In February 2022, local water users reached agreement on the terms of an historic Lemhi River Basin Settlement agreement, which looks to resolve long-standing water use conflict in the basin. In March, both houses of the Idaho Legislature unanimously passed House Bill 749, which codified key terms of the Settlement into Idaho law. The bill was signed by Gov. Brad Little on March 28, 2022.
This purpose of this article is to summarize and publicize the terms of the Settlement to the greater Salmon, Leadore, and Lemhi County community. This article also details the water use conflicts that arose in the basin, precipitating the need for two years of negotiations to reach agreement.
Big-picture, the Lemhi River Basin Settlement Agreement had three objectives: resolving protested water right applications; establishing minimum streamflow water rights; and establishing water rights for the long-time Lemhi Basin practice of diverting high-flow water during the spring runoff.
In achieving the three objectives, the parties to the Settlement agreed to two fundamental principles: one, the Settlement is a voluntary agreement; and two, it has no effect on existing water rights in the basin.
The Settlement outlines two overarching "Water Right Settlement Agreement Goals:" ?
- Business Goal: Preserve and enhance farming and ranching lifestyle and promote economic develop in the Lemhi River Basin.
- Biological Goal: Conserve, restore, and enhance sufficient habitat to sustain viable fish populations in the Lemhi River Basin.?
Carl Ellsworth, a longtime Lemhi rancher, said he's pleased that the agreement will allow local water users to apply for high water flows in the future. "This is something that's been important to us for a long time," he said. "We appreciate all of the work that everyone did to reach the settlement."
In general terms, the Settlement and the associated legislation do the following:
" Establishes a two-year period for Lemhi Valley farmers and ranchers to apply for and perfect water rights that authorize the diversion of high-water flows as a legitimate water right under the Idaho law. The diversion of high-water flows has been a historic practice in the basin, but one that the courts have not previously been willing to recognize in water rights.
Local water users have wanted the ability to obtain high flow water rights recognized under Idaho law dating back to the mid-twentieth century. The legislation describes the beneficial use associated with the diversion of high flows in the Lemhi Basin as Lemhi Basin Stream Flow Maintenance. ?
" Authorizes and directs the Idaho Water Resource Board (Water Board) to appropriate a minimum streamflow water right of 420 cubic feet per second on the Lemhi River at McFarland Campground, to be administered by the state Water Board. The season of use will be March 15 to July 6. The minimum streamflow water right is restricted to be used only two times during a 5-year period for three consecutive days. The purpose of the McFarland Campground minimum streamflow water right is to clean-out spawning gravels with high springtime flushing flows, officials said. The Water Board will have to apply for the minimum streamflow water right before this provision takes effect.
" Authorizes and directs the Water Board to appropriate and hold additional minimum streamflow water rights on Big Timber, Bohannon, Canyon, and Hayden Creeks to benefit Snake River Chinook and steelhead in the Lemhi Basin, which are protected under the Endangered Species Act. Additional minimum streamflow water right details and limitations are provided in the Settlement. These minimum streamflow water rights will be junior to all existing water rights.
" Stipulates the terms for the evaluation and approval of existing protested water right applications on Big Timber, Little Timber, Big Eightmile and Mill Creeks. Thus, the Settlement resolves the protects that have been filed against water rights applications filed by farmers and ranchers to irrigate new land.
" Commits the Water Board to explore additional water management strategies in the Lemhi Basin, including cloud seeding, aquifer recharge, and investigation of new storage reservoirs.?
Consistent with the Settlement and accompanying legislation, the Idaho Department of Water Resources (IDWR) will begin accepting new applications for Lemhi Basin stream flow maintenance water rights (i.e., water rights for high flow diversions) beginning on July 1, 2022. Applications can be submitted through July 1, 2024.
The Settlement also calls for the creation of a Steering Committee comprised of community stakeholders to advise the IWRB and the IDWR in implementing the Lemhi River Basin Settlement Agreement.
What happened? Why was there a need for Lemhi River Basin settlement talks?
