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Slide 1
December 9, 2014
Slide 2
WHY?
Slide 3
1 st Call: September 2003 2 nd Call: January 13, 2011 Hearing:
May 1, 2013 29 MONTHS
Slide 4
Call: Spring 2005 Hearing: November 28, 2007 32 MONTHS
Slide 5
Call: January 14, 2005 Hearing: January 18, 2008 36 MONTHS
Slide 6
Slide 7
Slide 8
Disposition of Claims State Law Based Claims Federal Reserved
Water Rights TOTAL STATE AND FEDERAL Total Active Water Rights
Decreed 131,6875,583136,687 Total Claims Decreed Disallowed
13,7707,43921,209 TOTAL DECREED CLAIMS 144,87413,022157,896
Slide 9
Sustainability of aquifers Aquifer Recharge Water use
optimization projects Water storage Water measurement and
monitoring Water distribution through water districts
Slide 10
11,000 claims expected to be filled First, preliminary
Directors Report issued Only two significant federal reserved water
right claim filings are expected St. Joe Wild and Scenic River
Claims Coeur dAlene Reservation Claims Expected Completion in
FY2018 Palouse Basin Adjudication expected commenced in FY2016
Slide 11
PROSCONS Timeliness Transfer of IDWR Authority to Court System
What Authority? Administrative v. Judicial Conflict Management Due
Process
Slide 12
PROSCONS Lack of IDWR Resources IDWR has not said this
Added Expense Forum Shopping Exactly Proposal was allowed a
choice Unintended Consequences Idahos Water court has been
carefully crafted over many decades... ???? Upset the Apple
Cart
Slide 15
Supreme Courts Current Prespective
Slide 16
While recognizing the Directors authority to evaluate the issue
of beneficial use in the administration context, we stated: While
there is no question that some information is relevant and
necessary to the Directors determination of how best to respond to
a delivery call, the burden is not on the senior water rights
holder to re-prove an adjudicated right. The presumption under
Idaho law is that the senior is entitled to his decreed water
right, but there certainly may be some port-adjudication factors
which are relevant to determination of how much water is actually
needed. The Rules may not be applied in such a way as to force the
senior to demonstrate an entitlement to the water in the first
place; that is presumed by the filing of a petition containing
information about the decreed right. The Rules do give the Director
the tools by which to determine how the various ground and surface
water sources are interconnected, and how, when, where and to what
extend the diversion and use of water from one source impacts
[others]. Once the initial determination is made that material
injury is occurring or will occur, the junior then bears the burden
of proving that the call would be futile[,] or to challenge, in
some other constitutionally permissible way, the seniors call.
Slide 17
Id. at 878, 154 P.3d at 449. Thus any application of a delivery
call requires application of established evidentiary standards,
legal presumptions, and burdens of proof.
Slide 18
Based on the foregoing, we conclude as follows: 1. The Director
may develop and implement a pre-season management plan for
allocation of water resources that employs a baseline methodology,
which methodology must comport in all respects with the
requirements of Idahos prior appropriation doctrine, be made
available in advance of the applicable irrigation season, and be
promptly updated to take into account changing conditions. Idaho
Supreme Court Opinion No. 134 (2013)
Slide 19
2. A senior right holder may initiate a delivery call based on
allegations that specified provisions of the management plan will
cause it material injury. The baseline serves as the focal point of
such delivery call. The party making the call shall specify the
respects in which the management plan results in injury to the
party. While factual evidence supporting the plan may be considered
along with other evidence in making a determination with regard to
the call, the plan by itself shall have no determinative role.
Idaho Supreme Court Opinion No. 134 (2013)
Slide 20
3. Junior right holders affected by the delivery call may
respond thereto, and shall bear the burden of proving by clear and
convincing evidence that the call would be futile or is otherwise
unfounded. A determination of the call shall be made by the
Director in a timely and expeditious manner, based on the evidence
in the record and the applicable presumptions and burdens of proof.
Idaho Supreme Court Opinion No. 134 (2013)
Slide 21
Continue as we are Taking? Water Court Hearing Officer Corps
Statewide solution Spread expense Leadership
Slide 22
(3) Unless the right to a hearing before the director or the
water resource board is otherwise provided by statute, any person
aggrieved by any action or failure to act of the director,
including, but not limited to, any decision, determination, order
or other action, including action upon any application for a
permit, license, certificate, approval, registration, or similar
form of permission required by law to be issued by the director,
and any action or failure to act by the director or a water master
in the distribution of water rights within an organized water
district, Proposed legislation
Slide 23
(Continued) who is aggrieved thereby the action of the
director, and who has not previously been afforded an opportunity
for hearing on the matter shall be entitled to a hearing before
either the director or the Snake River Basin Adjudication (SRBA)
district court of the fifth judicial district of the state of Idaho
to contest the action. The person shall file with the director, and
the SRBA district court if the person seeks a hearing before the
court, within fifteen (15) days after receipt of written notice of
the action issued by the director, or receipt of actual notice, a
written petition stating the grounds for contesting the action by
the director and requesting a hearing. Proposed legislation
Slide 24
(Continued) The director shall give notice of the petition as
is necessary to provide other affected persons an opportunity to
participate in the proceeding. The hearing shall be held and
conducted in accordance with the provisions of subsections (1) and
(2) of this section. Judicial review of any final order of the
director issued following the hearing shall be had pursuant to
subsection (4) of this section. Appeal of any final decision or
order of the SRBA district court shall be had pursuant to
subsection (6) of this section. Proposed legislation