Un hombre "radar"

A distinct issue is presented where a person seeks a new appropriation of waste water generated by another appropriator. Since the new appropriation would carry a junior priority date, and would be allowed only in the absence of injury to other users, it does not present the same enlargement concerns described above. Indeed, such waste water appropriations are common and are analyzed essentially like any other new appropriation.

However, as indicated above, an important caveat is that the new appropriator of waste water has no guarantee that the waste water will continue to be available. For instance, the original appropriator who generates the waste water could cease diverting altogether so as to leave the new appropriator without a water source. Likewise, the original

appropriator might alter his or her operation to reduce the amount of waste water generated (e.g., by ditch lining). Finally, as noted, the original appropriator may recapture the waste water for use on existing lands.

In Sebern v. Moore, 44 Idaho 410, 258 P. 176 (1927), the court confirmed the basic right to appropriate waste and seepage water made available as a by-product of the diversions of other appropriators. (Prior to this decision, there was some thought that appropriations might be limited to water naturally occurring.) Indeed, in Sebern, the waste water appropriator was allowed to re-establish his diversion of waste water after a waste ditch was relocated by another

appropriator. The court added the now-familiar caveat, however, that the waste water appropriation is “subject to the right of the owner [that is, the person generating the waste water] to cease wasting it, or in good faith to change the place or manner of wasting it, or to recapture it, so long as he applies it to a beneficial use.” Sebern, 44 Idaho at 418. This is significant given that in a change or transfer application, the prior appropriator is not allowed to make any change (even in good faith) that would injure a junior.

In Hidden Springs Trout Ranch v. Hagerman Water Users, Inc., 101 Idaho 677, 619 P.2d 1130 (1980), the Idaho Supreme Court unanimously reaffirmed the principle that a third-party appropriator of waste water may not compel the original diverter to continue the practices leading to the generation of the waste water. The court emphasized that it makes no difference whether the waste water arises before the use (from a leaky canal) or after the use (from post-irrigation tail water, for example). The original appropriator may at any time cease the practice giving rise to the waste water, even to the detriment of those who hold valid water rights in that waste water (subject, of course, to the limitations as to non-enlargement and beneficial use as described in A&B Irrigation Dist. v. Aberdeen-American Falls Ground Water District, 141 Idaho 746, 752, 118 P.3d 78, 84 (2005)).

These legal principles pertaining to waste water have been followed in the Snake River Basin Adjudication (“SRBA”). Special Master Terry Dolan reiterated these principles in Special Master’s Report, In re SRBA, Case No.

39576, Subcases 75-4471 and 75-10475 (Silver Creek Ranch Trust) at 4 and 6-7 (September 28, 2009). Similarly, in In re: Janicek Properties, LLC, Memorandum Decision and Order on Motion for Summary Judgment, In re SRBA, District Court of the Fifth Jud. Dist. of the State of Idaho, Subcase No. 63-27475 (May 2, 2008), the Bureau of Reclamation and its contracting irrigation district argued that they constructed a drain and could trace most or even all of the water in it to seepage and return flows from the district’s irrigated lands. They contended that the drain was not a natural watercourse

and that they should be deemed the owner of the drain and the water in it. Based on this reasoning, they asked the adjudication court to invalidate a farmer’s 1951-priority licensed water right pursuant to which he pumped water from the drain to irrigate his crops. The Special Master rejected this challenge to the farmer’s drain water right, ruling that, regardless of who constructs a drain, the water in it is “public water of the state of Idaho and subject to appropriation and beneficial use.” Janicek Properties, slip op. at 6. The court found that whether the drain is a natural watercourse “is immaterial—what matters is that the water is water of the state” and is subject to appropriation. Id. at 8.

