Living with Conjunctive Management: The Legal and Practical Consequences of Managing Surface Water and Ground Water Together
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Nevada Water Resources Assoc. presentation - Norm Semanko - Jan. 30, 2025
Living with Conjunctive Management: The Legal and Practical Consequences of Managing Surface Water and Ground Water Together
- 1. parsonsbehle.com LIVING WITH CONJUNCTIVE MANAGEMENT: THE LEGAL AND PRACTICAL CONSEQUENCES OF MANAGING SURFACE WATER AND GROUND WATER TOGETHER Norman M. Semanko Managing Shareholder & Water Law Practice Group 800 West Main Street, Suite 1300 Boise, ID 83702 Main: 208.562.4900 Direct: 208.562.4909 [email protected] Nevada Water Resources Association Annual Conference January 30, 2025
- 2. 2 This presentation will: - Provide background on conjunctive management of surface water and ground water in Idaho; and - Explore the recent mitigation plan and agreement between senior surface water users and ground water users in Idaho. Topics to be Covered
- 3. 3 Eastern Snake Plain Aquifer
- 5. 5 Decline in Spring Flows
- 6. 6 Surface Water Coalition & Ground Water Districts
- 7. 7 *Musser v. Higginson, 125 Idaho 392, 871 P.2d 809 (1994): Writ of mandate issued for IDWR to deliver water under prior appropriation doctrine. *Conjunctive Management Rules. IDAPA 37.03.11. *A&B Irrig. Dist. v. ICL, 131 Idaho 411, 958 P.2d 568 (1997): Ground and surface water rights to be decreed and managed together. “All water rights are from connected sources of water in the Snake River Basin and shall be administered conjunctively.” Legal Underpinning
- 8. 8 Surface Water Coalition 2005 Delivery Call AFRD No. 2 v. IDWR, 143 Idaho 862,154 P.3d 433 (2007): CM Rules are facially constitutional. A&B Irrig. Dist. v. Spackman, 155 Idaho 640, 315 P.3d 828 (2013): Out-of-priority diversions allowed with a mitigation plan. 2015 Settlement/Mitigation Plan SWC Delivery Call
- 9. 9 2015 Agreement breached in 2021 Curtailment order issued by the Idaho Department of Water Resources 2024 Stipulation suspended curtailment Negotiations resulted in: – 2024 Stipulated Mitigation Plan – 2024 Memorandum of Agreement What Happened?
- 10. 10 Replaces all previous mitigation plans and the 2015 settlement agreement. Parties are members of the Surface Water Coalition and Ground Water Districts. Four-year term (Jan 1, 2024-Dec 31, 2027), with automatic four-year renewals, unless terminated. These terms are “compliance periods” - with safe harbor. 2024 Stipulated Mitigation Plan
- 11. 11 Groundwater Conservation: Each District to conserve, at a minimum, a specified volume of groundwater (“Groundwater Conservation Allocations”), as measured from the District’s baseline diversion. Total is 205,000 acre-feet annually (note: total baseline diversion is 1,795,034 acre-feet per year and annual divertible volume is 1,590,034). 2024 Stipulated Mitigation Plan
- 12. 12 Compliance Period Allocations. Each District allocated a specified volume of water that may be diverted during the four-year period. Total Compliance Period Allocation is 6,360,135 (four times the Annual Divertible Volume of 1,590,034). Each District will apportion its allocation to the District’s patrons; may be pooled, exchanged or transferred within District. 2024 Stipulated Mitigation Plan
- 13. 13 District Aquifer Recharge. Districts may supplement Compliance Period Allocations by doing aquifer recharge; recharge within the District will count 1:1 as a reduction in groundwater use; this ration may be less or more (up to 2:1) for out-of-district recharge (modeled). 2024 Stipulated Mitigation Plan
- 14. 14 Measuring and reporting – Monthly for groundwater irrigation diversions – Annually for non-irrigation diversions – May include telemetry, self-reporting with photo evidence, or other reliable techniques – SWC diversions will continue to be measured and reported by Water District 1 – Reach gains from ESPA to Near Blackfoot to Minidoka reach of the Snake River 2024 Stipulated Mitigation Plan
- 15. 15 Conservation Carryover. Any District’s remaining allocation (surplus) will be carried over to the next four-year period. In 2031 (during second compliance period), the Parties will discuss minimum reach gain conditions that must be maintained to allow surplus allocations to be carried over; to be documented in an amendment to the Plan by September 15, 2031. 2024 Stipulated Mitigation Plan
- 16. 16 Reach Gain Mitigation Fund. The Idaho Water Resource Board will contribute $5,000,000 to develop projects that maximize benefits to gains in Near Blackfoot to Minidoka reach, using criteria. Districts will contribute $250,000 annually beginning in 2035. If reach gains go down, the Districts’ annual contribution will increase to $500,000. 2024 Stipulated Mitigation Plan
- 17. 17 Storage Water Component. District to secure 75,000 acre-feet of storage for SWC needs; increased to 82,500 acre-feet in 2027 if reach gains do not go up. The parties will commence discussions to determine the amount of storage required in 2028 and beyond, which shall be documented in an amendment to the Plan executed by September 15, 2027. 2024 Stipulated Mitigation Plan
- 18. 18 Safe Harbor. Those who comply with the Plan shall receive safe harbor from the SWC delivery call. Failure to comply with allocations may result in curtailment of individual patrons by IDWR. If a District fails to secure storage water for SWC needs, or to provide Reach Gain Mitigation funding, the District shall lose safe harbor during such period, until remedied. 2024 Stipulated Mitigation Plan
- 19. 19 Support State’s administration of water rights included in area of common ground water supply under SB 1341 (2024), prioritizing tributaries with the most ground water use and greatest impact to Near Blackfoot to Minidoka reach. Additional Districts or entities may join. Support for Legislative approval. 2024 Memorandum of Agreement
- 20. 20 For more information or questions, please contact: Norman M. Semanko Managing Shareholder & Water Law Practice Group PARSONS BEHLE & LATIMER 800 West Main Street, Suite 1300 Boise, ID 83702 Main: 208.562.4900 Direct: 208.562.4909 [email protected]