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. Western States Water Council Legal Committee Washington, DC March 27, 2006 Susan Cottingham: Do you think the new head of the Department of Interior may be more approachable on the issue of Indian water rights? Karl Dreher: We have to get a change ofthinking at OMB. I'm not sure what it will take to get that. Idaho Karl Dreher reported that in Idaho, the Lieutenant Governor automatically succeeds the Governor. 60% of the power in Idaho comes from hydropower. Through our history, Idaho Power has complained. There is a major contention between Idaho Power and irrigation in the southern part of the state. In Idaho's constitution, there is a provision that allows the state legislature to condition water rights for power. The reason is that when you establish a water right, you are establishing the maximum amount of power that can be used. The water rights are at the limit. The issue of subordination erupted in the 1980s, when they tried to make hydropower rights subordinate to other uses set forth in the constitution. It failed and in its place aborted the Swan Falls agreement. Above the minimums, Idaho Power's rights were to be assigned to the state. The state would hold title to those rights, which would be held in a trust for the people ofIdaho. . That is what triggered the Snake River Basin Adjudication. Although much remains to be done, the end is now beginning to be in sight. There is another adjudication about to begin in Northern Idaho. Rights held in trust are subordinate to all future beneficial uses authorized by the state. At that time, recharge was a recognized beneficial use. In 1994 the legislature extended who could hold a water right. Prior to that it had to be held by a recharge district. The Swan Falls agreement extended the benefits of holding a water right to other entities. Idaho Power got a provision inserted in the language that made recharge secondary to rights that had been subordinated under the Swan Falls agreement. After 1994, the power rights were not subordinated to the minimums due to reductions in surface water use. Larger snowpack this year than the past 6 years. House speaker is retiring. It was the Swan Falls agreement in the 1980's that made him get into the political arena, and he is hell bent on fixing the 1994 agreement. People have forgotten reality in the state. Very contentious. It probably is true that in 1994, the state relinquished a right, but under the Swan Falls agreement, the state does hold title and it can do whatever it wants to do with that water. Norm Semanko: In the meantime, there is essentially no recharge occurring. Karl Dreher: Well, there is some recharge occurring, just not under this bill. The way it's occurring is that beginning March 15th the irrigation rights begin to come into priority and we encouraged the canal companies to begin diverting water as soon as they could for irrigation under the rights, to charge the system and of course, that will produce it's recharge. Idaho Power, or others are free to file a complaint saying that while they're diverting the water within the irrigation season they really don't need it and like all western states you can't divert water you don't need. We are diverting water under a couple of rights. OVERVIEW OF SECTION 404 REGULATORY PROGRAM Mark F. Sudol, Chief, Regulatory Programs, US Army Corps of Engineers . Most of you are aware of the 404 program. It deals with dredge and fill material. I'll concentrate on irrigation canals, ditches and drainage. We are trying to get to an issue you all have been bringing to our 5