State lays groundwork to sort out water rights
BOISE – Here’s how up-to-date Idaho’s water rights records are: They show a substantial water right in North Idaho held by one Arthur D. Peacock, for the purposes of floating logs down a man-made channel to Benewah Lake.
Peacock was 44 years old when he applied for the water right in 1914 – which would make him 137 today if he was still driving logs downstream. The water right – for eight times the current water usage of the entire city of Coeur d’Alene – could have expired for non-use decades ago, or it could have been bought and sold several times and still be in use today. The state doesn’t know.
Yet, under Idaho water law, it’s the oldest water right that prevails when there’s a shortage. So the official paper trail is key when a dispute arises – like when someone in North Idaho drills a well, and their neighbor’s water suddenly dries up.
Idaho’s about to embark on a massive “adjudication” – a court process to sort through and document who holds valid water rights and who doesn’t. Washington is moving toward the same step, and the two states both are concerned about the aquifer that they share, the massive underground Spokane-Rathdrum Prairie Aquifer, which provides drinking water for the entire region.
Idaho lawmakers overwhelmingly voted to start a North Idaho adjudication two years ago, with 12 North Idaho legislators co-sponsoring the bill. But now, as the process nears, some are worried about the uncertainty and cost associated with sorting through 100 years of water use in North Idaho.
“It’s the concern about the unknown – that’s the most challenging part of the adjudication process,” said Dave Tuthill, state water resources director.
Five public information meetings were held in North Idaho last week, and they revealed a split. In Coeur d’Alene, Post Falls and Rathdrum, residents were eager to clear up their water rights as development presses in around them. In St. Maries and Wallace, however, turnouts were high and most were dead-set against the idea.
“There was more concern than we knew about,” Tuthill said. “That’s the value of a public meeting, is to find out.”
Rep. Dick Harwood, R-St. Maries, the lone dissenter in the Idaho House’s 64-1 vote to pass the bill in 2006, sent a letter to Gov. Butch Otter two weeks ago urging him to “take the money from the North Idaho adjudication and use it where it is really needed most, which I feel is in southern Idaho. It would be nice to have the IDWR complete southern Idaho’s water adjudication before they stir up a big mess in northern Idaho as well.”
Harwood said Friday, “This thing was just going through like a house afire. … It’s gonna be a lawsuit and mess for a long time.”
Both Tuthill and Otter said the state will hold off on filing the court papers that initiate the adjudication to allow more chance for dialogue and public education.
“There was some confusion as to what was involved … why this was happening and what it meant,” said Otter’s spokesman, Jon Hanian. “In the interest of trying to bring some clarity to that, the governor said, ‘Let’s hold off a little bit here and give people an opportunity to get caught up and up to speed on what’s happening and why.’ “
Southern Idaho, where farmers, cities and others have been fighting over short water supplies, has been embroiled in the nation’s largest water rights adjudication for the past 20 years, but it’s nearly over. That process has brought numerous Idaho Supreme Court rulings clarifying various aspects of Idaho water law. Tuthill said, “While it’s been a long and difficult process, it has been successful by all measures.”
Courts have issued more than 130,000 decrees of water rights in that Snake River Basin Adjudication.
In North Idaho, by contrast, only about 15,000 claims are expected, and for the most part, there’s no shortage of water. But there are just 5,000 water rights on the books – meaning two-thirds aren’t in the records anywhere.
Many are still valid, however. Up to 1963 for groundwater and 1971 for surface water, Idaho law allowed people to gain water rights simply by making “beneficial use” of the water – without filing with the state. People who can document that they did that before those years could make their water rights official in the adjudication – if they file – with the “priority date” of when they started using the water.
Those who started using water after those dates, however, and never filed even when the law required it, may not have valid water rights and would have to start from scratch with new filings and present-day priority dates.
Domestic wells serving just one home fall under a special exemption: They’ve never been required to file their water rights, though they can. Now, in the adjudication, they’ll all have to file. If they don’t, they can keep their rights – but they’ll get less-senior priority dates, dating from after all other claims in the adjudication are filed.
State law says water rights that haven’t been used for five years expire, though there are some exceptions. Don Shaff, adjudication bureau chief for the Idaho Department of Water Resources, said, “It’s a real property right, so it’s very touchy.”
The move toward an adjudication started a few years back when applications came in for huge water rights for two proposed water-guzzling gas turbine power plants on the Rathdrum Prairie. That would’ve tapped the same water supply that provides drinking water for Spokane, and objections arose on both sides of the state line.
Both of those applications were turned down, and they ushered in a new awareness of the need for both states to pay attention to how the area’s water is used. “They were denied on the basis that they were going to use a fairly water-consumptive technology that was not consistent with the conservation of water in Idaho,” Tuthill said.
Rep. Jim Clark, R-Hayden Lake, who sponsored the adjudication bill in the House, said: “That’s why we’re doing this. How can we argue with anybody over how much we have, if we don’t even know how much we have? That’s why we’ve got to get ‘em all in the room to find out who’s using it and who isn’t using the water, and if they don’t file now, guess what: They don’t have one (water right). That might scare some people, too.”
Jim Markley, water superintendent for the city of Coeur d’Alene, said the city is looking forward to nailing down its rights to the 37 cubic feet per second it draws from nine wells to serve close to 15,000 homes. “We think it’s a great thing,” Markley said.
“We have a whole bunch of people that want to extract water on this side of the border and the other side, and if we don’t know how much is committed, we don’t know how much is left to divvy up,” Markley said. “And there are a lot of users.”
Avista Corp., one of the largest water rights holders in the Coeur d’Alene Basin, agrees. “It only makes sense that if you think you have some sort of a property right, that the state verify that they agree that’s what you’ve got, too,” said Neil Colwell, Avista lobbyist. “You’re going to have to do it sometime. So why not do it now?”
Fees have been an issue, but most water rights claim filers will pay only a flat, one-time fee of $50 or $100. Larger users will pay more, based on the amount of water they divert, but it’s still a one-time filing fee.
Colwell estimated that Avista will pay $70,000 in filing fees to adjudicate its rights to use Spokane River water for power generation at the Post Falls Dam. “That’s a pretty minimal cost,” he said, adding that the power company is more concerned about its Cabinet Gorge dam, where filing fees will be more than $1 million.
According to state law, the Coeur d’Alene-Spokane River drainage water rights will be adjudicated first, followed by the Palouse aquifer, and then the far north to the Canadian border, including the Pend Oreille and Priest Lake areas.
Under a federal law known as the McCarran Amendment, if a state adjudicates an entire basin’s water rights, both federal and tribal water rights are required to be claimed in state court – which normally wouldn’t have jurisdiction over either. Idaho law directs the state water resources department to take that approach, and examine water rights basinwide.
After conducting five public meetings last week with such mixed results, Shaff said he feels “challenged.” He said, “We’ll sort of step back, regroup, address the concerns that are out there, listen to those concerns. I knew they weren’t going to throw a party and sort of welcome me with open arms.”