Special session could be called to deal with flood control issue

By Sean Ellis

Idaho Farm Bureau Federation

BOISE – Some lawmakers are pushing for a special legislative session to pass a proposed bill that some people believe could facilitate a settlement that could end a court battle between Treasure Valley water users and the state over how flood control releases from Boise River reservoirs should be accounted for.

Treasure Valley irrigators say that water released in the winter to prevent flooding should not be counted against their reservoir storage rights.

The Idaho Department of Water Resources says it should and the two sides have fought over the issue for several years.

The two parties are involved in discussions about a possible agreement that would settle the dispute, said Roger Batt, executive director of the Treasure Valley Water Users Association, which is representing irrigators on this issue and formed as a result of it.

Some people believe a change in state statute would be required to facilitate a settlement agreement, Batt said.

That would require a special legislative session, which is being pushed by some lawmakers, including Rep. Scott Bedke, a Republican rancher from Oakley and the speaker of the Idaho House of Representatives.

A special legislative session must be called by the governor, who would also narrowly define what matter can be addressed during the session, which would probably last a single day.

The narrow scope of a special session means “it can’t turn into a free-for-all,” Bedke said. “It will be anticlimactic.”

Jon Hanian, a spokesman for Gov. Butch Otter, said the governor has been involved in discussions about the potential agreement between the parties and a special session is a possibility.

However, he added, “those conversations are still happening and it would be premature to speculate at this point” on whether Otter will call a special session.

IDWR Director Gary Spackman said there have been a lot of discussions about a possible settlement and the proposed special legislation is not the only alternative.

“I’m hopeful and I think it’s realistic that there could be a settlement but what the terms of that settlement are, are not fixed right now,” he said. “I think it’s premature for people to be saying this is settled except for the legislation that needs to be enacted. There are a number of issues still out there that need to be resolved.”

About 350,000 irrigated acres in the Treasure Valley depend on water stored in the Boise River system’s three reservoirs.

Treasure Valley irrigators believe the state is basically stealing their senior water rights by counting flood control releases against their rights to water stored in the reservoirs.

Because flood control releases occur during a time when the water isn’t available to farmers and other irrigators, the water right holder never got a chance to put it to beneficial use, TVWUA argues.

The group claims that the way the state wants to account for flood control releases in water district 63, the Boise valley basin, could have dire consequences for agriculture in the region.

TVWUA says that during high water years when a lot of water has to be released to prevent flooding, that could result in water for irrigators being shut off during the summer months, before crops are harvested.

IDWR argues it is trying to protect the reservoir water storage rights of all water right holders.

The water department claims its accounting of flood control releases in water district 63, which spans from Boise to Parma, is not a new practice but dates to 1986, a claim that irrigators dispute and challenged in court.

Judge Eric Wildman, presiding judge of the Snake River Basin Adjudication Court, in 2016 decided in favor of the state, ruling that water released for flood control purposes can be counted against storage water rights.

In his ruling, Wildman wrote that the arguments made by irrigators “would effectively transfer water right distribution in the basin from the (IDWR) director to the federal government….”

Doing that “would cripple the director’s ability to effectively distribute water under our system of water rights administration,” Wilder wrote.

That ruling was appealed to the Idaho Supreme Court, which is expected to take up the issue beginning June 20.

Sen. Jim Rice, R-Caldwell, said a settlement would dispose of the need for the court appeal, “but we need to get the logistics all done. We need to make sure the legislation piece is right and we need to get it passed.”

Rice, chairman of the Senate Agricultural Affairs Committee, said resolving the issue is of the highest importance and “if it takes a special session with a special piece of legislation to make this agreement happen, then we’ll do it. There’s nothing more important for making our economy work than water.”

He said Bedke was instrumental in getting the parties to the table and pushing for an agreement.

“He deserves a lot of credit for his leadership in pushing to get this resolved,” Rice said.

Bedke said the proposed legislation that legislators would be asked to approve during a special session “simply gives the senior water right holders the assurance that during years when there is ample water, they will get their full appropriation.”

He said resolving the issue “is absolutely critical to the water users in the Treasure Valley.”

The issue and proposed legislation will be discussed June 6 during a meeting in the Capitol building in Boise. The meeting in the Lincoln Auditorium will begin at 1:30 p.m.