MITIGATION

Our firm crafts mitigation plans for private and public entities to protect junior water rights from curtailment, or to provide mitigation in order to develop new water rights or change existing water rights. Candice and Chris represent industry, individuals, municipalities, and home owners associations in identifying where their water rights are vulnerable to curtailment, could be lost due to non-use, or interference by others.  Chris and Candice proactively work with their clients to develop strategies to protect their water rights through leases, transfers, and mitigation. Our firm assists clients in identifying opportunities to lease or use their water rights in order to allow others to mitigate in order to develop new water rights or change existing water rights.

In times of water shortage, the Director of the Idaho Department of Water Resources is required to distribute water to senior users. Idaho Code §§ 42-602; 42-607. This means, if you are a junior water user, you will be curtailed if there is not enough water to satisfy senior water rights. In a water supply system that only involves surface water, this administration occurs every year without much controversy. However, in a water supply system that integrates ground water and surface water, the curtailment of ground water rights occurs only after the Director has determined that ground water users are causing “material injury” to senior users and issues a “curtailment order.” IDAPA 37.03.11.042. Ground water users can respond to the curtailment order by filing a “mitigation plan” for approval. IDAPA 37.03.11.043. The Idaho Department of Water Resources must advertise and approve the mitigation plan before the junior ground water user can continue (or resume) pumping.  IDAPA 37.03.11.043.  Once a mitigation plan is approved, the junior water user can operate pursuant to that mitigation plan and is protected from curtailment.  IDAPA 37.03.11.042.

While not related to conjunctive management, mitigation is also needed in many systems when a new water right is created, or an existing water right is transferred to a new location. The basis of this mitigation requirement is to ensure no injury to existing water rights. Idaho Code § 42-222.