Somach Simmons & Dunn | Attorneys at Law
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On November 14, 2024, the seven members of the Surface Water Coalition (SWC) and nine Ground Water Districts (GWDs) spanning the Eastern Snake Plain Aquifer (ESPA) finalized the “2024 Stipulated Mitigation Plan” (the “2024 Plan”), which replaced its predecessor agreement, the 2016 Plan. Now, the signatories await an order from the Director of the Idaho Department of Water Resources (IDWR) approving the 2024 Plan to make it enforceable before the 2025 irrigation season begins.
Map showing the locations of the SWC and GWDs in relation to the ESPA (missing Henry’s Fork GWD, which is located next to Madison GWD). Source: https://idwr.idaho.gov/wp-content/uploads/sites/2/legal/curtailment/2014/espa-orgs.pdf.
Background
The canal companies and surface water irrigation districts comprising the SWC hold senior water rights, some as old as 1900, to divert and store Snake River water to irrigate roughly 560,000 acres of farmland in and around Idaho’s Magic Valley. Snake River flows in the vicinity of the SWC members’ diversions, between Twin Falls and Burley, include significant discharges from the ESPA in the “near Blackfoot to Minidoka” reach of the river, shown below. These “reach gains” form a critical source of water for some SWC members, including the Twin Falls Canal Company, but have generally declined since the 1980’s as a result of increased regional ground water pumping and decreased return flows from surface water irrigation efficiency improvements, and are among the reasons the SWC filed a delivery call in 2005, demanding curtailment of injurious junior ground water pumping. As we have discussed in a previous Environmental Alert, IDWR’s “Methodology Order,” issued in 2010, is the administrative tool used by the agency to conjunctively manage ground water and surface water under the SWC’s delivery call, and underlies any curtailment orders.
By contrast, ground water pumping in eastern Idaho really took off in the 1950’s, and ground water rights in the ESPA generally hold priority dates between the 1940’s and 1980’s. The 1995 Ground Water District Act enabled ground water users to petition their county commissioners to organize a district. There are nine GWDs across the ESPA and their members irrigate approximately 920,000 acres. By statute, a GWD has many of the same roles and responsibilities as a surface water irrigation district, with a key difference being that the GWDs’ members own and operate individual water rights (for each well) rather than receive service from district-owned water rights and facilities. GWDs have general authority to represent their members in legal actions, including the SWC’s ongoing delivery call.
Map showing the relevant reaches of the Snake River. Source: https://idwr.idaho.gov/wp-content/uploads/sites/2/iwrb/2008/20080129-ESPA-CAMP.pdf
Graph showing the variability in aquifer discharges in the near Blackfoot-Minidoka reach of the Snake River over the last century. Source: ESPA-gains-800000-acre-feet-of-water-from-Spring-2023-to-2024-FINAL.pdf
2016 Plan
In 2015, the SWC and GWDs entered into a permanent agreement that sought to resolve the SWC delivery call, which IDWR approved as a stipulated mitigation plan in 2016 (the “2016 Plan”). Under the 2016 Plan, the GWDs agreed to (1) restore ESPA water levels to 1991-2001 average levels by 2026, and maintain the same thereafter, by conserving ground water (i.e., decreasing pumping and/or increasing managed aquifer recharge) at magnitudes of 240,000 acre-feet (AF)—or more, if necessary—each year, and (2) acquire and deliver 50,000 AF of water stored in reservoirs to the SWC each year, in exchange for safe harbor from curtailment under the Methodology Order.
The first five years of implementing the 2016 Plan went rather smoothly—2016 through 2020 was a relatively cool and wet period in eastern Idaho, meaning the SWC’s surface water supplies were adequate and the GWDs did not need to pump as much ground water. Also, during this period, nearly 1 million acre-feet (MAF) of water was recharged, either through the GWDs’ recharge efforts or by the Idaho Water Resource Board’s recharge program. ESPA water levels were on track to meet the 2026 goal and IDWR did not have to curtail any of the GWDs’ members.
