(Editor’s note: As of June 20, a mitigation agreement was signed by all parties and submitted to the Idaho Department of Water Resources for approval.)
When the state of Idaho announced in late May that junior water rights holders for Idaho’s Eastern Snake Plain Aquifer would be faced with a curtailment order, agricultural water users were quick to condemn the order, fearing devastating impacts on their operations.
The Idaho Department of Water Resources projected senior water rights holders in eastern Idaho could face a water shortage of about 74,000 acre-feet (one acre-foot is 325,851 gallons) after four counties were out of compliance with a state groundwater mitigation plan. This led the department to issue a water curtailment for about 500,000 acres of junior water rights holders.
Two weeks later, the department paused the curtailment order after ground and surface water users agreed to negotiate a mitigation plan by Oct. 1.
Opportunity strikes
Southeastern Idaho rancher Brad Foster was raised in the Snake River Valley and has been farming the land and ranching cattle for the past 50 years. Water rights have been a contentious issue for years, Brad said, and the same debate seems to pop up every 10 or 15 years.
“Water is what made Idaho famous.” Brad told WLJ. “It was the water that was growing the potato.”
Idaho follows the first-in-time, first-in-right doctrine, which means the first people to use water have the right for the water, Brad explained. If water users don’t receive their allocated water, they can have water diverted from junior users until their needs are met. This is essentially what happened with the recent curtailment order.
Brad sees an opportunity with negotiations following the curtailment order, posing the question, “Can anything this bad turn out to be a good thing?” His answer? A resounding “yes.”
A history of management
The water curtailment order was withdrawn at a June 13 water board meeting after water users agreed to negotiate a new plan under the supervision of the governor and lieutenant governor.
“My prediction is that we’ll get agreements, we’ll get rules, we’ll get oversight, we’ll get management of this resource, and life in Idaho will go on because there is not another option,” Brad said.
In the ’90s, the state decided to manage groundwater and surface water supplies together, planning to reach water use agreements with water users during drought years and good years.
In 2015, a settlement was reached between water users, resolving decades of litigation.
“Before, it was just a bunch of farmers fighting over water,” Brad said.
But the issue affects more than farmers—it affects local cities, schools, hospitals, processing plants and anyone else that uses water, he said.
“Now, it’s become public, and all of a sudden everybody is coming to the table, including the governor and the lieutenant governor,” he continued.
The right to water
Brad said beneficial use must be proven to obtain a water right, and some water users have confused “right” with “ownership” over the years. Some water users have misused their water appropriations, selling to other parties or using the water for uses other than its intended purpose.
“First in time, first in right is the constitutional law in Idaho,” Brad said, “However, that doesn’t mean we get all the water we want, and we can do whatever we want with that water. You have the first right, but you have to be managed by and abide by all the other beneficial uses.”
Brad said the best science for aquifer management may change. Until then, the aquifer must be managed with the science we know today. He hopes negotiators can agree to a plan that will be fair and long-term, and come up with a framework that can be followed for future issues.
“We may find out in 10 years from now that there’s more to the aquifer than we even knew today,” Brad said. “We may have to sit down again in 10 years, and maybe this is a model on how to solve these kinds of problems: You don’t do it in the middle of the year, and if you do, be prepared to take the national media heat.”
He concluded, “Hopefully all the right people will be fair in this negotiation.” — Anna Miller, WLJ managing editor
