July 28, 2008

Trout Farm Water Call Headed to District Court: Farms to Appeal Final Order Issued July 11

By Nate Poppino, The Times-News, Twin Falls, Idaho

Jul. 28--The Idaho Department of Water Resources is headed for the courtroom.

One of three water delivery calls set in front of the department, made by two Magic Valley trout farms, will be appealed to district court following IDWR Director Dave Tuthill's July 11 final order on the call.

The move changes the discussion from an administrative setting to one much less likely to be influenced by politics, Randy MacMillan, vice president of research at Clear Springs Foods, said Friday -- the final day parties in the call could petition Tuthill to reconsider his decision.

"We do think politics has played into some of the decisions that have been made," MacMillan said, adding that the farms have yet to file the appeal.

Whether or not MacMillan is right, an appeal to the court signifies a new step in the long-running case. In spring 2005, both Clear Springs and Blue Lakes Trout Farm filed letters with IDWR seeking water they said belonged to them but had been used up by groundwater pumpers with junior water rights. For various reasons, a hearing on the matter wasn't held until November 2007, and the final decision was delayed to include the planned mitigation efforts for both.

"It was important for the Thousand Springs order to include the road ahead for both Blue Lakes and Snake River Farms (Clear Springs' farm)," Tuthill said Friday.

The July 11 order provides for mitigation for two of four water rights belonging to the farms. Tuthill cites insufficient evidence for the remaining two to be included.

It also specifies the remedies currently being prepared by pumpers. The groundwater users have already provided 10 cubic feet per second to Blue Lakes Trout Farm this year through the Pristine Springs agreement, Tuthill said. Up to 3.59 cfs could come from a spring leased from the Idaho Department of Fish and Game by the North Side and Magic Valley Ground Water Districts to satisfy Clear Springs' shortage.

The latter arrangement would be a long-term solution, Tuthill said, and is being advertised for comment and a possible hearing. Pumpers would have had to shut down wells on between 50,000 and 60,000 acres of land to achieve the same effect, said Lynn Tominaga, executive director of the Idaho Ground Water Appropriators.

Former Idaho Chief Justice Gerald Schroeder, acting as hearing officer, issued his own recommendations in the case in January. In his order, Tuthill frequently cites findings by both Schroeder and former IDWR Director Karl Dreher. But the main problem with the order, MacMillan said, is that the farms feel it reverses many of Schroeder's recommendations.

"We take exception to that," MacMillan said, adding that he expects the matter to work its way to the Idaho Supreme Court.

The trout farms, pumpers and IDWR officials all previously said they expected the issue to end up in court. And even Tuthill agreed that the move represents progress in the case.

"I understand if the parties want to move this to the next step," Tuthill said. "They know the assessment that's been made by our agency."

But Tominaga may have offered the most interesting assessment of the situation. After sharing his satisfaction with Tuthill's order, Tominaga reflected on the eight years he's been in the job and said he thinks everyone is just getting tired of the ongoing cases.

"People have come and gone," he said. "But those of us that are still here, we're getting tired of having to always do battle."

Nate Poppino may be reached at 208-735-3237 or [email protected]


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