Idaho Power has no claim to water above Milner Dam

Southern Idaho is semi-arid and highly dependent upon the waters of the Snake River. Most of the communities of any size in Southern Idaho were founded and grew up along the course of the Snake. Agriculture is the economic powerhouse of Idaho and this would not be the case without ample supplies of water, either in the Snake River or in the vast underground aquifer located along its north side.

Because it is such a precious, life-sustaining resource, many battles have been waged over water in the history of our State. One of the most intense water fights began in early 1983, just as I took office as Idaho Attorney General. Despite a long-standing promise to subordinate power production to other uses of Snake River water, Idaho Power Company sought and had just obtained a court ruling that essentially gave it control of the river. The ruling, often called the Swan Falls decision, touched off a ferocious battle that was waged between the State and Idaho Power until a settlement was reached in 1984 that restored the State’s control over the flows of the Snake River.

There were a number of hotly-disputed issues between the State and Idaho Power in the Swan Falls fight. One issue of critical importance to folks in Eastern Idaho was whether the power company could lay claim to waters upstream from Milner Dam, which is about 14 miles west of the City of Burley. Myself, Governor Evans and almost every upper valley legislator strongly opposed any claim by Idaho Power to any waters, either in the river or in the adjacent aquifer, above Milner Dam. We insisted that the flow of the river could be reduced to zero at Milner, without any claim or objection by Idaho Power, so that the river waters could be stored or utilized for the benefit of those living upstream. It was essential that these waters be safeguarded for communities, farms, businesses, and general economic growth in the upper valley.

Eastern Idaho communities won that fight in the settlement agreement, in the subsequent adjudication, in later legislative and administrative decisions, and in rulings in the Idaho Supreme Court. It was firmly established that Idaho Power has absolutely no claim to any waters arising upstream from Milner Dam.

Because the waters in the aquifer had been seriously depleted by excessive pumping over the years, the State conceived a plan to use some of those upstream waters to recharge the aquifer. The plan was developed and implemented in 2008 with the support of a broad range of water users, including groundwater users, senior canal companies and Idaho Power. It has been remarkably wise and successful. It is essential to continue and expand the program for the benefit of the entire State.

Unfortunately, the Idaho Water Resource Board agreed last year to allow 200 cubic feet per second of water to flow through Milner as sort of a one-off deal with the power company. Now, Idaho Power is back, seeking a similar release for an additional year. This mustn’t be allowed.

Aquifer recharge is more important than the single-use purpose of generating extra profits for Idaho Power. If the aquifer is restored to good health, it will benefit every water-using interest in Southern Idaho. Idaho Power will benefit because aquifer flow eventually makes its way back to the river to generate electricity.

Those in power in the Legislature should not pressure the Water Resource Board to go along with the power company’s request. It is contrary to the State Water Plan and, more important, decidedly against the best interests of communities whose lives and livelihoods depend on these precious waters.

My book about the Swan Falls water fight, A Little Dam Problem: How Idaho almost lost control of the Snake River, provides further information about the critical importance of the Milner zero flow policy.

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4 thoughts on “Idaho Power has no claim to water above Milner Dam”

  1. How do Federally Reserved water rights (if they exist) fit into (or not) the the Swan Falls Agreement?

    I recall sitting across the table from Tom Nelson (RIP), who was another class act, as he was representing the interests of Idaho Power.

    Occasionally Keith Higginson would be present from IDWR. I was the annoying mosquito in the room having absolutely no effect as I recall — — the DOI representative for the Deer Flat FWS Wildlife Refuge. 😳

    Long time ago…

    1. Roy: The federal reserved rights were all adjudicated in the Snake River Basin Adjudication and are included in the Final United Decree, exceeding 275,000 pages. Makes good bedtime reading. Best wishes, Jim

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