Then came drought. The dry years of 2021 and 2022 flipped the 2016 Plan on its head, as the SWC experienced significant shortages, realized that the GWDs did not conserve as promised, and asked IDWR to enforce the 2016 Plan and impose remedial actions. IDWR determined that certain GWDs breached the 2016 Plan’s conservation obligation in those years, and more importantly, concluded that the GWDs could not use averaging—they must conserve a fixed amount each year—and the annual obligation was 240,000 AF, not 205,000 AF, as some GWDs had asserted.
Then came a litany of litigation. Between 2022 and 2024, the SWC, GWDs, as well as other ground water users, such as ESPA municipalities, were involved in numerous cases concerning IDWR’s enforcement of the 2016 Plan and IDWR’s amendments to the Methodology Order. Certain GWDs sought to free themselves of the 2016 Plan’s burdens by attempting to operate under previously approved mitigation plans and even filed petitions to secure new mitigation plans. By May 2024, there were multiple cases pending before the Director, multiple cases in district courts, and multiple appeals in the Idaho Supreme Court. Things came to a head on May 30, when the Director issued an unprecedented Curtailment Order that directed IDWR staff to curtail pumping for roughly 500,000 acres of farmland across certain GWDs. The situation was dire—the SWC and the GWDs were at loggerheads, and IDWR staff received threats of violence when enforcing the curtailment order.
Negotiations
On June 10, Governor Brad Little set an impromptu meeting in Sun Valley to bring the two groups together to negotiate a short-term solution. On June 19, the SWC and GWDs entered into the “2024 Stipulation,” which protected the GWDs from curtailment for the remainder of the irrigation season in exchange for engaging in good faith negotiations to revise the 2016 Plan. On June 26, Governor Little issued an Executive Order directing the SWC and GWDs, with the state’s facilitation, to negotiate a revised mitigation plan by October 1, 2024.
Over the coming months, the parties negotiated revisions to the 2016 Plan that would make it more protective of the SWC while also creating implementation flexibility for the GWDs. By November 14, 2024, all parties had executed the new agreement.
2024 Plan
The 2024 Plan largely follows the framework of the 2016 Plan—it still requires GWDs to conserve ground water and deliver storage water to the SWC—but there are some notable differences. First, the plan is effective for a four-year term (ending in December 2027), with an automatic renewal in the absence of termination. The plan’s overarching goal shifted from increasing ESPA water levels to increasing Snake River reach gains; GWDs’ compliance will no longer be evaluated based on ground water level goals. Rather than strictly conserve 240,000 AF or more annually, GWDs now must conserve an average of 205,000 AF annually; further, if a GWD over-conserves, the excess can now be carried over to reduce the conservation burden in the next term. Finally, the GWDs’ obligation to annually secure storage water, and deliver it in amounts equal to the SWC’s need for the water, increased from 50,000 AF to 75,000 AF, and potentially 82,500 AF in 2027, depending on reach gain conditions; further, the GWDs changed the method by which they internally allocate that burden from basing it on each GWD’s proportionate share of the baseline (the GWD’s average annual pumping from 2010-2014) to basing it on each GWD’s proportionate share of the total steady-state impacts to near Blackfoot-Minidoka reach gains, as determined by computer modeling, which generally shifts the burden to those GWDs closer to the Snake River.
Conclusion
After five-plus months of negotiating, the SWC and the GWDs—and the state of Idaho—can celebrate the significant achievement of reaching this new agreement. The 2024 Plan provides nearly one million acres’ worth of farmers with certainty and a path forward to irrigate their crops without fear that IDWR will order them to shut off their wells over the next three years (and possibly beyond).
To be sure, the implementation of the 2024 Plan could still bring about disputes, and it remains to be seen whether ground water users will face additional burdens under a Ground Water Management Plan, so stay tuned.
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Somach Simmons & Dunn represents American Falls-Aberdeen Ground Water District and the City of Pocatello 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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