7/2/12: The 2012 Idaho Water Users Association’s Water Law Conference

July 2, 2012

The Idaho Water Users Association’s annual Water Law Seminar was held June 18-19 in Sun Valley, and SHRA’s Jennifer Stevens and Kelly Horn were in attendance. Attorneys from around the state and many members of irrigation district boards and canal companies took part. Speakers included representatives from government agencies such as the Environmental Protection Agency and the Bureau of Reclamation, attorneys whose practices involve representing irrigation entities and other water users, and representatives of some of Idaho’s highest elected leaders. Dr. Stevens spoke on the second day of the seminar to inform the attendees about historical research and how it can be helpful in water litigation.

The seminar narrowed in on the issues currently facing Idaho water users. There were multiple panels about the Wood River Valley, due in part to the valley’s upcoming introduction to conjunctive water management, which is likely to pit upstream (and junior) groundwater users against downstream (but senior) surface water users. There is some hope that the issues can be resolved outside of the courtroom, but the consensus seems to be that a “creative” solution would be needed and there isn’t a great deal of optimism on that front. Another panel that pointed to Idaho’s current policy challenges focused on fracking technology.

Finally, a great deal of time was devoted to issues related to the Clean Water Act. The unanimous March 2012 Supreme Court decision in favor of a north Idaho couple against the EPA inspired a good deal of discussion. The decision itself (Sackett v. Environmental Protection Agency) involved a piece of land in a semi-developed subdivision that bordered Priest Lake. After filling their lot with dirt and rock, the couple received a compliance order from the EPA mandating that they restore the land to its original state per the Clean Water Act, with the justification that the lands contained wetlands and were therefore under the jurisdiction of the United States. The order threatened the couple with a daily fine exceeding $30,000 for each day that they opted to leave the land in its altered state. The Supreme Court ruled against the EPA for violating the couple’s right to a hearing on the matter. The lead attorney in the case from the Pacific Legal Foundation presented his case, complete with excerpts from oral arguments and questions posed by the justices, and provided some very interesting insight into the inner workings of the litigation. There was a good deal of discussion about the Clean Water Act generally, due in part to this decision, including a presentation by attorney Albert Barker about a criminal case in the Boise Valley involving similar issues on which SHRA worked. There was a sense of relief in the room that the federal agency had been reined in to the degree that it was in the Sackett decision, and hope that the agency would not be as aggressive in its pursuit of violators who are in many cases average citizens who do not have knowledge of certain requirements nor the means to fight a federal bureaucracy on their own.

The conference was very informative and SHRA looks forward to a continuing role in these dialogues in the future.