Idaho Agriculture and Water in the News

In the week of June 10th, 2024, the agricultural industry and water supply in the state of Idaho were prominent in the news. The Idaho Department of Water Resources (IDWR) placed red tags on many ground water wells in Eastern Idaho, instructing farmers to stop pumping groundwater. According to the Idaho Department of Water Resources, red tags were issued due to the risk that junior water rights users in Bonneville, Bingham, Jefferson, and Clark counties usage would impact the water rights of senior water rights users by creating a water shortage of 74,100 acre-feet in the Twin Falls Canal Company.

This decision led to concerns among certain farmers about having enough water to irrigate their crops. The order to curtail pumping was issued because water rights users in several Idaho counties had not complied with the state's groundwater mitigation plans. The last agreement was drafted in 2016.

Report by East Idaho News

East Idaho News covered the story and reported the following concerns about the water curtailment:

• The Governor’s Office changed the formula on which the previous agreements were based
• The state is having one of the best water years in the last decade, despite this, the new formula called for the stoppage of pumping
• If pumping is stopped in this wet year, they have further concerns over what will happen in drier years
• The water would be shut off for most of the farm ground in Bonneville County
• The timing for shutting down pumping was ill-advised, with farmers needing to utilize water for recently planted crops
• The Idaho counties that complied with preparing a water mitigation plan based off new formulations did so under duress
• The Department of Water Resources plans to reduce the use of 6,000 to 12,000 acre-feet every year going forward, and the agreements proposed will take more than that

Ongoing Legal Actions

The legal argument between surface water rights holders and groundwater rights holders over the appropriation of water in Idaho has been ongoing for years.

2005 Lawsuit

In 2005, the Idaho Ground Water Appropriators filed a Motion for Summary Judgment, making the argument that “curtailing groundwater diversions on a large or small-scale is not likely to produce meaningful supplies of water during the short-term period when it might be diverted to beneficial use by surface water users.” The motion also brought up issues relating to a lack of water storage, resulting in wasted water and the fact that curtailing groundwater usage would significantly impact Idaho’s economy.

June 2023 Ruling

On June 1, 2023, the District Court of the Fourth Judicial District of the State of Idaho ruled on cases filed against the Idaho Department of Water Resources regarding due process and remedy for the petitioners, Idaho Ground Water Association, and the City of Pocatello. The court found that the petitioners “have a plain, speedy, and adequate remedy at law in the form of judicial review. The ruling also stated that the administrative remedy had not been exhausted and that the director must be given the opportunity to address issues raised by the petitioners pertaining to the legal propriety of the 2023 water methodology orders. The ruling stated:

“In making this finding, the Court is influenced by the fact that administration in this case arises in the larger context of an ongoing delivery call that has existed since 2005. The director issued its first methodology order in 2010. Since then, the methodology order has been modified and amended three times to account for new data, modeling revisions, and climate trends. So this is not a new issue. And the director gave heads-up that amendments may be required again in 2023, starting in September of 2022, when he notified individuals that the Department was investigating integrating new data techniques into the methodology order.”

Regarding the process, the court ruled that it must be cognizant of the director’s duty to timely administer water rights in priority and that the director’s duty to administer water is “clear and executive.” The ruling further noted,:

“Time is of the essence in water administration. In any given year, the reality is there is a short time frame between when water supply determinations can be made and when water users' demands for irrigation water begin. Any process employed by the director must account for the exigencies of these time constraints. These exigencies were recognized by the drafters of our Constitution as set forth in the Idaho Supreme Court...”

August 2023 Lawsuit

Fast forward to August 2023, when the Idaho Ground Water Appropriators filed a lawsuit against the Idaho Department of Water Resources and Gary Spackman in his capacity as the Director of the Idaho Department of Water Resources. The lawsuit was over the distribution of water to various water rights held by or for the benefit of A&B Irrigation District, American Falls Reservoir District, Burley Irrigation District, Milner Irrigation District, Minidoka Irrigation District, Northside Canal Company and Twin Falls Canal Company. The petition also stated that Idaho Ground Water Appropriators, Inc, (Petitioners) were acting for and on behalf of North Snake Ground Water District, Magic Valley Ground Water District, Carey Valley Ground Water District, Aberdeen-American Falls Area Ground Water District, Jefferson-Clark Ground Water District, Madison Ground Water District, and Henry’s Fork Ground Water District.

The petition asked for a judicial review of several orders issued by the department's director. The complaints raised questions about new rulemaking, whether the new formulas outlined in the rulemaking were based on science, and whether constitutional rights, proper due process, and other procedural steps were followed properly.

More information about legal actions, archived legal matters, orders, settlements and more can be found on the Idaho Department of Water Resources website (see link at the end of this article).

