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Bill Calls for Diversion from Dams to Recharge Snake Aquifer by Associated Press The Times-News, March 15, 2006

BOISE -- Legislators may be forced to choose between replenishing the Eastern Snake Plain Aquifer and avoiding a hike in Idaho Power customer electricity bills.

On Wednesday, a House committee will hear House Speaker Bruce Newcomb's legislation that would divert Snake River water from hydroelectric dams to replenish the aquifer. The natural underground reservoir, which provides water to cities, farmers and industries in the southeastern third of the state, has been depleted by six consecutive years of drought.

Newcomb, R-Burley, is basing the bills on a March 9 opinion from the Idaho attorney general that found the state could take water from the river as long as the state's biggest utility was given enough water to satisfy minimum limits set in a 1984 pact known as the Swan Falls Agreement. Then, the state said Idaho Power had a right to 5,600-cubic-feet-per-second minimum flow during winter months.

Ten years later in 1994, however, lawmakers said Idaho Power had a right to up to 17,250 cubic feet per second in winter -- and that Idaho Power's water right takes priority over recharging the aquifer.

In his opinion, Attorney General Lawrence Wasden wrote that Idaho lawmakers were wrong in 1994 -- that the utility only had a right to water up to the 1984 limit.

"Idaho Power subordinated its hydropower water rights to all future beneficial uses, including but not limited to aquifer recharge," Wasden wrote.

That led Newcomb to introduce the two bills, needed to correct the 1994 Legislature's error.

Idaho Power officials disagree and contend the 1994 agreement should take precedence.

Recharging the aquifer was not an issue in 1984, and the state cannot now make it an issue and give recharging the aquifer priority over the utility, said Idaho Power spokesman Greg Painter.

The company will challenge the Swan Falls agreement in court if the Legislature takes its water, Painter said, adding that if Newcomb gets his way, the utility's 455,000 customers could wind up paying more for power.

The debate comes nearly a year after Karl Dreher, the director of the Idaho Department of Water Resources, was asked to settle an ongoing dispute between surface and groundwater users. The battle has since landed in district court.

Attorney Tom Arkoosh represents members of the Surface Water Coalition. While his clients support the concept of recharge, they dispute Newcomb's plan for accomplishing it.

"If the bill passes -- the people who pay for recharge will be Idaho Power's consumers," Arkoosh said.

Instead, Arkoosh said, the state should look to strict administration of the prior appropriation doctrine -- the tenet that those with the oldest water rights get to fill their water claims first. If the state held solely to the doctrine, groundwater users with junior rights would face curtailment.

Lynn Tominaga, executive director with the Idaho Ground Water Appropriators, acknowledges that there are both good and bad ramifications in Newcomb's legislation. Idaho Power would lose some power generation now -- but it comes at a time when there's plenty of electricity available in the market, Tominaga said. However, the water will come back later on, to the benefit of both the power company and the aquifer.

"If you're looking at this as what is most beneficial to the state, recharge makes sense," Tominaga said.

Gov. Dirk Kempthorne is attempting to begin a pilot program to recharge the aquifer through an agreement with Idaho Power and other water users that would take advantage of the current good water year.

All 19 Idaho river basins have received higher-than-average precipitation since October, according to meteorologists with the Natural Resource Conservation Service.

Kempthorne says that makes the timing right for a voluntary pact that would avoid a legal battle.

"We're working with all the parties to see how we can do recharge when we've got all this snow in the mountains," said Mike Journee, Kempthorne's press secretary.

Before Newcomb's bills, Idaho Power had agreed to divert up to 40,000 acre feet of water into two canals in April, for which the company would be paid up to $1.6 million.

The sum represents the value of electricity Idaho Power says the diverted water would produce if it were released to pass through the dam.