suez company like most Boise residents. And Suez is the biggest junior in this fight. It gets 30 percent of its water from the river and is counting on river water to supply future needs as Boise grows. In dry years, Suez’s Mark Snider says the company has to scramble to get more water because the senior users get everything in Lucky Peak.
“If necessary, and we have on occasion, we will go to the open market and acquire more water,” Snider says. “That’s the most expensive water you can get.”
That cost usually gets passed on to the customers. But Suez doesn’t have to worry about that in wet years, in part because there’s more water, but also because it goes to the front of the line. If the farmers get their way …
“Our concern is that we would not be able to meet the demand of our customers if certain senior water rights holders were to get that water first,” Snider says.
But on the other side, Darren Coon with the Nampa-Meridian Irrigation District says if the state is allowed to allocate water the way it wants, farmers won’t get enough and crops will wither in the fields ironically in the years with the most water.
“The state of Idaho, its economic engine is still agriculture. If you go out of your way to create a circumstance that injures agriculture in this part of the state then you’re going to devastate the economy.”
Idaho Attorney General Lawrence Wasden, who is arguing the state’s position in court, considers that hyperbolic. He says there’s plenty of water for juniors and seniors in these wet years.
Wasden says water users don’t have the same claims to Lucky Peak water that they do to water in the other reservoirs on the Boise River. Since Lucky Peak is about flood control first, using it for irrigation is almost like having bonus water, from the state’s perspective. So to Wasden, the other side is making a big deal out of a small thing.
“If you look back over the last 30 years, everyone has gotten their water,” Wasden says. “So is this a tempest in a tea pot? Maybe. But it really also looks to the future. We need to have some certainty about what the rules are that apply.”
Wasden uses 30 years because that’s how long the state says it has been accounting for refill water in this way, though its justifications for doing so date back much further.
Wasden says in order for farmers to not get all their water in a wet year, it would take a big miscalculation by the federal agencies that manage the dam. He acknowledges that could happen but says it’s very unlikely. Still, the possibility of a mistake big enough to cause a shortage is a major concern for senior and junior users.
Quick pause. We mentioned this is complicated. Let’s review. In years with a lot of snow and rain, Lucky Peak water gets sent down the river to avoid flooding. The state says to people at the front of the line ‘that was your water, now go to the back of the line.’ Those people say ‘that’s not fair.’ And the state responds …
Well, the way the Attorney General interprets Idaho law, the state must count water released into the river the same as water released into the canals. The farmers, obviously, have a different interpretation.
Earlier this year the Treasure Valley Water Users recruited an unusual bipartisan group of lawmakers to try to change Idaho law in order to strengthen its position. The effort did not go far.
Wasden’s other argument for why the state has to account for the Lucky Peak water this way dates back to the mid-1960s. That’s when Wasden says all the canal companies and irrigation districts signed contracts with the federal government about using Lucky Peak water for irrigation. Here’s his message to them.
“The contract you hold with the federal government says the federal government has the power to release your water for flood control,” Wasden says.
Wasden is fond of using a metaphor that goes something like this. In building Lucky Peak, the federal government gave senior water users a free pickup truck. But those users had to sign a contract saying the government could come and take the wheels off whenever it wants. But he says they still have two perfectly good trucks nobody can touch. Those are the other two dams on the Boise River where this refill issue doesn’t come into play.
The irrigators also bring these contracts up a lot, but, you guessed it, they interpret them differently.
A lot of this fight is about things that happened many decades ago. So why are they arguing about it now? Just a few years ago there was another court case about how the state accounts for refill water in the Snake River. So it was 2013 or thereabouts when Treasure Valley canal companies first heard the state’s position that flood releases down the river satisfy farmer’s claims to irrigation water. Darren Coon with the Nampa Meridian Irrigation District says the idea seemed really unorthodox.
“I’ve worked here for 40 years and it just left me scratching my head,” Coon says. “And it took literally weeks for me to figure out what it is the state was thinking or what their theory is.”
But remember, the state says it has been accounting for the Lucky Peak water this way since 1986. The irrigators say if the state was doing it this way it never told them. Matt Weaver with IDWR says the canal companies and irrigation districts just didn’t understand what was happening because there’s plenty of water in Lucky Peak for everyone in years like this.
“Because they hadn’t had to really understand this process because they weren’t being injured by it, I’d say it wasn’t until these questions were getting posed in the [water adjudication court] that people really had to understand, ‘department, how are you accounting for this,’” Weaver says.
Farmer Clinton Pline acknowledges that the system hasn’t caused senior users problems yet. And Pline says despite some of the rhetoric from his side, it’s not really about running out of water this year or next year.
“What’s really the concern is, is down the road 20, 30, 40, 50 years from now,” Pline says.
Estimates for population growth in the valley have farmers worried. Weaver says he’s sympathetic to those concerns.
“Future development might take place of significant size that it impacts their ability to fill the reservoir system,” Weaver says. “And that’s why the department is supportive of some type of settlement agreement that would provide [the seniors] with water rights that would protect them from any future uses that come on the system.”
That is, Weaver says, as long as a settlement does not injure current junior users. The refill case on the Snake River ended with the kind of settlement Weaver wants.
Up til now, Pline and Coon and others on their side have not been willing to entertain a compromise.
But earlier this month, a judge issued a ruling on part of the case. It wasn’t a clear victory for either side but did lean more in the state’s favor. Weaver hopes that will bring the Treasure Valley senior water users back to the table. If the ruling doesn’t prompt a compromise, the issue will probably end up in the Idaho Supreme Court.
*Additional information has been added to this story since it was first published.
Find Adam Cotterell on Twitter @cotterelladam
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