SUN VALLEY, Idaho—Reservoir fill and refill and associated storage rights have always been issues in the massive Snake River Basin Adjudication of more than 158,000 water rights, which stretched 27 years beginning in 1987.
An resolution for Water District #1—which includes the Snake River Plain from Twin Falls to Wyoming—came earlier this year with a negotiated stipulation, according to water law attorneys speaking at the Idaho Water Users Association Water Law Conference last week.
The stipulation encompasses two critical points—certain reservoirs are allowed to refill to replace water released for flood control, and all reservoirs will be allowed to refill when all other rights are being filled and this refill will be allocated equitably among all parties with storage rights, said Jerry Rigby, a Rexburg attorney representing several junior water-right holders in the issue.
The issue evolved with the increasing demand on water and was complicated by undefined or undecided elements of storage water rights and historical management that differed from the water right decree or license, said Burley attorney Kent Fletcher, who represents irrigation districts with both senior and junior storage rights.
Major questions included whether reservoir storage rights are filling when water is being released for flood control, whether water can be stored if a reservoir is determined to be “full” on paper, whether reservoirs can be refilled, and if so, would they refill in priority or be subordinate to all other rights, he said.
The state’s position was that all water entering a reservoir is filling the reservoir until it is “full” on paper, flood control releases count against fill and refill is subordinate to all other rights concerned his clients, he said.
The SRBA Court determined that a remark on the water rights was not required to address when a storage right can refill when vacated for flood control but did not address the question of when a right is initially filled, he said.
“Our argument was that it never filled in the first place,” he said, adding that a “paper fill” is not a physical fill.
The Idaho Supreme Court vacated the SRBA decision and left the matter to the director of the Idaho Department of Water Resources. The director initiated the contested cases to address how water is counted or credited toward the fill of water rights, he said.
Junior right holders wanted to maximize refill but their main concern was that refill shouldn’t be in priority, which would constitute an illegal enlargement of senior rights to the detriment of junior rights, Rigby said.
In certain years, it could result in junior refill rights never coming on, make it impossible to use other water rights, such as those for recharge, or obtain new rights, he said.
Negotiations concerning fill and refill were renewed in Water District 1 and a beneficial settlement was achieved, the lawyers said.
Two new water rights were established for refill water, Rigby said.
The settlement firms up the right to physically fill a reservoir even if the accounting shows it is full on paper and establishes the right to refill following a flood-control release with a priority that protects all existing rights, Fletcher said.
The settlement was agreed upon by all storage space holders in Water District 1, the state, Idaho Department of Water Resources and Bureau of Reclamation—which is still awaiting permission to sign the stipulation — and avoided an eventual determination by the SRBA Court and the director, Rigby said.
Reservoir refill settlement in Water District #1
Refill Right 1
• The right to store water but it is subordinated to all existing and future uses
Refill Right 2
• Can refill up to a settled amount of space evacuated for flood control
• Specified period of use
• Stated priority is 1965, subordinated to all existing non-enlargement rights prior to May 1, 2014
• Bureau of Reclamation has the right to start and stop accrual of water pursuant to the refill right in Palisades and Ririe reservoirs, allowing for other uses when not being accrued
• Can’t be used as the basis for a water call or defense to call
Source: Water law attorneys Jerry Rigby and Kent Fletcher, June 2015