NOTE: The Idaho law in this article was current as of the date of its publication in 2009.
The Idaho Water Adjudication Court (“the Court”) has the power to declare the existence of basinwide issues for the purpose of adjudicating matters affecting large numbers of water rights holders. As that Court continues the Coeur d’Alene Spokane River Basin Adjudication (CSRBA) in North Idaho it should consider whether basinwide quantity water rights determinations are impacted by water quality issues due to hydrologic attributes of the Rathdrum Prairie Aquifer, Spokane River interstate instream flow requirements related to Washington State water quality requirements, and the need for municipal gray water disposal and the elimination of septic systems over the Rathdrum Prairie Aquifer.
In addition to using the Idaho Rules of Civil Procedure (I.R.C.P.), the Idaho Rules of Evidence (I.R.E.), and the Idaho Appellate Rules (I.A.R.), Idaho’s water adjudication Court created specialized rules of procedure, including the Snake River Basin Adjudication (SRBA) Administrative Order 1, amended 9/30/96 (“SRBA AO1”). The SRBA AO1 allows “[a]ny party to the adjudication [to] file a Motion to Designate [a] Basin-Wide Issue if that party believes an issue materially affects a large number of parties to the adjudication.” A “basinwide issue” is defined as “an issue designated by the Presiding Judge as potentially affecting the interests of a large number of claimants to the use of water within the [adjudicated basin] and the resolution of which will promote judicial economy.” To have the Court recognize a basinwide issue upon motion by a party, that party must state in its pleading: “(a) the issue, in 20 words or less, (b) why the issue is broadly significant and is better resolved as a basinwide issue, (c) the need for its early resolution, (d) the type of right(s) affected by the issue, and (e) a description of how those rights will be affected.” Conversely, the Court may sua sponte designate a basinwide issue.
Timing of Basinwide Issue Designation
Administrative Order number one states any “motion or notice of intent to designate may be filed at any time after the filing of [the Idaho Department of Water Resources (IDWR)] Director’s Report [for a given basin] which raises the issues that are the subject of the motion. The motion shall not be heard until after the objection and response periods to the Director’s Report have run.” Thus, while a motion or notice of intent to designate may be filed after the filing of a Director’s Report, only a party’s motion shall not be heard until after the objection and response periods to the Director’s Report have run. A reasonable interpretation is that the Court retains the power to designate a basinwide issue prior to the filing of a Director’s Report. It is likely that the SRBA AO1 procedures will be used for the CSRBA, although a redesignation as the Idaho State Water Court Administrative Order number one (ISWC AO1) may be appropriate given that the CSRBA is not the SRBA, and the CSRBA is likely not the final adjudication of water rights within the State of Idaho. Thus, in all three of the proposed North Idaho adjudicationsthe Court arguably has the power to designate on its own initiative basinwide issue(s) prior to the filing of a Director’s Report and without the submission of a party’s filed motion.
Basinwide Issues v. General Provisions
In the SRBA, some basinwide issues were related to the status of partiesor statutory and constitutional construction. Some were related to how IDWR should manage the water rights following the final decree. There is a difference between a basinwide issue and a general provision. A basinwide issue is generally identified during adjudication for the purpose of reaching the decision in the final decree, whereas a general provision is for the purpose of administering water rights by IDWR following the decree. However, while some basinwide issues are resolved during adjudication with no effect on later administration of the right, some evolve into general provisions that are attached to the decrees to assist IDWR in administering the right after the adjudication has ended. The Idaho State Supreme Court found the Court’s inclusion of general provisions in its decree so that IDWR could “administer the rights decreed [wa]s not an impermissible delegation” of executive authority to the judicial branch. Therefore, the Court may designate both basinwide issues and general provisions that effect IDWR’s post-decree administration of water rights.
Meaning of Senate Bill 1205
In the CSRBA region, flat topography and ditch works for irrigation serve relatively few water users, in comparison to the more numerous groundwater well users. Thus, conjunctive management of surface and groundwater issues should be vigorously used in the CSRBA region. Additionally, in 2007, the Idaho Legislature passed Senate Bill 1205, which included a provision at Section 5 stating:
It is legislative intent that work on the Northern Idaho Adjudication be limited in this fiscal year to the Rathdrum Prairie water rights and to Idaho-Washington cross-border water issues.
Senate Bill 1205 was a fiscal year 2008 appropriation of funds to IDWR, but within that bill the Legislature did not identify what it believed to be “Idaho-Washington cross-border water issues.” As far as its mention of Rathdrum Prairie water rights, it seems clear that the Legislature required IDWR to begin accepting CSRBA claims in the north portion of Basin 95, and to work its way south. However, we can only speculate on what it meant about the substance of Idaho-Washington cross-border water issues. It is reasonable to assume that because the Spokane River is where the majority of the surface water in the CSRBA leaves Idaho that the Legislature meant to indicate that basinwide issues arising related to cross-border concerns should be identified and raised in the initial part of the adjudication process.
