Assessing Idaho's Groundwater Settlement

Assessing Idaho’s Groundwater Settlement

John Simpson of Barker Rosholt & Simpson LLP

WATER LAW

The Eastern Snake Plane aquifer in southern Idaho supports nearly 2 million acres of farmland, dozens of cities, and various industries across the region. In 2015, after years of contentious litigation and a declining water supply, groundwater users and surface water users in the region entered into a settlement to end the conflict over the management and use of the groundwater in the aquifer. The settlement was a critical step toward protecting Idaho’s water future and combatting rapid decline in the Eastern Snake Plain aquifer.

Idaho’s water future is looking more secure than before the settlement, but there is still work to be done. Tyler Young, a writer for Irrigation Leader, spoke with John Simpson, a founding partner at Barker Rosholt & Simpson LLP, about the effects of the 2015 groundwater settlement, lessons learned, and plans for the future of groundwater in Idaho.

John Simpson, partner at Barker Rosholt & Simpson LLP.

PHOTO COURTESY OF JOHN SIMPSON.

Tyler Young: Please give us some information about your professional background and how you became involved in groundwater in Idaho.

John Simpson: By education, I am a civil engineer, and I practiced as an engineer for 7 years before I went to law school. During my time as an engineer, I also got my MBA. I worked indirectly with water during part of my time as an engineer, designing and constructing pressure vessels for petroleum storage throughout the West. I then worked for Idaho Power Company as an engineer down in Hells Canyon. I negotiated power contracts for hydropower during that time as well.

I then went to law school with the idea of bridging the communication gap between engineers and lawyers, the technical side and the legal side. When I got out of law school, I began working for Rosholt, Robertson & Tucker. John Rosholt was very active in the National Water Resources Association, and it was the preeminent water firm in southern Idaho. The firm represented a number of irrigation delivery systems, the Idaho Power Company, and other water users. I worked with engineers on the hydrology side and lawyers on the legal side—all good people. That is what led me to get into water.

When I joined the law firm, in the early 1990s the state was starting up the Snake River adjudication. That court case led to adjudicating the Native American, federal, and irrigation entity claims. Toward the conclusion of the adjudication and the resolution of all the claims, a new issue popped up: conjunctive management of groundwater and surface water in Idaho. There really had not been any conjunctive management prior to the early 2000s. The laws were on the books, but the state was reluctant to start administering groundwater and surface water without a groundwater model.

During the late 1990s, the state, with funding from the legislature and participation by private water users, developed the first groundwater model for the Eastern Snake Plain aquifer. The model came in on the heels of a multiyear drought and led to the first conjunctive management delivery call and litigation, which lasted for about 10 years before a settlement was reached in 2015. That settlement prescribed, as part of its terms, actions to be taken by the groundwater people to ensure that certain benchmarks in the aquifer, and ultimately an aquifer level goal, were met. This area of the aquifer discharged water into the Snake River and satisfied part of the demands of the senior surface water folks.

Tyler Young: How important is having a reliable source of groundwater for the state of Idaho?

John Simpson: On the Eastern Snake Plain aquifer, there are about a million groundwater acres and about a million acres of surface water irrigation. Many of the reaches in the Snake River are fed by discharges from the Eastern Snake Plain aquifer. Water levels in the aquifer are important for groundwater and surface water users in the area because of the interface between the aquifer and the Snake River.

That groundwater is a primary source of late-season irrigation water for many groundwater and surface water irrigators. Sustaining the groundwater in the Eastern Snake Plain aquifer is of paramount importance to everyone, and the economy in southern Idaho depends on it. Growth in southern Idaho has historically been tied to farming and ranching. Water is the beginning point for such development and, also, a focal point for new development.

Tyler Young: The need for surface water users to have access to groundwater was one of the primary reasons for the settlement, correct?

John Simpson: Right. In 2015, the water users and the state recognized that we had an extremely dry spring forecast. The Idaho Supreme Court had recently modified the administrative methodology the director of the Department of Water Resources used to conjunctively manage the water resource. There were some early-season projections of dramatic shortfalls in surface water delivery supplies, which would have necessitated substantial groundwater curtailment. I believe that was the first time that some of the parties realized that action needed to be taken. There was no choice, no legislative bailout. Curtail or find a long-term resolution.

Tyler Young: What is the current status of the 2015 settlement? Specifically, what did the settlement set in motion, and has that been adhered to?

John Simpson: An obligation was placed on the groundwater people to reduce their impact on the aquifer by a certain percentage—a 12–13 percent reduction in their depletions, or consumptive use, on the aquifer. They could accomplish that by changing cropping patterns, reducing irrigated acres, recharging, or converting from groundwater to surface water deliveries. It was a water budget change.

With that water budget change, and in conjunction with the Idaho Water Resources Board’s efforts and funding by the legislature to increase managed recharge, the groundwater level indicators in the aquifer show that we have made some substantial progress over the last couple of years. The decline of the aquifer has stopped, and groundwater levels have improved; we are moving in the right direction toward the 2026 goals that were set in the settlement.

