36-02551 & 36-07694 in the Name of Rangen, Inc. v. Idaho Dep't of Water Res. (In re Fourth Mitigation Plan Filed By the Idaho Ground Water Appropriators for the Distribution of Water to Water Right Nos)
| Decision Date | 23 March 2016 |
| Docket Number | Nos. 42775,42836.,s. 42775 |
| Citation | 160 Idaho 119,369 P.3d 897 |
| Parties | In the Matter of the fourth mitigation plan filed by the IDAHO GROUND WATER appropriators for the distribution of water to water right nos. 36–02551 & 36–07694 in the name of Rangen, Inc., IDWR Docket no. CM-MP-2014-006, " Magic Springs Project". Rangen, Inc., Petitioner–Appellant, v. IDAHO DEPARTMENT OF WATER Resources, and Gary Spackman, in his capacity as Director of the Idaho Department of Water Resources, Respondents–Respondents, and Idaho Ground Water Appropriators, Inc., Intervenor–Respondent. |
| Court | Idaho Supreme Court |
Brody Law Office, PLLC, Rupert, Haemmerle Law Office, PLLC, Hailey, and May, Browning and May, PLLC, Boise, for respondent and appellant Rangen, Inc. Justin J. May argued.
Racine Olson Nye Budge & Bailey, Chartered, Pocatello, for appellant and respondent Idaho Ground Water Appropriators, Inc. Thomas J. Budge argued.
White & Jankowski LLP, Denver, and A. Dean Tranmer, City of Pocatello, Pocatello, for appellant and respondent City of Pocatello. Sarah Klahn argued.
Honorable Lawrence G. Wasden, Idaho Attorney General, Boise, for respondents Idaho Department of Water Resources and Gary Spackman. Garrick L. Baxter argued.
Rigby, Andrus & Rigby, Rexburg, for respondent Fremont–Madison Irrigation District. Jerry R. Rigby argued.
Barker Rosholt & Simpson, LLP, Twin Falls, for respondents A & B Irrigation District, Burley Irrigation District, Milner Irrigation District, North Side Canal Company and Twin Falls Canal Company.
Fletcher Law Office, Burley, for respondents American Falls Reservoir District # 2 and Minidoka Irrigation District. W. Kent Fletcher argued.
The Idaho Ground Water Appropriators, Inc. ("IGWA") and the City of Pocatello filed separate appeals from a district court order, affirming in part and vacating in part an order issued by the Director of the Idaho Department of Water Resources ("IDWR") that curtailed junior ground water pumping in the Eastern Snake Plains Aquifer ("ESPA"). On December 13, 2011, Rangen, Inc. petitioned for a delivery call, alleging that junior ground water pumping in the ESPA was materially injuring its water rights sourced from the Martin–Curren Tunnel. The Director held an evidentiary hearing from May 1 to May 16, 2013. As relevant to these appeals, the Director concluded that the Martin–Curren Tunnel was a surface water source and, therefore, not subject to the Ground Water Act. Additionally, the Director found that ground water pumping in the ESPA was materially injuring Rangen's water rights and that a curtailment order was appropriate. However, the Director concluded that the benefits of curtailment diminished significantly if the order extended to pumping east of a volcanic rift zone in the ESPA known as the Great Rift. The Director issued a curtailment order on January 24, 2014, mandating that ground water users located west of the Great Rift, with water rights junior to Rangen's, refrain from diverting water from the ESPA.
Rangen and IGWA petitioned for judicial review of the Director's decision. The district court upheld the Director's decision in significant part but vacated the Director's application of a trim line at the Great Rift, concluding that the Director did not have a legal basis to apply a trim line in this case. Rangen, IGWA, and Pocatello each timely appealed. Pocatello appeals the district court's order vacating the Director's application of the Great Rift trim line, alleging that the trim line should be upheld. IGWA appeals the district court's affirmance of the Director's ruling that Rangen's water source should be administered as surface water. Additionally, IGWA alleges that the district court should have vacated the Director's application of the Great Rift trim line on the basis that the curtailment area was overly broad and ordered the Director to set a smaller curtailment area. IGWA also argues that the Director erred by not providing a reasoned statement to support the curtailment order.