Water management has been challenging in the Lemhi River Basin for many decades because:
1) There is high demand for water for farming and ranching;
2) The basin can experience low water flows in times of below-normal snowpack and drought;
3) the basin has little to no surface water storage to augment water supply during drought conditions;
4) The Lemhi River Basin contains some of the best spawning and resident habitat in Idaho for Chinook salmon, steelhead, and resident bull trout populations, all of which are protected under the Endangered Species Act. Since the 1990s, tens of millions of dollars have been invested in approximately 130 fish-habitat improvement projects, including fish screens built by Idaho Fish and Game; and
5) New Lemhi River Basin water rights must be appropriated and administered consistent with the 2004 agreement for the federal National Wild and Scenic Rivers water rights on the Salmon River.
In the past, the Water Board, working through its Water Transactions Program, has worked with Lemhi ranchers to modify points of diversion on many Lemhi tributary streams to re-open approximately 75 miles of spawning habitat on Big Timber, Bohannon, Canyon, and Hayden creeks. In addition, over the last 25 years, the Water Board has purchased water in strategic locations in the Lemhi Basin from willing sellers to supply water to existing minimum streamflow water rights. One prominent location is the L-6 Diversion on the Lemhi River.
Given the many existing demands on water resources in the Lemhi River Basin for irrigation, agriculture, and fish, any new applications for consumptive water use have a potential for causing water use conflicts.
Once such conflict arose in October 2018, when eight water users filed 14 new applications for surface water rights to irrigate 1,619.5 acres of new land in the Lemhi Basin.
The 2018 applications served as a "tipping point" that brought several water issues into focus in the Lemhi Basin, officials said. Water users expressed concerns about the new water applications causing harm to:
" The historical practice of diverting high water flows to "store" water in the basin; and
" Existing minimum streamflow water rights established in the Lemhi River Basin to benefit the endangered Snake River Chinook, steelhead and bull trout.
Sensing a bitter conflict was imminent, Lemhi Basin water users asked the Idaho Legislature in 2020 to direct the Water Board and IDWR to "to work expeditiously with local water users to develop a comprehensive settlement that resolves current tensions and conflict that are the result of competing water supply demands in the Lemhi River Basin." (Senate Concurrent Resolution 137, passed in the 2020 legislative session).
Over the last two years, long-time water law attorneys Clive Strong, retired from the Idaho Attorney General's Office, and Norm Semanko, leader of the water law practice group for Parsons Behle and Latimer and former executive director of the Idaho Water Users Association, led a series of more than 16 facilitation meetings with Lemhi Basin water users and state and local agencies, with the ambitious goal to resolve all of the existing conflicts. The meetings were supported by Water Board and IDWR staff, including former Water Board Chairman Roger Chase and current Chairman Jeff Raybould. The meetings were also supported by District 8 Idaho House members Rep. Dorothy Moon, R-Stanley, and Rep. Terry Gestrin, R-Donnelly.
The agreement has many detailed provisions, all of which can be viewed on the IDWR website: idwr.idaho.gov/legal-actions/settlements/lemhi-settlement.
What are high flow diversions?
In the spring, when the snow melts from the mountains, ranchers and farmers in the Lemhi River Basin have historically diverted high water flows into ditches above the edges of pasturelands and hayfields at the start of the irrigation season.
The diversion of high water flows has been an important way to "store" water in the valley and raise the water table for growing hay throughout the summer, local ranchers say.
However, judges presiding over the Lemhi Basin and the Snake River Basin adjudications refused to recognize the historic practice of diverting high water flows with decreed water rights. Most recently, the Snake River Basin Adjudication (SRBA) district court ruled in 2012 that "Idaho case law precludes the high flow claimants from seeking to establish high flow water rights in the SRBA as a matter of law."
The Lemhi Settlement Agreement and HB 749 changed Idaho Code to allow water users to apply for water rights for high flow diversions, establishing the practice as a Lemhi Basin streamflow maintenance use.
IDWR is planning to host a workshop in the Lemhi Basin to assist water users in applying for water rights in September, final dates, and locations still TBD. Although applicants can file water rights for historical high flow uses starting July 1, IDWR encourages water users to wait and attend an upcoming workshop where applicants can meet in-person with IDWR staff to review their water use practices, ask questions, and file and pay for their water right applications.
Originally published by Intermountain Farm & Ranch.
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