Idaho Water Rights – Idaho Department of Water Resources

According to the state of Idaho’s Water Users Information Guide, “A water right is the right to divert the public waters of the state of Idaho and put them to beneficial use, in accordance with one’s priority date.” The following are definitions listed in the information guide.

Beneficial Use

The state of Idaho considers the following beneficial use:

• Domestic
• Irrigation
• Stock watering
• Manufacturing
• Mining
• Hydropower
• Municipal use
• Aquaculture
• Recreating
• Fish and Wildlife

Priority Date – First in Time, First in Right

Idaho water law is based on the doctrine “first in time is first in right, " meaning that the first to put water to beneficial use has the first right to use the water. A priority date is the date the water right was established. It is important because it determines who gets water when there is a shortage. Water rights can be owned by an individual or by an individual as a partner in a water delivery district or company.

Establishing Surface Water Rights

According to the Idaho Department of Water Resources, “as of May 20, 1971, there is only one way to establish a right to surface water, and that is by following the application/permit/license procedure.” There is one exception to this rule for water rights used solely for instream watering of livestock. Surface water rights are considered Senior Water Rights.

Establishing Ground Water Rights

Groundwater rights are considered Junior Water Rights. According to the Idaho Department of Water Resources, “As of March 25, 1963, there is only one way to establish a right to groundwater, and that is by following the application/permit/license procedure”. There is one exception which is domestic use and includes:

• Homes
• Organization camps
• Public campgrounds
• Livestock
• Other purposes, including irrigation up to ½ acres of land with other restrictions

Idaho Title 42

According to Idaho Title 42 – 603 Distribution of Water Among Appropriators – Supervision of Water Distribution – Rules and Regulations, “The director of the Department of Water Resources is authorized to adopt rules and regulations for the distribution of water from the streams, rivers, lakes, groundwater and other natural water sources as shall be necessary to carry out the laws in accordance with the priorities of the rights of the users thereof. Promulgation of rules and regulations shall be in accordance with the procedures of chapter 52, title 67, Idaho Code.”

Water Mitigation Plans are Required According to Idaho Law

Idaho water management rules established in 1994 view ground and surface water as one resource. Idaho law also states that senior water rights hold priority over junior water rights during water shortages. To best manage water resources fairly and honor the property rights of both senior and junior water rights holders, the state of Idaho requires a water mitigation plan. The goal behind the development of a water mitigation plan is to recharge the Eastern Snake River Plain Aquifer.

The state of Idaho has a well-developed process for evaluating Mitigation Plans for Water Right Permits. This process has been written and updated several times over the years. The process is available for public review and can be found on the State of Idaho Department of Water Resources website (see link at the bottom of this article).

According to the Application Processing Guidance Document found on their website, “ Failure of the holder of the right to implement and continuously comply with the requirements of an approved mitigation plan, while continuing to divert and use water, constitutes a violation subject to enforcement action under Sections 42-311, 350, 351, and/or 170 lB, Idaho Code. Any approval must be conditioned that failure to mitigate as described by the plan of mitigation, while still diverting water under the permit is cause for the director to cancel a water right permit or revoke a subsequently approved water right license.”

Going Forward

Idaho Lt. Governor Scott Bedke was interviewed on Channel 11 Idaho KMVT. He said a water mitigation agreement has now been reached for the end of the year, and they were committed to ensuring this situation never happened again. He also wanted to make clear that while red tags were issued to stop pumping groundwater, the state did not enforce further and turn off pumping., nor was the state going to pursue fines and penalties. Bedke reminded viewers that “Agriculture is our number one industry in the state of Idaho—as well as the economic multiplier effect of agriculture. We can 't afford to idle any acres, and we want to maximize production. However, we also have a finite amount of water, and we've got to make that go as far as we can within the confines of the laws that we have set up.”

At AGPROfessionals, we know how important access to water is to our clients, whether they are utilizing surface or groundwater. We have experience with very similar circumstances from Colorado in 2002-2010. We will continue to stay apprised of the situation in Idaho and with our office located in Twin Falls, we can offer our engineering, environmental, and compliance consulting services to those who may need them.

Links

Idaho Department of Water Resources Water Rights brochure HERE

Idaho Department of Water Resources Rules for Conjunctive Management of Surface and Ground Water Resources HERE

Idaho Department of Water Resources Curtailment Information HERE

Idaho Department of Water Resources Compliance and Enforcement Information HERE

Idaho Department of Water Resources - Application Processing Memo 71 HERE

Idaho Department of Water Resources - Application Processing Memo 72 HERE

Idaho Statutes - Title 42 HERE

Legal document - IGWAs Petition for Judicial Review HERE

Legal document - Legal Action in District Court HERE

Legal document - Surface Water Response Brief HERE

News Report - East Idaho News HERE and HERE

News Report - KMTV Interview with Idaho Lt. Governor Scott Bedke HERE

Legal Opinion / Analysis by Somach Simmons and Dunn Attorneys at Law HERE