A & B Irrigation District v. Idaho Conservation League

958 P.2d 568, 131 Idaho 411, 1998 Ida. LEXIS 50

Opinions

McDEVITT, Justice.

Footnotes

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In the Snake River Basin Adjudication (SRBA), the Director of the Idaho Department of Water Resources (IDWR or Director) has the duty of preparing a Director’s Report on the Snake River water system. I.C. § 42-1411 (1996). On November 28, 1995, IDWR submitted the Amended Director’s Report for Basin 57, which is one of three Basins that have been designated as test Basins. The issue raised in this case is whether each of the test Basins, (Director’s Reporting Areas 1 (Basin 34), 2 (Basin 36), and 3 (Basin 57)), should be subject to general provisions regarding firefighting purposes, irrigation use, and conjunctive management.¹

The SRBA district court found that the general provisions were not necessary for the definition of the rights or for the efficient administration of the water rights and ruled that the general provisions would not be included in the decrees issued in the SRBA. This Court granted appellants’ motion for permission to appeal the SRBA district court’s decision pursuant to Idaho Appellate Rule 12.

I.

FACTS AND PRIOR PROCEEDINGS

On September 5, 1995, A & B Irrigation District, among other parties (collectively referred to as appellants), filed a motion to designate basin-wide issue number 5 with the SRBA district court. Appellants requested the SRBA district court resolve all objections to the inclusion of general provisions and other statements in the Amended Director’s Reports for Basins 34, 36, and 57.

On December 19, 1995, a hearing on the designation of basin-wide issue number 5 was held. On December 21, 1995, the SRBA district court entered an order designating basin-wide issue number 5. The SRBA district court described basin-wide issue number 5 as whether the general provisions were necessary for the definition of the rights or for the efficient administration of the water rights. The SRBA district court considered the general provisions 3, 5, and 6 in Basin 34, the general provisions 1,2, and 3 in Basin 36, and the general provisions in 1, 3, and 4 in Basin 57.² The SRBA district court found that general provision 2, involving Reynolds Creek, was particularly unique to Basin 57 and referred general provision 2 to a Special Master.³

On March 12, 1996, the SRBA district court heard oral argument regarding the issue of whether the general provisions were legally necessary for the definition of the rights or for the efficient administration of the water rights. The SRBA district court bifurcated the proceedings, over the objection of the parties, considering first whether the general provisions were legally necessary without hearing factual evidence supporting the inclusion or exclusion of the general provisions.

The SRBA district court entered a memorandum decision and order regarding basin-wide issue number 5 on April 26, 1996. The SRBA district court ruled that the general provisions 3, 5, and 6 for Basin 34, the general provisions 1, 2, and 3 for Basin 36, and the general provisions 1, 3, and 4 for Basin 57, “shall not be decreed in the SRBA and they are, therefore, struck from the Director’s Reports and are not subject to any further court action in the test Basins.” This Court granted appellants’ motions for permission to appeal and appellants filed notices of appeal.

II.

DEFINITION OF A GENERAL PROVISION

A general provision is not defined by the SRBA code. The SRBA district court interpreted I.C. § 42-1411(3) as requiring a general provision to directly apply to every water right. The SRBA district court focused upon the language in I.C. § 42-1411(3) that states “[t]he director may include such general provisions in the director’s report, as the director deems appropriate and proper, to define and to administer all water rights.”

A general provision is a provision that is included in a water right decree regarding the administration of water rights that applies generally to water rights, is not an element of the water right, or is necessary for the efficient administration of the water rights decreed. Administering a water right is not a static business. While some administrative provisions would clearly apply to a certain type of water right in certain circumstances other administrative provisions clearly would not apply to a certain type of water right and every circumstance.

Idaho Code § 42-1412(6) provides that “[t]he decree shall also contain an express statement that the partial decree is subject to such general provisions necessary for the definition of the rights or for the efficient administration of the water rights.” I.C. § 42-1412 (1996). We conclude that a general provision is an administrative provision that generally applies to water rights but it need not apply to every water right.

Idaho Code § 42-1412(6) instructs that a general provision should be included in a water right decree,if such general provision is “necessary” to define or efficiently administer water rights. Whether a general provision is “necessary” depends upon the specific general provision at issue and involves a question of fact, (defining the proposed general provision and the circumstances of its application), and a question of law, (determining whether the general provision facilitates the definition or efficient administration of water rights in a decree). A general provision is “necessary” if it is required to define the water right being decreed or to efficiently administer water rights in a water right decree.

III.

A PROVISION REGARDING FIREFIGHTING GENERALLY APPLIES TO WATER RIGHTS AND IS NECESSARY FOR THE EFFICIENT ADMINISTRATION OF WATER RIGHTS

The SRBA district court found that the proposed general provision regarding firefighting was not a general provision and struck it from the Director’s Amended Report. We conclude that a provision regarding firefighting is an appropriate general provision and should be included as a general provision in the decrees issued in the SRBA.

The proposed provision regarding firefighting generally applies to all water rights. The proposed provision provides that firefighting purposes is an alternate use for which any water right may be used, and firefighting is recognized as a lawful use of water with or without a water right.

