(C) Idaho Capital Sun
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New Idaho Department of Water Resources order would force 900 groundwater users to curtail use [1]
['Clark Corbin', 'More From Author', '- April']
Date: 2023-04-28
A new water methodology order issued April 21 by the director of the Idaho Department of Water Resources has left many eastern Idaho farmers and ranchers unsure if they will be able to water their crops and irrigate their land this year, said Jennifer Ellis, whose family has been involved with agriculture in Bingham County for five generations.
The new methodology order contains a curtailment notice that would mean groundwater users pumping on the Eastern Snake Plain Aquifer who hold water rights dating back to December 1953 would have their water curtailed, or shut off, if they do not have a mitigation plan in place that they are participating in.
The curtailment notice has been put on hold temporarily, pending a hearing the Idaho Department of Water Resources has scheduled for June 6 through June 10 at the agency’s state office in Boise.
In a telephone interview with the Idaho Capital Sun, Mathew Weaver, the deputy director of the Idaho Department of Water Resources, said the curtailment order would apply to about 900 groundwater users pumping off the Eastern Snake Plain Aquifer who don’t have a mitigation plan in place or who are not complying with that mitigation plan. That includes all manner of groundwater users, including farming, irrigation, commercial and industrial users.
Curtailment order doesn’t apply to Eastern Snake River Aquifer groundwater users with mitigation plans
Weaver told the Sun the curtailment order does not apply to the majority of Eastern Snake Plan Aquifer groundwater users who have a plan in place that they are complying with.
Still, if the order goes forward following the June public hearing, that means that 900 eastern Idaho ground water users could lose access to water following the new methodology order.
“That is a pretty dramatic change from where we have been in the past,” Weaver said. “Because of that, the director wanted to have a contested case hearing. “
As a result of testimony and evidence presented during the hearing, Idaho Department of Water Resources Director Gary Spackman could issue a revised order, according to a press release issued Tuesday by the department.
Weaver said the curtailment would be necessary because department officials predict that senior surface water rights holders would face a 75,000 acre-foot water shortfall.
Idaho water issues are governed by the prior appropriation doctrine, which means “first in time, first in right.” Put another way, if there is not enough water to go around, older water rights have priority over the more recent, or junior water rights.
“By law, we have to keep people with senior water rights whole, and we want to make sure the junior ground water pumpers are aware that despite the settlement agreements between the Surface Water Coalition, Idaho Ground Water Appropriators, and the Coalition of Cities, if junior groundwater pumpers are not participating in an approved mitigation plan, they could be subject to curtailment this year,” Weaver said in a written statement.
Ellis and Weaver said water issues are highly complex and have been the subject of many lawsuits.
“It’s super sticky,” said Ellis, who is a past president of the influential Idaho Cattle Association.
“I would not hazard a guess of trying to give anyone advice on this right now,” she added. “There are just too many twists and turns.”
What does this mean for affected groundwater users?
Delaying the curtailment notice until after the public hearing gives water users a reprieve until June. But Ellis said it is impossible to run a business and plan for the irrigation and growing seasons with that kind of uncertainty over your head.
“Farmers and ranchers have to have stability in their operation, and it’s not year-to-year and it’s definitely not month-to-month of whether you have water or not,” Ellis said.
“What good does it do me to plant a crop of spuds and be able to water them and then have to wait until there is determination in the second week of June and they say ‘shut it off?’” Ellis added. “You’re better off not planting in the first place, but you can’t do that because you have contracts. It’s time for real world change in how water is administered in this state.”
Ellis sold off about 90% of her land in Bingham County last year and moved outside of the basin to Chesterfield to run cattle and put up hay because she said she was worried about having predictable, stable access to water in Bingham County.
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“That definitely wasn’t in our plans, not by a longshot,” Ellis said.
Ellis said she isn’t sure if the Idaho Department of Water Resources would find her to be in compliance with her mitigation plan, so she said she doesn’t know if she would be subject to curtailment or not.
In Tuesday’s press release, the Idaho Department of Water Resources said there are seven approved mitigation plans in place, which were submitted by Idaho Ground Water Appropriators, Southwest Irrigation District, Goose Creek Irrigation District, Coalition of Cities, the Water Mitigation Coalition and A&B Irrigation District.
“Because these entities have approved mitigation plans in place, they, and the water users they serve, will not need to show how they can mitigate for projected water shortfalls if they continue to comply with their plans, the director’s order said,” the Idaho Department of Water Resources’ press release said.
Ellis said there is uncertainty, and she doesn’t feel like she has a “safe harbor” because the department’s director has found groundwater users to be in breach of a 2015 settlement agreement.
Weaver told the Sun that the Idaho Ground Water Appropriators, or IGWA, did breach the agreement in 2021. Weaver said surface water users and the Idaho Ground Water Appropriators have since agreed to “cure” that breach, and IGWA will not be subject to curtailment due to the 2021 breech.
But because of the breaches and the priority date for water rights being pushed back to 1953, Ellis worries many groundwater users will be bled dry.
She said it would be devastating for the economies of the state and eastern Idaho to have junior groundwater users lose their water.
Why are we talking about water shortages if there is substantial snowpack this year?
Much of Idaho has an above-average snowpack this year due to a snowy winter and record-breaking March snowfall.
But the situation is not universal across the state.
This order focuses on the Upper Snake River Basin, which supplies water to the Snake River and the reservoirs.
“Even though this has been a remarkable winter and water year for many basins in Idaho, it has not been uniformly great everywhere,” Weaver said.
The Idaho Department of Water Resources developed the 75,000 acre-foot shortfall projection based on a forecast of water flows at the Snake River at Heise. But the department updated, or changed, several of the elements and factors it used in its calculations to determine water shortages, which the department refers to as injuries.
“It also revises the method used to calculate curtailment dates in a manner that could result in earlier curtailment dates,” the Idaho Department of Water Resources said in Tuesday’s press release.
Weaver said the department must periodically update the factors it uses in its calculations to protect senior water rights holders under state laws.
Two previous years’ worth of drought and lower reservoir storage carryover from last year are also factors in why the department is projecting a shortfall for senior surface water rights holders.
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