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It's Idaho Power vs. Idaho
in Latest Water Lawsuit

by Matt Christensen
Times-News, May 20, 2007

TWIN FALLS - The latest lawsuit over water has pitted the state against Idaho's largest utility company.

It's a high-stakes game of politics, power and profits that has both sides pointing fingers in a case that's sure to have repercussions for Idaho water users and perhaps power company customers.

Last week, former House Speaker Bruce Newcomb called the case "Armageddon."

The lawsuit will revisit the 1984 Swan Falls Agreement - a deal that set minimum stream flows in the Snake River and established a state-managed trust for excess flows. Idaho Power filed suit May 10 against the governor, attorney general and state water director, alleging the utility and state have committed a "mutual mistake of fact" in assuming trust water existed in the first place.

Newcomb and the state say the suit is a power grab on the part of the utility - a move to usurp the sovereignty of Idaho's most precious natural resource. Idaho Power says the suit is simply a move by the company to assert its water rights and calls the state irresponsible for politicizing the issue.

"It's a sad day for Idaho when you have the attorney general and former speaker trying to vilify Idaho Power," said Greg Panter, vice president of public affairs for the utility. "This is clearly an attempt to inflame this issue."

Politics aside, the suit's outcome could yield dramatic effects. The power company says it will raise customer rates if it loses. If the state loses, its power to regulate water could be weakened.

Also at stake is the health of the Eastern Snake Plain Aquifer, the underground network of waterways that holds the bulk of Magic Valley's water supply. The state wants to put the excess trust water back into the aquifer, which is called recharge.

During the 2006 legislative session, then-House Speaker Newcomb pushed legislation that would've given the state a green light to recharge using the trust water. The bill, House Bill 800, was defeated, due in part to a strong lobbying effort on behalf of the power company.

Panter said he's not opposed to recharge in general - even though he's skeptical about its effectiveness - but he doesn't want the state using water he says belongs to the power company.

Clive Strong, chief deputy in the attorney general's office for natural resources, said Idaho Power surrendered part of its water rights to the state trust in the Swan Falls Agreement and the state can do as it pleases with the water - including recharge.

Panter said that's not true. Idaho Power agreed to surrender water to the trust, but now it maintains it never gave up the legal right to that water. The power company agrees with the state that the agreement established minimum stream flows for its hydropower operations at 3,900 cubic feet per second during the summer and 5,600 during the winter.

The disagreement over the trust is now before the courts, and both sides say it could be years before the matter is resolved. And even when a decision is rendered, it'll probably do little to quell decades of legal battles over water. Whether the aquifer has been over-allocated by the state, or there is simply less water in the system, resolution of Idaho's water woes is a long way down the road.

Matt Christensen covers the environment.
It's Idaho Power vs. Idaho in Latest Water Lawsuit
Times-News, May 20, 2007

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