Even though a legislatively enacted fiscal year appropriations bill such as Senate Bill 1205 is not a permanent statute, their similar origin, creation, and enactment likely results in a similar judicial branch interpretive methodology. “When interpreting a [legislative enactment], the Court begins with the plain language.”“[I]f the statutory language is clear and unambiguous, the Court need merely apply the statute without engaging in any statutory construction. . . . Statutory interpretation begins with the words of the statute, giving the language its plain, obvious and rational meanings.”
Assuming the use of that methodology for interpretation of the Section 5 language in Senate Bill 1205, it is reasonably arguable that the Legislative directive requires IDWR to consider cross-border issues unrelated to water volume, its usual agency mission. Against that argument, this is a fiscal year appropriation to IDWR, and to no other agency. Further, Section 5’s directive only relates to IDWR’s “work,” which agency work is primarily related to water volume, and not water quality for which we have a separate state agency entitled the Idaho Department of Environmental Quality (IDEQ) not included in this Senate Bill appropriation. Unfortunately, the argument that the plain language limits the directive to water volume issues is undermined by the disjunctive phrase “Rathdrum Prairie water rights and to Idaho-Washington cross-border water issues.”
The Legislature separated Rathdrum Prairie water rights from Idaho-Washington cross-border water issues. However, while we cannot go into the committee rooms and hallways wherein our law was created to ascertain the Legislature’s subjective sense of what required inclusion in that Senate Bill, any North Idahoan who reads the newspaper regularly will quickly discern that water quality issues and relations with our neighboring State of Washington are inextricably bound. They are not only bound, but primary in the public mind, especially with the publicity given various reports named below related to the Rathdrum Prairie Aquifer, the Spokane River, and Lake Coeur d’Alene. Therefore, the legislative directive may be for the IDWR to not only administer CSRBA surface and groundwater rights using conjunctive management administrative tools, but for it and the IDEQ to work together to design hydrologically-based tools for the conjunctive management of water quantity and water quality issues. This interpretation of the legislative directive would cogently recognize the natural hydrologic cycle.
Potential CSRBA Basinwide Issue Considerations
A hydrogeologic study of the Rathdrum Prairie Aquifer was funded by Congress in 2003 and finished in 2007. The result was the most comprehensive hydrogeologic study to date of that hydrologic system. One of the findings was that given current uses the aquifer inflows and outflows were nearly balanced. A CSRBA process that takes five to ten years will grapple with growth issues and their impacts on water quantity within that watershed.
In November 2006, Kootenai County Commissioners approved Resolution 2207-09 to form the Rathdrum Prairie Aquifer Protection Districtto track the quality of the region’s drinking water. That taxing district assesses $8.00 per year against occupied real property parcels in the district. Kootenai County residents are willing to pay for protection of water quality.
In June 2008, the Coeur d’Alene Tribe and the IDEQ completed and offered to the Idaho Legislature a Lake Management Plan (LMP) for Lake Coeur d’Alene. “The scope of the 2008 LMP encompasses the entire Coeur d’Alene Lake Basin. The reason for this is practical: loading of the lake with metals, sediments, and nutrients results from activities that occur around the lake, in upland areas, and along tributary streams and rivers.”“The scope is intended to follow natural boundaries, promote integrated solutions, and maximize the use of available resources to benefit water quality.”The added emphasis by italics shows that the LMP provides support for an integration of IDWR’s and the Court’s CSRBA efforts with the Tribe’s and IDEQ’s LMP, suggesting an extension of conjunctive management to include water quality would lead to administrative efficiencies and greater cost-effectiveness of water management, administrative processes. Whether the court finds a basinwide issue applicable or merely grounds for including general provisions related to water rights in the CSRBA is an analysis that should be undertaken at the appropriate time.
Idaho Code section 42-1501 states the “public health, safety and welfare require that the streams of this state and their environments be protected against loss of water supply to preserve the minimum stream flows required for the protection of fish and wildlife habitat, aquatic life, recreation, aesthetic beauty, transportation and navigation values, and water quality.” Instream flows for those purposes are a beneficial use in the public interest.The CSRBA lake, aquifer and river volume flows are paramount to resolution of interstate relations with Washington. The origin of the flows, the flows themselves, and the quality of the water in those flows may be addressable as basinwide issues for water rights claimants in the CSRBA. “[M]inimum stream flow is a beneficial use of water . . . for the purpose of protecting such waters from interstate diversion to other states . . . for use outside the boundaries of the state of Idaho.”
The CSRBA Court has the power to declare the existence of basinwide issues for the purpose of adjudicating matters affecting large numbers of water rights holders. Even though the structure of Idaho’s state agencies does not mirror the single system hydrologic cycle in a single agency, the Court should consider encouraging a four-way conjunctive management approach to basinwide issues and general provisions so that adjudication and future administration of CSRBA water rights consider surface water, ground water, water quantity, and water quality in a set of comprehensive tools for management of North Idaho water.
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State v. Hagerman Water Right Owners, Inc., 130 Idaho 727, 729 (1997).
Id., citing the then current SRBA AO1(17)(a)(1), now SRBA AO1(16)(a)(1).
