TWIN FALLS, Idaho • Groundwater users across the Magic Valley again face the threat of having their water shut off this summer because of Rangen’s water call, says a new ruling.
The Friday ruling reduces the number of users and total acreage whose water could be curtailed May 5 to fill Rangen’s Hagerman fish hatchery water call. But it does little to address a long-term solution to Rangen’s call and leaves other groundwater users vulnerable after this year should an agreement not be reached.
Both sides agree the fight is not over. A water law judge likely will decide the call’s fate later this year.
Rangen has a senior water right and made a call in 2011 on its diminished spring water supply.
In response, the curtailment of 2,300 junior right holders’ groundwater access across 157,000 acres in the Magic Valley was curtailed earlier this year by Gary Spackman, director of the Idaho Department of Water Resources.
Many said that order would have devastated the local economy, as it would have affected 14 cities, five school districts, irrigators and dairies, and shut off 3,000 cubic feet per second of water to push a mere 9 cfs to Rangen’s spring.
But the curtailment was delayed to consider an Idaho Groundwater Appropriators (IGWA) mitigation plan.
In March, IGWA and Rangen attorneys argued in Boise for three days on that plan, which proposes a number of solutions, most to give Rangen spring water from other area senior-rights holders.
Rangen attorneys said the plan was only “theoretical,” but IGWA said it hadn’t been given enough time to shore up the plans.
IGWA painted Rangen as a stubborn company unwilling to find solutions so it can use the massive curtailment threat to raise the price of a settlement or sale.
Spackman’s Friday ruling strikes down much of IGWA’s mitigation plan, agreeing with Rangen that IGWA did not provide enough information to examine.
Spackman, however, gives IGWA some credit for prior recharge and mitigation water, lifts the previous curtailment order and sets in place new options. The order presents two levels of curtailment to be implemented May 5.
IGWA needs to get Rangen 9.1 cfs staged in over five years. The first year requirement was for 3.4 cfs. Spackman ruled that IGWA is short either 0.4 cfs or 0.6 cfs of that 3.4, depending on subsequent actions by a lone irrigator with rights senior to Rangen’s in its spring.
If that user ceases gathering water from the spring Rangen also uses, IDWR will curtail rights junior to July 1, 1983, across 25,000 acres – 531 rights in all.
If that user does not stop his gathering, IDWR will curtail rights junior to Oct. 13, 1978, across 38,000 acres – 957 rights in all.
IGWA attorney T.J. Budge said he thinks the irrigator will agree to cease his diversion. “He doesn’t need that because we can deliver him that water.”
Budge said IGWA soon will ask the director to freeze the situation – to again stay curtailment and reconsider – so the matter can be taken up by District Judge Eric Wildman in the Snake River Basin Adjudication Court.
Both parties have appealed Spackman’s initial curtailment order to Wildman, and an August hearing is scheduled. Budge said Wildman might overturn the initial curtailment order.
If the director declines IGWA’s request for a stay and reconsideration, the curtailment order will go forward for this year. What happens for the remaining four years to get Rangen its full 9 cfs remains unclear.
Budge said IGWA’s best chance remains a second mitigation plan it filed to pipe Rangen water from nearby Tucker Springs.
Also on the table is a “silver bullet” option Spackman considered but shrugged off in this ruling. That option is mired in water law, but it proposes IGWA gaining the right to use 12 cfs of water Rangen had been diverting without a permit for years.
If approved, IGWA would give that water back to Rangen for mitigation. Spackman said there was no legal basis to consider that option, as it was still a “bare” water right application.
Budge said IGWA disagrees with the director’s rationale to reject most of its plan wholesale. Spackman has arbitrarily “raised the bar” for mitigation by requiring engineering plans and computer models up front, he said.
“These are not standards the department has required in the past,” Budge said. “And they are not required under the rules that govern mitigation plans.”
Budge said it doesn’t make much sense to require IGWA to spend thousands of dollars acquiring water rights, easements, engineering studies and design plans before the department decides those ideas are acceptable mitigation.
“In our view, that’s putting the cart before the horse, and that’s not how the department does anything else,” he said. “…We’re very frustrated by that, and we don’t think it’s practical at all.”
Rangen attorney Fritz Haemmerle said the company mostly agrees with the “complicated” ruling and compliments the director for holding IGWA to its promises.
But he said Rangen also likely will file a motion for reconsideration, as it did not agree with a certain portion for which IGWA received credit.
“The director showed obvious objectivity in this, and we are very grateful that he did,” Haemmerle said. “To order curtailment I think takes a lot of courage. And I think this director showed that conjunctive management is a real process and it actually has some teeth to it.”