Rangen owns and operates a fish research and propagation facility at the head of Billingsley Creek in the Thousand Springs area near Hagerman, Idaho. Rangen holds five water rights for the Rangen facility that were decreed through the Snake River Basin Adjudication ("SRBA"). Rangen's petition for delivery call alleged injury only to water right nos. 36–02551 and 36–07694. Water right no. 36–02551 authorizes a diversion of 48.54 cfs for fish propagation and has a priority date of July, 13, 1962. Water right no. 36–07694 authorizes a diversion of 26 cfs for fish propagation and has a priority date of April 12, 1977. The source element for water rights nos. 36–02551 and 36–07694 is the Martin–Curren Tunnel, tributary Billingsley Creek. The Martin–Curren Tunnel, also commonly referred to as the Curren Tunnel, is a large, excavated conduit constructed high on the canyon rim that extends 300 feet into the canyon wall. Water running through the Curren Tunnel is fed by the ESPA.
The ESPA is the aquifer underlying the Eastern Snake Plain. The ESPA is about 170 miles long and 60 miles wide, and is defined as an area having a common ground water supply. IDAPA 37.03.11.050. The ground water in the ESPA is hydraulically connected to the Snake River and tributary springs, including the Thousand Springs area where the Curren Tunnel is located. The ESPA is highly productive and is composed predominantly of fractured quaternary basalt, which is generally characterized by high hydraulic conductivity. The amount of water that discharges from the aquifer to hydraulically connected surface water sources is largely dependent on ground water elevations and hydraulic conductance. From October 1980 through September 2008, average annual discharge from the ESPA exceeded average annual recharge by 270,000 acre feet, which resulted in declining aquifer water levels and declining discharge to the Snake River and tributary springs. Rangen claims that the discharge from the Curren Tunnel has declined significantly due to ground water pumping in the ESPA. Rangen brought this delivery call seeking to have junior priority ground water pumping in the ESPA curtailed in order to increase discharge to the Curren Tunnel.
The Enhanced Snake Plain Aquifer Model ("ESPAM") is a calibrated regional ground water model representing the ESPA, meant to simulate the effects of ground water pumping from the ESPA on the Snake River and tributary springs. ESPAM 1.0 was developed by IDWR and the Eastern Snake Hydrologic Modeling Committee ("ESHMC"). Rangen had filed its first petition for delivery call in September 2003. A curtailment order was issued in February 2004, but it was withdrawn after ESPAM version 1.0 was released. Based on projections from ESPAM 1.0, former Director Karl Dreher found that Rangen's delivery call was futile because curtailment of junior ground water rights in the ESPA would not result in a meaningful increase in the quantity of water discharging near the Rangen Facility. Following Rangen's prior delivery call, ESPAM 1.0 was superseded by ESPAM 1.1, which was used in the delivery call proceedings instituted by Clear Springs Foods and Blue Lakes Trout Farm, Inc. to estimate the effects of ground water pumping on springs in the Thousand Springs area.
ESPAM 1.0 and 1.1 were able to predict water flows only within a particular spring reach, rather than a particular source. In delivery calls that used these versions of ESPAM, the present and former Directors had set a "trim line" to limit the area of curtailment to areas in which at least 10% of the water accrued from curtailment would accrue to the spring reach where the caller's point of diversion was located. Much of the water accumulated to the particular spring reach would accrue at locations other than the caller's point of diversion. For example, in the Clear Springs Foods delivery call, the trim line limited curtailment to areas in which at least 10% of the water accrued from curtailment would accrue to the Buhl to Thousand Springs reach. It was estimated that Clear Springs Foods would receive 6.9% percent of the benefit accruing to that reach. Therefore, with the application of the trim line, Clear Springs Foods was predicted to receive 0.69% of the water accrued as a result of the curtailment. Similarly, in the Blue Lakes delivery call, the Director limited the curtailment order to areas where at least 10% of the water accrued from curtailment would accrue to the Devil's Washbowl to Buhl reach. It was predicted that Blue Lakes Trout Farm would receive 20% of the benefit accruing to that reach. Therefore, with the application of the trim line, Blue Lakes was predicted to receive 2% of the water accrued as a result of the curtailment.
In 2005, ESHMC and IDWR began developing ESPAM 2.0. This version was more refined and was calibrated using monthly water levels and flow targets, including measured spring discharges within fourteen specific model grid cells. The springs captured and used by Rangen were measured throughout the model calibration period and the monthly spring discharge in the model cell where spring flows are captured by Rangen was a target for model calibration. This revision to ESPAM was in progress in 2011 when Rangen filed its instant petition, and the parties agreed to wait until the model was updated before going to hearing.
During the development of ESPAM 2.0 it was discovered that the values used to measure the discharge for Thousand Springs for calibration of ESPAM 1.0 were inaccurate, and the values were corrected in the calibration targets for ESPAM 2.0. These corrections resulted in a significant increase in spring discharge targets in the Billingsley Creek Area, and, based on this new information, Rangen challenged the previous determination of a...
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