Idaho begins process of defining water rights

Preparations are under way for what could be the biggest lawsuit ever to hit North Idaho.

About 20,000 people are expected to be drawn into the massive legal action – known as adjudication – aimed at sorting out who owns the groundwater in the Spokane Valley/Rathdrum Prairie Aquifer, said Karl Dreher, Idaho Water Resources director. The process of defining each well owner’s portion of the water could begin by the end of the year.

Although North Idaho seems loaded with water – in snow, lakes, streams and underground – the area is also becoming loaded with people. Defining water rights now will help prevent a water crisis later, Dreher said. “If we ignore it, there will be a conflict and people will get hurt.”

As Idaho starts the process of counting the gallons, Washington is scrambling to protect its portion of the aquifer, which is roughly 122 square miles. At a conference in Coeur d’Alene earlier this month, officials from Washington were visibly annoyed when Dreher outlined Idaho’s plans to stake claims on the groundwater. An employee from Washington’s Department of Ecology asked if Idaho was attempting to take more than its rightful share of the water.

“There’s no pre-empting of anybody. It simply defines the rights that have already been established,” Dreher replied, stressing further that Idaho wants to work with Washington to eventually develop a plan to share and protect the aquifer. But he made it clear that both states need to conduct their own process of establishing exactly how much water is being used and who has a legal right to this water.

“You can’t manage that which you haven’t defined,” Dreher said.

The Washington Department of Ecology is considering “whether a similar effort is wise for Washington,” said agency spokeswoman Jani Gilbert. The attorney general’s office is also working with the agency to analyze Idaho’s decision to begin adjudicating the shared water resource.

“At the highest levels of our agency we’re trying to determine whether this would have a negative or neutral effect on Washington,” Gilbert said.

Since September, all new wells punched into Idaho’s portion of the Spokane Valley/Rathdrum Prairie Aquifer must be hooked up to a water meter. The well permit holders must submit regular reports on water consumption. They must also agree to simple water conservation measures. The changes are required as part of the state’s new groundwater management plan for the aquifer. In March, the Idaho Legislature authorized the state to begin adjudicating groundwater rights in North Idaho.

Although no time frame has been set, Dreher said the actual adjudication process of defining each and every water right on the aquifer in Idaho could begin by the end of the year. Investigating each claim will take as long as four years. Dreher said all well-permit holders on the Rathdrum Prairie should begin gathering historical documents showing proof of use and when the use began.

The process is starting just as Idaho finishes adjudicating an estimated 220,000 water rights claims on the Snake River Plain. When completed, it will be the largest successful adjudication of water rights in U.S. history, Dreher said.

Similar attempts in Arizona, Montana and Oregon have failed, including a bitter fight over ownership of water in southern Oregon’s Klamath River Basin.

The adjudication of North Idaho’s biggest underground water resource begins just as a massive federal study of the aquifer is nearing completion. The $3.5 million, multiyear effort to map and measure the aquifer is expected to be completed shortly. Ultimately, both Idaho and Washington hope to develop a cooperative plan to manage and share water in the aquifer.

Idaho’s decision to begin adjudicating is not unexpected, said Gilbert, with Washington’s Department of Ecology. But she did say the process is starting before most thought it would begin.

Spokane attorney and clean water activist Rachael Paschal Osborn suspects Idaho is getting a head start on the process to grab as much water as possible. The aquifer is huge, but not infinite, she said.

“The more water Idaho allocates, the bigger their claim. They have figured out that will put them in a better position,” said Osborn, who has been closely involved with the issue for the Sierra Club. “Once a state allocates a water right, it’s very hard to get it back. It’s going to be very difficult to undo what Idaho is doing now.”

Groundwater from the aquifer eventually flows into the Spokane River. Measurements going back more than a century show river flows declining as pumping in Idaho has increased, Osborn said.

The whole notion of cooperatively managing the aquifer was sparked by a proposal in 2002 to build a power plant on the Rathdrum Prairie that would have consumed upward of 14 million gallons of water each day. The plan was widely criticized and eventually shot down by the state of Idaho as being wasteful of the water resource. But Osborn notes the state has since issued 85 water rights permits for a combination of residential and commercial uses. The permits represent three times the water that would have been used to generate electricity.

“It’s not good faith for the state of Idaho to be continuing to issue water rights,” Osborn said. “The low flows we’re seeing in the river in late summer are a result of pumping from the aquifer during the year. Those low flows degrade water quality, and we’ve got a huge dissolved oxygen problem.”

More water in the river would help dilute pollution and provide more oxygen for fish and aquatic plants, Osborn said. Low oxygen levels are behind a crisis facing regional wastewater plants, which have traditionally used the river to carry away treated sewage.

Idaho officials categorically deny making a water grab. The Idaho Constitution makes it clear the state cannot issue a moratorium on new water rights unless there is hard evidence there’s not enough water left, said Bob Haynes, director of the Idaho Water Resources northern region office in Coeur d’Alene.

“We are not mining water from the Rathdrum Prairie system,” Haynes said. “We are not pumping more than is being recharged.”

Haynes said the state is simply trying to get a start on the complicated process of trying to manage a water supply that’s hidden hundreds of feet below ground.

“We have deliberately agreed to avoid posturing on who gets what,” Haynes said.

The cities of Post Falls and Couer d’Alene are both moving forward with new water conservation measures as part of the state’s program to begin managing the aquifer. Post Falls has already instituted bans on lawn irrigation during the heat of the day, but the city is also looking at other ways to cut down on use.

One of the biggest wastes has been summertime lawn watering. Coeur d’Alene, for instance, sucks as much as 35 million gallons of groundwater on a hot summer day, compared with just 5 million gallons on a typical mid-winter day, said Jim Markley, the city’s water superintendent.

“We’re not saying you have to plant cactus or paint the dirt in your yard green. Just don’t water the street, don’t grow rice in your backyard,” Markley said. “We’re really just trying to get people to think about conservation.”

Something as simple as not watering the lawn during a rainstorm might not sound revolutionary, but it’s an indication of a massive change in thinking about water in North Idaho, said Helen Harrington, a hydrogeologist for the Idaho Department of Water Resources.

“Conservation on the Rathdrum Prairie is a new concept,” she said. “Conservation for the Idaho Department of Water Resources is a precedent-setting concept.”