Legislator proposes wather-rights bill

Convinced that a Washington-based utility can someday cause economic trouble in western Montana, state Rep. Verdell Jackson, R-Kalispell, is proposing legislation that would subordinate power generation water rights to all other water rights in Montana.

The draft bill is squarely aimed at Avista, the Spokane-based utility that owns and operates the Noxon Rapids Dam on the Clark Fork River, just downstream from Thompson Falls.

But on the advice of the legislative legal advisers, the bill would result in an amendment to the Montana Constitution because it should apply to all hydropower producers across the state rather than Avista alone.

Jackson plans to introduce a second bill that would direct the state to contest all hydropower water rights in excess of 5,000 cubic feet per second, by contending that those rights should be based on actual water availability and use rather than past appropriations of water.

In Avista's case, Jackson contends that the company has been incrementally appropriated water rights that exceed average flows in the Clark Fork River. And he challenges any claims by the company that growth and water consumption are somehow depriving Avista of its water rights.

That challenge is based on research Jackson pursued on historic water use across the Clark Fork Basin. Jackson reviewed 92 years of U.S. Geological Survey water flow data on the Clark Fork River at Plains, upstream from Avista's Noxon Rapids Dam.

"Examining the 92 years of flow data over any averaging period one chooses - annual, monthly, or daily - average flows in the lower Clark Fork River have increased since Noxon Rapids Dam was built," he writes in his research paper.

"One can, therefore, conclude that the flow data do not show any evidence that the water supply for Avista's dams is being negatively impacted and that no measurable negative impact on Avista's water rights occurs as a result of new water rights or farm and ranch land irrigation during the summer months or at any other time."

Operating as Washington Water Power, the company from 1950 to 1974 accumulated year-round water rights on the river totaling 50,000 cubic feet per second - roughly twice the river's average flow rate of 20,000 cfs.

Translated to a yearly volume, the water right amounts to 29 million acre-feet per year. That volume has never been available in the 92 years of flow records - the largest amount on record is about 20 million acre feet.

Jackson speculates the company's water rights were systematically designed and acquired to match maximum flows on the river for maximum power production. But 50,000 cfs is available only a few days per year, and some years not at all.

Jackson contends the company has been appropriated far too much water over time.

In past discussions of a state task force charged with developing a state water management plan, Jackson said company officials have advocated closing the Clark Fork basin to new water uses.

Largely because of Avista, a temporary closure was enacted in 1999. The last straw for Jackson came this year when Avista challenged a new water right request from a power co-generation facility in Thompson Falls.

While it may be difficult for Jackson to demonstrate any imminent threat that Avista poses to new water uses in the Clark Fork Basin, he contends the company will someday flex its gigantic water right.

Neil Coldwell, Avista's liaison with Montana state government, rejects Jackson's claims.

Coldwell said Avista is hardly an "out-of-state" company because it has invested more than half a billion dollars in its Montana facilities during more than 50 years of doing business in the state. It has a sizable roster of Montana employees, he said, and rather than being a hindrance to economic development in western Montana, the company has been an advocate for development.

Avista has a long-term presence in Montana, he said, "and you don't stay in this business by warring with people in the state."

Challenging the new water right for the Thompson Falls power facility was a "special case," he said, that came about because the water-right request came with language that could be interpreted in a fashion that would diminish Avista's water rights.

He said the company has pursued negotiations to clear that up.

Coldwell said the company has consistently participated in Montana water planning forums and he has directly participated in the task force developing a state water management plan. He contends that task force, which Jackson created through legislation two years ago, did not want to engage in measures that would diminish hydropower water rights.

Water rights are essentially a property right, he said, and if the state diminishes those rights it would amount to a taking that would have to be compensated by the government.

If Jackson's legislation gets any traction in Helena, it is bound to attract considerable opposition from the smallest to the largest hydropower companies that operate in Montana.

But Jackson already has lined up support for his bills. A co-sponsor will be Sen. Ken Toole, D-Helena, a liberal in the state Senate's majority party who has typically aligned against Jackson and other conservative Republicans.

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com