Pumpers ask court to reconsider water ruling


Capital Press

Posted 4/19/2011

Idaho - Ground water users want the Idaho Supreme Court to rehear a recent opinion that affirmed the seniority of water rights held by two trout farms over junior ground water pumpers.

In the unanimous opinion rendered March 17, the state high court sided with Clear Springs Foods Inc. and Blue Lakes Trout Co.

The state high court rejected most of the arguments made by ground water users, including their assertion that they should not be curtailed because of the greater economic benefit that their activities provide.

The court also rejected the ground water users' argument that the fish farms are precluded from making a water delivery call as long as minimum flows are maintained at Swan Falls Dam.

Idaho Groundwater Appropriator's Inc., North Snake Ground Water District and the Magic Valley Ground Water District filed an official request for a rehearing of the case on April 7.

Attorneys for the ground water users said in a court filing that they want the court to reconsider certain interpretations of the state's Ground Water Act. They also want the court to reconsider its conclusion that there is substantial evidence to support a finding by the Idaho Department of Water Resources that ground water pumping has caused "material injury" to the two trout farms.

"The state supreme court completely ignored anything about the Ground Water Act," said Lynn Tominaga, executive director of Idaho Irrigation Pumpers Association.

However, if the state Supreme Court does agree to rehear the case, there's no guarantee that ground water users will like the result. They run the risk that another decision could be more unfavorable to them than the original, Tominaga said.

Many of the issues raised by the case could become moot if ground water users purchase the Blue Lakes Trout Co. as proposed.

The ground water association has signed an earnest money agreement to buy the fish farm, including its water rights.

The trout farm is believed to be worth between $20 million and $40 million. Appraisers are still trying to determine a final purchase price, Tominaga said.

Some of the water rights involved in the purchase would be used as mitigation for Clear Springs Foods.

"This would take care of the water delivery calls if we can get it done," Tominaga said of the proposed purchase.

Members of the ground water districts have not approved the purchase yet, and it could take a year before a deal is finalized, Tominaga said.