May 2009
Idaho Power working with state to refill aquifer

A March 26 announcement that Idaho Power and the state of Idaho had signed a tentative accord has state officials hailing the agreement as a reaffirmation of the state’s ownership of the Snake River water flow and the state’s attempts at managed recharge of its depleted Eastern Snake Plain Aquifer.

The proposed settlement, issued by the state as the Framework Reaffirming the Swan Falls Settlement, is seen by state officials as re-affirming the State of Idaho’s right to designate how Snake River water flow is used versus Idaho Power’s use of water for hydropower production.

This agreement hinges on passage of legislation submitted before the Idaho Legislature on March 27 and was passed unanimously by the Senate Resources committee on April 1.

According to the press release issued from the office of Idaho Governor C.L. “Butch” Otter, “the proposed settlement … resolves the litigation by clarifying that the water rights held in trust by the State are subject to future upstream beneficial uses, including aquifer recharge.”

In the Memorandum of Agreement both the State of Idaho and Idaho Power agree that the implementation of the Eastern Snake Plain Aquifer Comprehensive Aquifer Management Plan (ESPA CAMP) will have an effect on Snake River flow characteristics above and below Milner Dam. The Swan Falls Settlement “reconfirmed that the minimum daily flow at Milner Dam shall remain at zero.”

The original Swan Falls agreement, signed in 1984, between the state and Idaho Power, provided for minimum flow at Swan Falls of 3,900 cfs during the irrigation season and 5,600 cfs during the non-irrigation season while the Idaho legislature established a trust granting the state the authority to allocate the trust water.

Idaho Power has 17 hydropower plants located on the Snake River and its tributaries.

In 2007 Idaho Power filed suit in the Snake River Basin Adjudication challenging the meaning and application of the Swan Falls agreement. At issue was the state’s attempts to recharge the depleted Eastern Snake Plain Aquifer and avoid repeated water calls by senior water right’s holders against junior water right’s holders.

Implementation of the first phase of the ESPA CAMP was imperiled by the threat of ongoing litigation.

“That’s a major agreement,” said David Tuthill, director of the Idaho Department of Water Resources, discussing the agreement that took two years to complete.

“Our agency was involved tangentially but we were not involved in the central negotiations,” said Tuthill, “this was a move that I’m very supportive of.”

Tuthill said passage of the legislation is important, that without the agreement, the litigation would have probably taken years to resolve.

He lauded the agreement but cautioned that the agreement in and of itself does not resolve the state’s water problems.

“This doesn’t end the curtailment possibilities, this document in itself,” Tuthill said, “but it does clarify that based on the ESPA CAMP, where it calls for Phase One recharge to be up to 100,000 acre feet per year and Phase Two to be up to 250.000 acre feet per year, Idaho Power has agreed to support those targets.”

The long term objective of ESPA CAMP is to incrementally achieve a net water budget change of 600 thousand acre-feet (kaf) annually by the year 2030.

Lynn Tominaga, Executive Director of the Idaho Groundwater Appropriators Association and Idaho Irrigation Pumpers Association, expressed satisfaction with the agreement and sees the state and Idaho Power coming out ahead.

“I think we’re happy, the ground water users, it means the state can come in and manage the resource like it should instead of having the power company come in and try and do this,” Tominaga said.

“The winner is the state and Idaho Power,” he said, “because they were going to challenge the recharge issue not only in district court but all the way to the Supreme Court. It saves the state from not having to defend it (the potential appeal) but also Idaho Power and the rate payers for not having to go through litigation to move forward. It saves everyone money.”

Clive Strong, leads the Natural Resources Division in the Idaho Office of the Attorney General, and has been in the AG’s office for 25 years.

Strong worked on the original Swan Falls Agreement in 1984 and headed the state’s team in the recent litigation with Idaho Power that resulted in this agreement.

Strong said that the agreement recognizes state control over natural resources as well as recognizing Idaho Power’s importance to the state.

Strong said the agreement “reconfirms that under state policty the state can take the river down to zero flow at Milner. Not that it will but that it has the ability to do so.”

Strong said that basically the agreement says that the river is divided at Milner. That it is a source issue. Water rights above Milner is not affected by water rights below Milner.

Strong emphasized that the agreement not to go over 175,000 acre feet of managed aquifer recharge annually without legislative approval is based on a ten year annual average.

“It’s a rolling average,” said Strong. “Let’s say that we did 400 kaf in one year. Then the next year we do another 400 kaf, well, then, over a rolling average at some point in time you’ve got to average out to 175 kaf. I don’t know if we’ve got this detail worked out yet but it’ll be some sort of period of time in which that average annual basis will be determined,” he said.

“We’ve got three things we need to do now,” Strong said, referring to the agreement. “We need the legislature to approve the three bills. Then we have to get the Water Board to approve the Memorandum of Agreement. Then we ask the court to enter the degrees and once those three things are done, then the settlement is complete”

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