PUB00147 - Laserfiche WebLink

Home Browse Search

. . . Western States Water Council Legal Committee Sioux Falls, South Dakota May 3, 2007 The second one involves ownership of storage water rights, particular at Bureau of Rec:lamation facilities. The court found that, although the name of the U.S. government is on the decree for the water rights, there is an ownership interest with the water users themselves. It's kind of the legal title verses equitable beneficial use ownership question. The third one involves the rules that were promulgated by Karl's predecessor, Keith Higginson, with regard to conjunctive management of surface and groundwater. The challenge in the district court was to the rules, as to whether they were constitutional on their face, not as applied. District court Judge Wood had found the rules were okay as far as they went, but important components of the prior appropriation doctrine in Idaho, particularly procedural aspects and burden of proof, were not included in the rules. Therefore, they were unconstitutional and needed to be rewritten. The supreme court acknowledged that Judge Wood included a pretty good and lengthy recitation of the law in his opinion, but notwithstanding that, they felt he was wrong. They found that the provision in the rules that incorporated by reference all of the other provisions ofIdaho law was sufficient. Therefore, the rules were found constitutional on their face. There's been a motion for rehearing filed, not to reconsider the whole opinion, but the language particularly with regard to carryover storage. Three questions that have been put in front of the court by some of the folks that did not prevail are: Does the use of the Idaho water bank constitute waste of water? The second one relates more to the precise issue of conjunctive management, and the third question is whether there is a legal distinction between the use of storage in a particular year and the use of storage in subsequent years through carry over. Opinions range widely on whether those are really issues that the supreme court touched on or not and so they want the court to rehear it. Some parties have filed motions to participate as an amicus in the event that the rehearing is granted. There is no decision yet from the court as to whether they .are going to grant a rehearing. Lastly, we still have our Upper Snake Biological Opinion (BiOp) issue in front of the feder.al district court in Portland. We have a status conference on June 20, which we will be getting an update on where the Bureau and NOAA Fisheries are on rewriting the BiOp. Closely paired with that is the BiOp preparation for the downstream dams on the federal Columbia River Power System. The BiOp affects at least 4 different states and there is hope that there may be a collaborative resolution of that BiOp. The federal government is supposed to produce a revised proposed action for the projects on May 21. Everyone has an opportunity to provide comments prior to the status conference: The current BiOp is governing the river under the ESA. North Dakota Dale Frink: The State of North Dakota may end up in it's first public interest lawsuit. About 10-12 years ago a potato processing plant made it clear that they preferred irrigated potatoes to dryland potatoes. As a result, the state engineer granted about 10,000 acres of irrigation in that area. Those 10,000 a,cres have lowered the water levels a little bit in the aquifer. Lake Isabell, which has cabins around it, is very low as well, and so the lake cabin owners have hired an attorney and contend those 10,000 acres are having a very negative impact on Lake Isabell and that the state engineer didn't adequately take the public intl~rest into account when he issued the permits. It's going to be an interesting case if it does go to court. We did win the lawsuit on Devils Lake about two weeks ago. The providence of Manitoba sued our State Health Department. We will see if they appeal that. 9