Id., at (2).
Id., at (5).
I.C. § 42-1406B, “. . . the Coeur d’Alene-Spokane river basin, the Palouse river basin, and the Clark Fork-Pend Oreille river basins, which do not include basin 98.”
Basinwide Issue #2: “What is the role of the Director, i.e., the Idaho Department of Water Resources, as a party in this statutory adjudication requiring the judicial determination of each claimant’s right to the use of water in the Snake River Basin?” State v. Hagerman Water Right Owners, Inc., 130 Idaho 718, 719-720 (1997).
Basinwide Issue #3: “Can the legislature expand or reduce the court’s jurisdiction in the SRBA after jurisdiction attaches to the parties and subject matter of the action following the issuance of the Commencement Order and the filing of notices of claims?” State v. U.S., 128 Idaho 246, 252 (1995).
Basinwide Issue #5: “[W]hether each of the Test Basins, Director’s Reporting Areas 1 (Basin 34), 2 (Basin 36), and 3 (Basin 57), should be subject to general provisions regarding firefighting purposes, irrigation uses, and conjunctive management.” In Re SRBA Case No. 39576, Order of Consolidation/Separation of Issues, fn. 1 (Aug. 31, 1999); see Basinwide Issue #10: “[a]re water rights in Idaho subject to partial forfeiture for nonuse?” State v. Hagerman Water Right Owners, Inc., 130 Idaho 727, 729 (1997).
I.C. § 42-1412(6): “The decree shall also contain an express statement that the partial decree is subject to such general provisions necessary for the definition of the rights or for the efficient administration of the water rights.” For a discussion of general provisions, see A & B Irr. Dist. v. Idaho Conservation League, 131 Idaho 411 (1997) (“[A] provision regarding firefighting should be included as a general provision in regulations and the period of use for irrigation water rights as the irrigation season.”).
State v. U.S., 128 Idaho 246, 262 (1995).
The total of previously adjudicated water rights between private parties, licenses and permits, and statutory claims for the CSRBA region is 4097, whereas the number of recorded wells is 10,858, per Don Schaff, IDWR Adjudication Bureau Chief, Slide title: Projected Counts, Microsoft Powerpoint presentation, dated Apr. 17, 2006. In an email dated Oct. 18, 2006, Mr. Schaff stated that for the SRBA region, “IDWR does have records for 42,791 recorded wells [statewide] prior to Nov 19, 1987, but that number was the tip of the iceberg for the number of claims from wells in the SRBA.”
S.B. 1205, 59th Leg., 1st Reg. Sess. (Id. 2007).
In re SRBA, Case No. 39576, Subcase No: 29-11609, Pocatello v. State, 180 P.3d 1048 (2008).
State v. Hagerman Water Right Owners, 130 Idaho 727, 732 (1997).
S.B. 1205, 59th Leg., 1st Reg. Sess. (Id. 2007).
Coeur d’Alene River Cooperative River Basin Study, U.S. Dept. of Agriculture, Sept., 1994; IDWR Order re: Rathdrum Prairie Ground Water Management Plan, Sept. 2005; and see Coeur d’Alene Press Article: Report: Spokane River on deathbed, Sept. 2003 (pollution in river threatens downstream users); Coeur d’Alene Press Article: Tribe takes long look at lake, Oct. 2003 (management of water quality); Coeur d’Alene Press Article: We can pay now or pay more later, Feb. 2004 (sewer management fees to protect prairie); Coeur d’Alene Press Article: Report calls for river cleanup, Feb. 2004 (Wash. DOE issues report on Idaho phosphorus pollution); Coeur d’Alene Press Article: Basin plan scrutinized, Apr. 2004 (CdA Tribe and IDEQ worry about Lake exclusion from Superfund); Coeur d’Alene Press Article: Aquifer study bogs down, Apr. 2004 (Minimal funding, red tape impede two-state project to analyze Rathdrum Aquifer); Coeur d’Alene Press Article: Plant complement sought, May 2004 (Post Falls eyes property for land application of treated wastewater); Coeur d’Alene Press Article: Lakeshore owners brace for water fight, July 2004 (Fish and Game calls for higher flows for Spokane River).
http://www.idwr.idaho.gov/hydrologic/projects/svrp/, accessed 3/5/09.
U.S.G.S. Scientific Investigations Report 2007–5041, Summary, (Total estimated mean annual inflow to the aquifer is 1,471 cubic feet per second. Total estimated mean annual outflow from the SVRP aquifer is 1,468 cubic feet per second.).
http://id-kootenai-assessor.governmax.com/propertymax/rover30.asp?sid= ADDD240227864BD7B05454020E33BC5B, accessed 3/5/09.
Kootenai Co. Board of Comm. Meeting Minutes, Aug. 2007.
http://www.deq.state.id.us/water/data_reports/surface_water/water_bodies/cda_lake_mgmt_plan_draft_0608.pdf, accessed 3/9/09
Id., at p. ii.
Id., emphasis added.
I.C. § 42-1501.
Id., and see definition of “minimum stream flow” at 42-1502 (f).