New Developments for Conjunctive Management in Idaho: Why Our Expanding Understanding of Science Should Expand How We Address the Doctrine Against Waste in Idaho Water Right Transfers
University of Idaho, College of Law
Idaho, like all western States, is facing an impending water crisis due to a combination of unprecedented growth and extended drought. This is particularly true in southern Idaho?s Snake River Basin, where a booming population has put particular stress on both the ground and surface water supply. As a result, the need for users to become more efficient with their water and water rights has become increasingly necessary. By Idaho statute, the user is allowed to keep any water that has been saved as a result of an increase in efficiency, allowing such a user to transfer that additional water to others who may need it. There are two competing legal doctrines at issue in such a situation. A water right does not include the right to waste water; however, a user is also not allowed to injure any other user in the process of completing a transfer. Before groundwater became a major source in Idaho, determining injury was a rather straightforward process. However, proving injury for groundwater is much more complicated because of the complexities of the substrate. This complexity seems to have caused the no-injury rule to be pushed to the backburner when transfers are requested. However, the no-injury rule cannot be ignored. It is part of the foundation of Idaho water law and serves the critical purpose of insuring that a single water user does not control the destiny of junior users. The purpose of this presentation is to argue that Idaho should adhere to the no-injury rule when dealing with issues of water transfer. It will go on to discuss how before this question of fact can be answered, a method of determination must be implemented. Namely, the Snake River Plain Aquifer Model must be modified to be able to determine the all-important question: will my transfer affect other users on a local level? Finally, this presentation will discuss how the state of Idaho is attempting to work around the complexities caused by groundwater and the no-injury rule with new incentives created through the state of Idaho?s Comprehensive Aquifer Management Plan.