Everyone has played a part, and precipitation has played a great part. We have been blessed with a couple of really good water years, which have made water available for recharge and decreased natural losses from the Snake River, which in turn has reduced the demand from groundwater and surface water users. The climate and the significant water supply changes have had a significant effect on helping us begin changing the outlook that we had just 3 years ago.

More importantly, there are check-ins with a steering committee, comprising groundwater users, surface water users, and the Idaho Department of Water Resources, to make sure that groundwater users are complying with their obligations. Everyone is trying to work together, in part because everyone now realizes that all water users depend on that aquifer, and that if it is not sustainable, everyone is going to take a hit.

Tyler Young: Who are some of the individuals on the steering committee?

John Simpson: There are managers from the surface water delivery entities and members of the groundwater districts. The Department of Water Resources is not an official member of the committee per se, but it participates in the meetings. It is the water users in the area and their representatives who are on the committee.

Every year, they come up with a list of items to discuss, such as compliance; whether every well has a metering device and if not, why; the effect of new transfers and applications on groundwater levels; what other administrative tools we need to properly manage the resource; and whether we can collectively go for additional funding from the legislature to provide opportunities for projects that increase conservation and efficiency. Again, you have water users from both sides of the fence working together.

Tyler Young: Is it safe to say that the water shortage crisis was a catalyst in bringing all the parties to the table?

John Simpson: Well, without the court and the more stringent standards that came out of its decisions, plus a very dry period of time, there was a sense that the junior user could just mitigate its way out of the problem. Again, in 2015 the amount of mitigation required became so great that widespread curtailment was a reality. From 2007 to 2015, when there was an injury determination, the groundwater people could generally go off and find storage water to rent for mitigation.

This water was then delivered to the surface water users through direct delivery to their headgates downriver, which would then be delivered to those people who needed the water. Unfortunately, that did not do anything to address the decline in the aquifer. We were watching the aquifer continue to decline while we were just leasing storage water.

Well, in 2015 it did not look as though there would be sufficient storage water available to lease to address the injury to the senior water rights holders. We still had a declining aquifer, and simply mitigating with storage was addressing the symptoms, not the illness. Only when we started taking action on the aquifer did we start addressing the illness.

Tyler Young: During the mitigation, were the groundwater people worried about the public and its perception of the declining aquifer levels?

John Simpson: Prior to the settlement, there was no directive to have a measuring device on every well. How can someone know how much they are pumping if they do not have a measuring device? Conversely, how are they to know how much they could be conserving? The other part is, as is the case in most places in the country, you have senior and junior groundwater rights.

For years, the senior groundwater rights participated in the mitigation that really benefited the junior groundwater rights. The senior groundwater rights were tired of paying to benefit the juniors, and they wanted the juniors to step up and start mitigating. That has not gone smoothly in all cases. We are still struggling to make sure everyone is participating.

Tyler Young: With the last several years having been good water years, do you feel that Idaho is heading in the right direction, and do you think the measures are sustainable for the future?

John Simpson: We are getting there. Hopefully, people are not becoming complacent because we have had a couple good water years and increases in the aquifer. We do have some outliers who are not complying with their obligations, and there has been a struggle to identify how to enforce those obligations. I think we are moving toward a state where instead of allocating new water rights, we are becoming water managers.

How do we effectively manage the resource to meet existing rights and obligations, all while sustaining the resource? The Department of Water Resources is more a manager of the water supply than an administrator. We have this agreement, and we are trying to put in place groundwater management areas where the director has the authority to require every water user within that management area to develop and submit a plan to ensure the goals of the plan are met. Otherwise, there is curtailment by priority that favors water users who have submitted a plan.

This authority also gives the director enforcement capability with respect to outliers. If you do not know how much you are taking out and how much you are recharging, you could be mining that aquifer. Everyone thought that the Eastern Snake Plain aquifer had an infinite supply of water, and we found that it does not. It does have a very large supply of water, however, and it can recharge quickly. The next part of this planning and management is figuring out how to effectively recharge the aquifer and build up the water supply during high flows so that it can be part of our drought resiliency program.

Tyler Young: Do you have any advice for other states or groups that may be facing some of the same challenges as Idaho?

John Simpson: I think with the climate variability we are seeing, everyone needs to be proactive. Now is the time to be proactive in Idaho and take advantage of the times when we have excess water for storage to protect ourselves against drought and to potentially provide some water for development.

Water is only going to get scarcer, and I think that using history as a barometer for what the future will bring is shortsighted. I do not think that in Idaho, we can look back and say that 2018 was like any specific year from the past. Get the state legislature to help with funding, get the water users to play their part, and use the National Water Resources Association to help get federal funding. IL

John Simpson is a partner at Barker Rosholt & Simpson LLP. He can be reached at jks@idahowaters.com.