Once water is released by the original appropriator and is beyond his or her control (whether that be to an artificial conveyance such as a drain or to a natural stream or aquifer), it becomes public water once again and subject to

appropriation. Referring to such a source as “waste water” undoubtedly has led to some confusion over the years. Other than the caveat discussed above (that the new appropriator cannot complain if the waste water is no longer supplied), there is little to be gained in attempting to distinguish it from water occurring naturally. Even a constructed drain at times will carry natural runoff. Similarly, natural stream flows in agricultural areas nearly always contain some measure of return flow and seepage, either those flowing to the stream as surface returns or those arriving through ground water discharge.

The essential rule is simply that public waters are subject to appropriation regardless of their origin or whether they are found in drains or similar structures.

Of course, appropriation of waste water, like appropriation of any water, is subject to a no injury test.

18. MORATORIUMS

The Department is authorized to suspend processing of permits and applications for new water rights upon a determination that such action is necessary to protect existing water rights, including the state’s minimum stream flow rights.⁵³⁸ From time to time since 1989 the Department has acted under this authority to impose moratoriums on the appropriation of new water rights.⁵³⁹ Some of these orders remain in effect, substantially restricting new appropriations in significant portions of the state.

The discussion in this chapter traces the history of the 1992 Moratorium Order originally covering the entire Snake Plain Basin. (Appendix K contains a detailed summary of these moratoriums as well as copies of the orders and other documents.) The reader is referred to IDWR’s web site for information on additional specialized moratoriums, including the Twin Falls Geothermal GWMA Moratoriums, the Salmon and Clearwater Basins Moratorium, the Big Lost River Drainage Moratorium, the Mud Lake Area Moratorium and the Wilderness Water Rights Moratorium. Key moratoriums, and a summary chart, are set out under Appendix K. Some, but not all of the Department’s moratorium orders are listed on the Department’s web site (www.idwr.idaho.gov).

Although the statute authorizes the Department to halt processing of both new applications and permits, the Department has never suspended the processing of issued permits. Instead, the moratoriums have been limited to the processing of applications for permit. Holders of existing permits, licenses, and beneficial use rights are unaffected.

Likewise, transfers of existing rights are unaffected.

These moratoriums apply within defined geographic areas based on hydrological boundaries. They are based on a determination by the Director that the area is fully appropriated and that any new water rights are likely to impair other uses and interfere with the administration of water rights generally.

Due to an extended drought beginning in 1986, the Director issued the first large-scale moratorium in 1992.⁵⁴⁰ It prohibited the issuance of new permits for consumptive use of both ground and surface water in the Snake River basin upstream from Weiser, Idaho, covering a large portion of southern Idaho.

The moratorium was amended on January 6, 1993 to eliminate the “non-trust water area” (an area in the southeast of Idaho, mostly outside of the ESPA in the vicinity of American Falls Reservoir, where ground water is tributary above

538 Idaho Code § 42-1805(7); IDAPA 37.03.08.055. The Department’s practice is to issue moratoriums by way of order, without public hearing or comment.

539 In 1980, the Department issued a memorandum expressing its view that there is no surface water available for appropriation during the irrigation on the Boise River upstream of Lucky Peak Reservoir. See Appendix K. That memorandum remains in effect as an expression of the Department’s viewpoint. However, it does not have operative effect as a moratorium order. In other words, an application for a new appropriation could still be filed and processed, but the applicant should be aware of the Department’s predisposition regarding the unavailability of additional water for appropriation.

540 In the Matter of Applications for Permits for Diversion and Use of Surface and Ground Water Within the Snake River Basin Upstream from the USGS Gauge on the Snake River Near Weiser (IDWR Moratorium Order, May 15, 1992). (See Appendix K.) Two previous orders, affecting the Big Lost River drainage and the Mud Lake area, issued in 1989 and 1990 respectively, were subsumed within this order.

the Milner Dam).⁵⁴¹ The non-trust water area was then made subject to a separate five-year moratorium, ⁵⁴² which has since expired.⁵⁴³

The 1992 moratorium was amended again on April 30, 1993, limiting its applicability to the Boise River Drainage Area and the Eastern Snake Plain Area (still, very substantial areas).⁵⁴⁴ The Eastern Snake Plain Area is defined as the trust water area on the Snake River upstream of the King Hill gage.