The proposed provision regarding firefighting is necessary to define water rights being decreed. The firefighting provision recognizes a lawful use of water “with or without a water right” and describes the circumstances in which water may be used:

to extinguish an existing fire on private or public lands, facilities, or equipment; to prevent an existing fire from spreading to private or public lands, facilities, or equipment within the vicinity of and endangered by an existing fire; and by firefighting personnel engaged in fighting an existing fire.

The proposed firefighting provision also instructs that “[f]irefighting purposes does not include the use of water to prevent a fire from occurring in the future, the use of water for domestic purposes in regularly maintained firefighting stations, or the storage of water for fighting future fires.”

A general provision allowing for the use of water with or without a water right for the limited and beneficial use of firefighting is necessary to define or efficiently administer water rights. We hold that as a matter of law the proposed provision regarding firefighting should be included as a general provision in the decrees issued in the SRBA.

IV.

A PROVISION DEFINING A WATER RIGHT AS FOR “IRRIGATION SEASON” CAN BE STATED AS AN ELEMENT OF A WATER RIGHT **

The SRBA district court found that a general provision regarding early and late season irrigation was not necessary to administer irrigation water rights and determined a general provision regarding early and late season irrigation would not be included in the decrees issued in the SRBA. The SRBA district court ruled that all decrees for irrigation in the SRBA shall set the period of use as the “irrigation season.” We agree that a general provision regarding early and late season irrigation need not be included in the decrees issued in the SRBA.

A general provision is not an essential element of a water right. Idaho Code § 42-1411(2) mandates the Director “shall determine the following elements, to the extent the director deems appropriate and proper, to define and administer the water rights acquired under state law: ... (g) the period of the year when water is used for such purposes.” Idaho Code § 42-1412(6) states that “[t]he decree shall contain or incorporate a statement of each element of a water right as stated in subsections (2) and (3) of section 42-1411, Idaho Code____”

We agree with the SRBA district court and the Director that due to year to year changes in climatic conditions and variability in each area’s soil type, the period of use for irrigation water rights should not be defined as a fixed period of use. The period of use for irrigation is the irrigation season. The irrigation season is determined by the irrigator based upon when water is available, needed, and can be put to beneficial use for that purpose. No irrigator has the right to waste water. The Director has the administrative duty and authority to annually determine the beginning and ending of an irrigation season and to prevent wasteful use of water by irrigators.

The period of the year when water is used for irrigation purposes shall be determined annually by irrigators subject to the authority of the Director and any reasonable rules and regulations the Director may adopt.

V.

INCIDENTAL STOCK WATERING AS A GENERAL PROVISION IS NOT NECESSARY TO DEFINE A WATER RIGHT OR FOR THE EFFICIENT ADMINISTRATION OF A WATER RIGHT

The SRBA district court found that the provision regarding incidental stock wa ter would not be included as a general provision in the decrees issued in the SRBA. We agree.

Idaho Code § 42-1411(2) instructs the Director to determine the element of purpose of use, I.C. § 42-1411(2)(f), and to include “such remarks and other matters as are necessary for definition of the right, for clarification of any element of a right, or for administration of the right by the director,” I.C. § 42 — 1411(2)(k).

Incidental stock watering is defined by the Director as stock water that

is not specifically included for a water right that includes irrigation, a portion of the quantity described for irrigation use can be diverted and used from the same point of diversion and at the same place of use as the irrigation use for purposes of maintaining a reasonable water supply for stock watering dining the period of use for irrigation.

Stock watering is included as a beneficial use of water under I.C. §§ 42-111, 42-113, and 42-114. The Director has the authority to define incidental stock watering regulations for the administration of a water right. A general provision regarding incidental stock watering is not necessary for the definition of the rights or for the efficient administration of the water rights issued in the SRBA.

VI.

USE OF “EXCESS WATER” CANNOT BE DECREED AS A WATER RIGHT

The SRBA district court found that the provision regarding excess water would not be included as a general provision in the decrees issued in the SRBA. The SRBA district court determined that the provision regarding excess water was not legally necessary. We agree with the SRBA district court that “excess water” or “high flow,” (a term used by the parties to describe the same water), is not subject to a water right. Excess flow is not subject to definition in terms of quantity of water per year, which is essential to the establishment and granting of a water right.

The provision regarding excess water is not an element of a water right since excess water inherently relates to water that has not been decreed. Consequently there cannot be a prior relation to excess water. A general provision concerning excess water would not define a water right or be necessary to administer a water right and therefore is not appropriate.

VII.

CONCLUSION

We hold that a provision regarding firefighting should be included as a general provision in regulations and the period of use for irrigation water rights as the irrigation season.*** The use of excess water cannot be decreed as a water right or a general provision. No costs are awarded on appeal.

Justice McDevitt participated in this opinion pri- or to his resignation.

1

. The conjunctive management issue has been ordered to be reargued. Consequently, this opinion does not address conjunctive management.

2

. The proposed general provisions are attached as Appendix A to this opinion.

3

. General provision 2 for Basin 57 is designated as basin-wide issue 5A.

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Editor’s Note: Part IV was withdrawn by the Opinion on Reargument and Rehearing. See p. 581, infra.

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Editor's Note: The conclusion was amended by Opinion of Reargumenl and Rehearing.