Draft Protocol for Determining Reasonable In-Season Demand and Reasonable Carryover

1. Draft Protocol for Determining Reasonable In-Season Demand and Reasonable Carryover “Overview and Approach” Dave Tuthill Director, IDWR May 4, 2009

2. Discussion Items • Projected 2009 surface runoff computations, based on the April 1 forecast • Draft Protocol for determining reasonable carryover and reasonable in-season demand

3. 2009 Surface Water Coalition Supply Predictions Based on April 1, 2009 Forecast

4. Process to Develop the Protocol • Sharing of Draft Protocol Today • Materials from Presentation On Website • Receipt of Recommended By May 26 Changes • Issuance of Order Early June

5. Summary History of this Matter • Surface Water Coalition 1/14/2005 Delivery Call • Director’s Order 5/2/2005 • Hearing Commenced 1/16/2008 • Hearing Officer’s Opinion 4/29/2008 • Hearing Officer’s Responses 6/10/2008 to Objections • Director’s Final Order 9/5/2008

6. Today’s Situation • SWC Order Issued on September 5, 2008 • Order stated “Because of the need for ongoing administration, the Director will issue a separate, final order before the end of 2008 detailing his approach for predicting material injury to reasonable in-season demand and reasonable carryover for the 2009 irrigation season. An opportunity for hearing on the order will be provided.” Order at 6.

7. e. Non-irrigated acres should not be considered in determining the irrigation supply necessary for SWC members. IGWA has established that at least 6,600 acres claimed by TFCC in its district are not irrigated. Similar information was submitted concerning the Minidoka Irrigation District, indicating that the claimed acreage of 75,152 includes 5,008 acres not irrigated and Burley Irrigation District has some 2,907 acres of the 47,622 acres claimed not irrigated. These amounts may, of course, change as acreage is removed from irrigation or possibly added back. Hearing Officer Determinations Recommended Order at 53

8. Hearing Officer Determinations f. Calculation of a water budget should be based on acres, not shares. The allocation of water within a district is a matter of internal management, but the calculation of a water budget in determining if there will be curtailment should be based on acres not shares. Recommended Order at 53

9. Acreage Adjustments

10. Source Citations • Proof Report of Adjudication Recommendation for water rights 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-14 – Total acres for each company; http://www.idwr.idaho.gov/apps/ExtSearch/ SearchWRAJ.asp; Idaho Dept. of Water Resources. • 2) Surface Water Irrigated Area (in Acres): Enclosure D. http://www.idwr.idaho.gov/ Calls/Surface_Water_Coalition_Call/Surface_Water; Idaho Dept. of Water Resources. • 3) Assessment of Lands Served: American Falls Reservoir District #2; Feb. 26, 2009; Table 5; Idaho Dept. Water Resources. • 4) Assessment of Lands Served: Burley Irrigation District; Dec. 2008; Table 5; Idaho Dept. Water Resources. • 5) Preliminary Findings: 60,194 acres reported in Enclosure D (see source citation 2) plus 14,979.22 acres additional acres identified by Minidoka Irr. Dist.

11. There has been some confusion caused by the Director’s perceived limitation on carryover storage. The Director did not rewrite the contracts the irrigation districts have with BOR or interfere with the right to carryover storage water when available. The limitation only applies to an amount to be obtained from curtailment or mitigation water from ground water users. If the irrigation district’s needs for carryover can be met without curtailment, there will be zero carryover storage provided by curtailment or replacement. There is still a right to as much carryover as water supplies will provide within the limits of the contract. Recommended Order at 58 (emphasis added). Hearing Officer Determinations

12. Hearing Officer Determinations • The climate is sometimes generous and sometimes stingy with precipitation, neither of which under the current state of science is predictable for anything more than relatively short terms. Anticipating more than the next season of need is closer to faith than science. Ordering curtailment to meet storage needs beyond the next year is almost certain to require ground water pumpers to give up valuable property rights or incur substantial financial obligations when no need would develop enough times to warrant such action. . . . . As indicated, requiring curtailment to reach beyond the next irrigation season involves too many variables and too great a likelihood of irrigation water being lost to irrigation use to be acceptable within the standards implied in AFRD#2. Recommended Order at 62-63 (emphasis added).

13. Guidance from Order • As found by the Hearing Officer, the reservoir system fills two-thirds of the time, and storage water has been historically available for rental or lease even during times of drought. Recommended Order at 6, 15. To order reasonable carryover the year prior to the season of need would result in waste of the State’s water resources. Mountain Home Irrigation Dist. v. Duffy, 79 Idaho 435, 422, 319 P.2d 965, 968 (1957); Stickney v. Hanrahan, 7 Idaho 424, 433, 63 P. 189, 191 (1900).It is appropriate for the Director to notify the parties in the fall prior to the upcoming irrigation season of predicted carryover shortfalls for planning purposes. But it is not appropriate to require junior ground water users to provide predicted shortfalls until the spring when the water can be put to beneficial use during the season of need: “As indicated, requiring curtailment to reach beyond the next irrigation season involves too many variables and too great a likelihood of irrigation water being lost to irrigation use to be acceptable within the standards implied in AFRD#2.” Recommended Order at 62-63.Order at 11.

14. Pieces of the Solution • Background Dave Tuthill • Determining Average Steve Burrell Irrigation Need • Reasonable In- Mat Weaver Season Demand and Demand Shortfall • Adjustment of Supply Liz Cresto • Reasonable Carryover Steve Burrell • General Discussion All

15. Summary • We invite your active participation in the presentations • We are seeking the best solution and are open to input • Please provide any recommended changes by May 26th