In 1994, the Legislature adopted a statute preventing the Director from removing that portion of the April 1993 amended moratorium applicable to the Eastern Snake Plain Aquifer prior to December 31, 1997.⁵⁴⁵ That prohibition has now expired, but the moratorium remains in effect.

The moratorium was modified again in 1995 to largely exempt the Boise River drainage area.⁵⁴⁶ Shortly thereafter, however, the Department issued an “Administrator’s Memorandum” which effectively re-imposed the moratorium on an informal basis, but only with respect to the Lower Boise River Basin below Lucky Peak Dam.⁵⁴⁷

In recognition of the fact that small domestic water users are exempt from statutory permit requirements, these moratoriums exempt such uses from their coverage.⁵⁴⁸ The current moratoriums also authorize the Director to make special exceptions based on the public interest or a determination that the particular appropriation will have no effect on other users.

541 In the Matter of Applications for Permits for Diversion and use of Surface and Ground Water Within the Snake River Basin Upstream from the USGS Gauge on the Snake River Near Weiser (IDWR Moratorium Order, Jan. 6, 1993) (the first of two moratorium orders issued on this day). (See Appendix K.)

542 In the Matter of Applications for Permits for Diversion and Use of Surface and Ground Water Within the Snake River Basin Upstream from Milner Dam (IDWR Moratorium Order, Jan. 6, 1993) (the second of two moratorium orders issued on this day). (See Appendix K.)

543 “This moratorium shall be in effect on and after its entry and shall remain in effect until December 31, 1997.” Order at ¶ 1.

However, paragraph 9 of the Order contemplated that the Director would issue an order affirmatively ending the moratorium, which action never occurred. For some time after 1997, an internal debate occurred within the Department as to whether the moratorium remained in effect and at least one order recognized its continuing effect. More recently, the Department has concluded that the moratorium has indeed expired. Despite the expiration, however, the Department views the non-trust water area as fully appropriated (with the exception of occasional spills over Milner dam) and is unlikely to approve new appropriation applications in the non-trust water area. Conversation between Shelley Keen (Manager, Water Right Permits Section) and Christopher H. Meyer (May 18, 2009).

544 In the Matter of Applications for Permits for the Diversion and Use of Surface and Ground Water Within the Eastern Snake River Plain Area and the Boise River Drainage Area (IDWR Moratorium Order, Apr. 30, 1993). (See Appendix K.)

545 1994 Idaho Sess. Laws. ch. 449, § 1 (formerly codified at Idaho Code § 42-1806). (See Appendix K.)

546 In the Matter of Applications for Permits for the Diversion and Use of Surface and Ground Water Within the Boise River Drainage Area (IDWR Moratorium Order, May 3, 1995). (See Appendix K.) Despite lifting the moratorium, the order imposed restrictions on the processing of new surface water applications for diversions from the Boise River upstream of the Star Bridge, unless mitigated to avoid injury. However, the effect was simply to limit new appropriations to flood water, which would be the case anyway. Thus, the practical effect was to eliminate the moratorium as to the Boise River Drainage Area.

547 Norman C. Young, IDWR, Administrator’s Memorandum – Application Processing No. 59 (June 20, 1996). (Reproduced in Appendix K.)

548 The moratorium does not reference the definition of domestic uses in section 42-111 (or any other definition). Thus, it is not clear whether or not the use of the term “domestic” in those moratoriums is intended to pick up the nuances under the statute discussed in section 6.G at page 38.

Moratoriums are issued on a summary basis.⁵⁴⁹ That is, the Director does not engage in a public hearing or contested case process before issuing the moratorium. However, a moratorium may be challenged after issuance.⁵⁵⁰ To date, no one has challenged either the Director’s authority to issue moratoriums or the propriety of any specific

moratorium.

549 IDAPA 37.03.08.055.01.b.

550 IDAPA 37.03.08.055.01.c.

19. THE “TWO RIVERS”CONCEPT ON IDAHO’S SNAKE RIVER