Idaho water law is a cut-throat business. It allows water users that were first in time to be first in right. Essentially, if you got there first, your water use trumps everyone and thing-think fish, habitat, recreation-else that came after you.
Those who didn’t get to the trough early enough end up with newer, or junior water rights. In times of shortage, junior water right holders may be “called on” by senior water right holders. Meaning, the juniors don’t get to use their water right until the seniors’ rights are met.
The “calling on” scenario does have some work-arounds, one of which is creating a mitigation plan. This allows a junior to use his water right, but only if he mitigates his use. Mitigation takes many forms and can be a great idea, but ICL would proffer that it’s only appropriate if it mitigates a water right holder’s actual water use.
Wood River and Elsewhere
Currently, the Wood River Valley is faced with a proposal for a new mitigation strategy. And don’t stop reading here just because you don’t live in the Wood River-this is likely just the first of many similar proposals to come down the line all over the drier areas of our fair state.
A private company proposes to recharge areas of the aquifer in the Wood River, quantify the amount of water recharged, create recharge credits equal to the amount of water recharged, and then sell those credits to juniors for mitigation. VoilÃ¡! Everyone gets to use their water right!
A Shell Game
The work-around sounds like a winner. However, many of the juniors who will be seeking mitigation are located upstream from where the recharge is set to occur. Which brings me back to the point about mitigating your actual water use. How can someone’s upstream water use be mitigated by recharge done 10 or 20 miles downriver? What about the consequences of water withdrawal in that gap? There are myriad potential impacts ranging from fish habitat to water treatment and water quality.
The Wood River proposal may sound like a solution, but it’s mitigation on paper more than it’s mitigation in reality. It’s really just a shell game.
Not to mention that a private company is turning a profit by coordinating the recharge. Sure, we all pay for services every day. It’s part of what makes our world go round. But is it appropriate to broker water, a public trust resource, in this way?
We’d posit that the local communities are in a better position to speak to how their water should be allocated than a third party with a monetary interest. Doing so would cut out the middle man and the middle man’s profit, and would better consider the instream values of rivers that make Idaho’s iconic rivers one of the things we esteem most about living here.
For more on this topic, check out our recent guest opinion in the Idaho Mountain Express.