Somach Simmons & Dunn | Attorneys at Law
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This alert follows up on a prior alert detailing the Idaho Department of Water Resources’ (IDWR) May 30, 2024 order (Curtailment Order) directing the curtailment of certain ground water rights that divert from the Eastern Snake Plain Aquifer (ESPA) and are junior to March 31, 1954, for the purpose of satisfying the Surface Water Coalition’s (SWC) delivery call. Had it been administered, the Curtailment Order would have resulted in IDWR shutting off over 6,400 ground water rights that irrigate roughly 500,000 acres of farmland overlying the ESPA, but, as described below, subsequent actions allowed those farmers to water their crops through the end of 2024 without threat of curtailment.
The Curtailment Order was unparalleled. Since 2005, when the SWC placed the delivery call, IDWR has administered the delivery call through a healthy number of wet years (when no curtailment was required) and various short term mitigation arrangements (largely prior to 2009), as well as long-term settlements and mitigation plans. However, IDWR’s administration was all against the backdrop of the “Methodology Order”—the agency’s method of determining how/when to curtail junior ground water users when all other regulatory tools fail.
Map of the SWC and IGWA Districts. Source: https://idwr.idaho.gov/wp-content/uploads/sites/2/legal/curtailment/2014/espa-orgs.pdf
In 2024, the other tools failed. The most important of the tools was a settlement, approved by IDWR as the “SWC-IGWA Mitigation Plan” in 2016, which provided an alternative means to regulate irrigators in ESPA ground water districts (Districts) that are members of an umbrella organization known as Idaho Ground Water Appropriators, Inc. (IGWA). Under the SWC-IGWA Mitigation Plan, the Districts agreed to restore aquifer levels to essentially 2001 levels by collectively conserving (i.e., reducing pumping or increasing managed recharge) 240,000 acre-feet or more annually, and also to annually deliver 50,000 acre-feet of storage water for direct use by the SWC, in exchange for protection from curtailment.
Since 2021, however, multiple Districts have breached or repudiated their obligations under the mitigation plan, thus protection from curtailment was unavailable to them in 2024. In April, pursuant to the terms of the Methodology Order, the Director issued an order predicting injury to the SWC’s senior rights in the amount of 74,100 acre-feet over the course of the 2024 irrigation season. The Curtailment Order then specified which ground water rights (the 6,400 rights, most of which are located in non-compliant Districts) were subject to curtailment. Much chaos ensued, including threats of violence to IDWR personnel who were responsible for enforcing the curtailment.
The Curtailment Order, however, did not remain in effect for long. On June 13, 2024, IDWR paused compliance inspections (which verify whether the affected ground water users were complying with the Curtailment Order) and the parties attended meetings brokered by state political officials. On June 19, 2024, the Districts and SWC entered into the 2024 Stipulation, which provided the Districts with protection from curtailment for the remainder of the 2024 irrigation season in exchange for engaging in good faith negotiations to revise the SWC-IGWA Mitigation Plan.
In recognition of this effort, on June 26, 2024, Governor Brad Little issued an executive order directing the Districts and SWC to negotiate a revised mitigation plan by October 1, 2024. In accordance with the 2024 Stipulation and the Governor’s executive order, the parties have met tirelessly since and, while negotiations will continue into October, they now have within their sights a revised plan that may work for all involved.
In sum, many ground water users in eastern Idaho were spared from curtailment in 2024 due to the SWC’s and Districts’ willingness to look past recent disputes and return to the drawing board to craft an improved mitigation plan. Water users across the ESPA can be hopeful that this revised SWC-IGWA Mitigation Plan, if executed, will lead to a new era of cooperation in IDWR’s conjunctive administration of water rights under Idaho’s prior appropriation system.
For inquiries or additional information, please contact:
Somach Simmons & Dunn represents the City of Pocatello and American Falls-Aberdeen Ground Water District in legal matters including, but not limited to, those described herein. This alert reflects the observations of the authors and is not intended to limit or otherwise describe the views of our clients. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.
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