“Well, I think the sign of any good agreement is that nobody's happy,” says Travis Thompson, an attorney for the Surface Water Coalition (SWC). “That way you know something's been done right.
“But I do think there is optimism going forward,” he adds.
Thompson's remarks reflect the sentiment surrounding the new mitigation agreement between surface water canals in Magic Valley and users of groundwater from the Eastern Snake Plain Aquifer. The agreement was finalized in November, nearly six months after a massive water curtailment order sent shockwaves through Idaho’s agricultural community.
“The prior settlement agreement reached in 2015 did not spell out how to implement certain terms of the agreement in practice,” says T.J. Budge, an attorney for the Idaho Groundwater Association (IGWA). For example, while the prior agreement required groundwater users to conserve 240,000 acre-feet annually, it did not prescribe the baseline from which groundwater conservation is measured or whether averaging may be used to measure compliance. This ambiguity caused significant friction, resulting in several lawsuits over interpretation of the 2015 agreement.
Having learned from the past, Budge notes that this time around, surface water users and groundwater users wrestled with the finer details of how groundwater conservation is measured and implemented.
“The negotiations were more in-depth,” Budge says of the experience. “There was just a higher degree of scrutiny, and the agreement spells out critical details in how you implement the terms.”
Throughout much of the summer, stakeholders met frequently, usually every two weeks, in Pocatello and there were many informal discussions in between. Initially it was described as “too many hands in the cookie jar.” It wasn’t until the mitigation committee was formed under Lt. Gov. Scott Bedke and the Idaho Water Resource Board’s chairman, Jeff Raybould, that it really started to function well.
“Each meeting was always civil,” says Roger Blass, a retired grower in Filer who serves as the chairman of the Twin Falls Canal Company. Both sides knew there was a need to mitigate water supply shortages to the Surface Water Coalition, and IGWA acknowledged a need to stabilize the ESPA. Both sides were willing to come to the table and try and do what was best for the aquifer and the state’s economy, he says.
Key provisions of the new agreement
Groundwater conservation
A key term of the agreement is that groundwater users will continue conserving 205,000 acre-feet annually, a target met from 2016 to 2024 (on average). The previous agreement set a goal of 240,000 acre-feet but didn't account for cities and other non-IGWA entities. The new agreement builds on past efforts, which have helped stabilize the aquifer to 2015 levels. It also includes more detailed guidelines for defining baselines, measuring conservation and using tools like aquifer recharge to offset pumping. Groundwater districts have also agreed to monthly measurements.
Conservation can now be averaged over four years, which was a major point of dispute with the 2015 agreement. This approach gives individual water users the flexibility to manage crop rotations and fluctuating water conditions over the four-year period. If water users use up their allotment early, they will be shut off unless they are able to acquire additional water from neighbors or their groundwater district.
Thompson further explains, “Now, if a user doesn't comply, there's a built-in process where the department or the watermaster would be involved. We're not arguing over whether they complied or not; it's pretty set in stone. Each user will have a four-year block of water, and they'll know – they should know – every year, 'OK, this is what I have left.' So when they come to that last year, if they don't have enough water for a high-consumptive crop, they're going to have to make choices to do something different.”
Storage water deliveries
Groundwater districts will deliver up to 75,000 acre-feet of storage water annually to the SWC, as determined by the director’s annual injury findings. This replaces the 2015 agreement’s fixed delivery of 50,000 acre-feet, which often led to unnecessary expenses and insufficient supply during some years. The revised terms allow unused storage water to be repurposed for aquifer recharge or other uses, ensuring more flexibility and efficiency.
Incentivizing Snake River flow improvements
The agreement incentivizes projects to enhance Snake River flows between Blackfoot and Minidoka Dam, which benefits the SWC by improving spring flows downstream of American Falls Reservoir and to American Falls Reservoir.
Additionally, the parties agreed to jointly urge the Idaho Water Resource Board to raise its ESPA-managed aquifer recharge target from 250,000 acre-feet to 350,000 acre-feet, with a focus on recharge upstream of American Falls Reservoir, which has the greatest benefit for the SWC. Kirt Schwieder, a grower from the Idaho Falls area, emphasizes the importance of this shift. “If you put it down in the Magic Valley, it comes out at Thousand Springs, but it doesn’t help us at American Falls. [Recharge] must be focused on the Upper Valley – Idaho Falls, Shelley, Blackfoot and American Falls – those areas are where we need to build out recharge sites,” he says.
Schwieder, who has served as treasurer of the Bonneville-Jefferson Groundwater District since 2016, was involved in drafting the new mitigation plan. “We’ve put this one together very well compared to the last one,” he says. “We’ve learned from the past, we've put together a ‘new bus,’ and now we’re going to ride this new bus into the future and see where it takes us. I feel like it’s pointed in the right direction, and one of those directions is recharge.”
The previous mitigation plan aimed to raise groundwater levels, while the new plan prioritizes stabilizing the aquifer. In addition, the new plan incentivizes groundwater users to take additional actions that will improve flows in the Snake River between Blackfoot and Minidoka Dam, which the SWC relies upon.
Another important detail in the new mitigation plan is how compliance is managed. Unlike the previous plan, where noncompliance by one district resulted in all districts being out of compliance, or where noncompliance by one farmer could put other farmers in the district at risk of curtailment, the new plan holds each district and each farmer accountable for meeting their own obligations.
“I am optimistically satisfied with it,” Blass says of the new mitigation plan. “You always want to see more, and I’m sure the other side wanted to see a little less, but through the negotiations what we ended up with, I'm pleased with it.”
Moving forward
While a 12-year term was initially discussed, the parties ultimately agreed to establish renewable four-year terms instead. This shorter duration allows stakeholders to regularly meet and review the plan's effectiveness, with the expectation that it will automatically renew for another four years if it performs as intended. The new plan is effective as of Jan. 1, 2024.
“One of the things we put in the agreement was this is not perpetual anymore,” Schwieder says. “Either one of the parties can jump off this bus in four-year increments. So, in 2027 if one of the parties is not happy with the agreement, they can jump off. But you know what that means? Prior appropriations. We all walked up to the edge of that cliff and said, ‘I don't think any of us want to go there.’ Hopefully, that idea going into the future will make both parties want to continue to work together.”
Stakeholders agree the plan is a step in the right direction, emphasizing its adaptability for the future. “Our hope is that this is the program for years and years to come, until there's no problem anymore, potentially decades. But if it's not working, on either side of the table, there are off-ramps… that would force everybody back to the table to address whatever concerns may exist at that time,” Budge says.
Budge acknowledges that Mother Nature swings the biggest bat when it comes to water supplies. He emphasized that conservation efforts have already demonstrated measurable benefits in stabilizing the aquifer and securing water supplies over the past few years.
“Negotiations are hard. It was tedious and it was long, and it was grueling,” Schwieder says of the experience. "There was a lot of give and take. … In the end, both parties walked away from that table feeling like we all gave some concessions, but that means we probably did do it right. I've never been in negotiations quite like that.”