A free-flowing issue 

Water rights

Montana Sen. Verdell Jackson, R-Kalispell, has sounded an alarm.

It’s one he’s tried to sound for years, since learning that Avista Corp. holds rights to 50,000 cubic feet per second of water flowing down the Clark Fork River, an amount only met during spring runoff, or about two to three weeks per year.

Avista, a Spokane-based energy company, owns the Noxon Dam, which generates hydropower from the Clark Fork for Avista’s Idaho customers. For nine years, Jackson says he’s warned that Avista’s water rights give it control over the Montana Department of Natural Resources’ (DNRC) ability to issue new water rights in the Clark Fork Basin, which includes the Flathead, Missoula and Bitterroot valleys.

But in the 2005 and 2007 legislative sessions, his bills to limit Avista’s control died in committee. Jackson says each failed to garner support from colleagues because the issue “Isn’t on their radar.”

Now Jackson is working to make Clark Fork Basin residents aware of a blip—a December decision made by a DNRC water rights hearing examiner that illustrates the company’s influence. Last year, Avista opposed the Thompson River Lumber Company’s request for 250 gallons per minute from the Clark Fork River, less than one- hundredth of a percent of the river’s average flow, to generate electricity at a small plant 40 miles from Avista’s dam.

Avista contended that, over a 20-year period, the loss of this water would cost it $92,000. The DNRC then determined, according to its ruling, the Thompson River Lumber Co. hadn’t demonstrated “the rights of prior appropriators would not be adversely affected,” and denied the application.

Kurt Hafferman, regional manager for the DNRC’s water resources office, says the decision creates a standard for requesting new water rights that could be difficult and costly to meet. The impact on Avista, he says, will now have to be considered with every proposal for a new water right.

At this point in the legislative session, Jackson says he may have to wait until 2009 for another crack at limiting Avista’s water rights. In the meantime, he plans to keep sounding the alarm.
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