Agreement Could Wash Away Idaho Water Dispute

By J.R. Pegg

WASHINGTON, DC, May 17, 2004 (ENS) - One of the oldest water disputes in the Western United States may be resolved under a proposed settlement announced Saturday by federal officials, the state of Idaho and the Nez Perce tribe. The proposal settles the Nez Perce's water rights claims in Idaho's Snake River Basin and grants the tribe some $193 million in water, land and compensation over three decades.

U.S. Interior Department Secretary Gale Norton said the three part agreement "clears the way for a long term public water policy for Idaho and enables the United States to fulfill trust responsibilities for the Tribe."

The tribe's claims to water in the Snake River Basin have been the major sticking point in a two decade attempt to sort out some 180,000 water rights in 38 of Idaho's 44 counties.

In a familiar debate across the West, the dispute of the Snake's water rights has put tribal interests, farmers, federal dam operators, conservationists, and other users at odds.

The river snakes more than 1,000 miles through the state, providing water for power plants and local communities, irrigating 3.8 million acres of land, and affording vital habitat for endangered salmon and steelhead.

The dispute over the Snake River is one of many water conflicts in the West .(Photo courtesy American Rivers)

The Nez Perce says it has priority water rights in the Snake River and its tributaries under an 1855 treaty, which far precedes the date of the vast majority of the other claims in the state.

That treaty granted the tribe fishing rights on tribal lands ceded to the United States - the Nez Perce contend the United States has failed to manage the rivers in a way that adequately protects the fish, and so the Tribe staked its claim to the water.

Although a state judge ruled in 1999 that the treaty did not grant the water rights claimed by the tribe, negotiations have continued - and now have borne fruit - as the case moved through the appeals process.

The first part of the proposal sets the tribes water rights at 50,000 acre feet a year from a major Snake tributary - the Clearwater River - and gives the Nez Perce water rights to all springs on federal lands that were once tribal lands, in exchange for the waiving of claims to similar water rights on state and private lands.

Wild salmon are considered by many to be an irreplaceable icon of the Pacific Northwest. (Photo courtesy Columbia & Snake Rivers Campaign)

The settlement transfers $7 million worth of land within the present Nez Perce reservation from the U.S. Bureau of Land Management to the tribe.

The tribe will also take over management of the Kooskia National Fish Hatchery and will comanage the Dworshak National Fish Hatchery with the federal government.

In addition, the tribe will receive $23 million in federal grants for the design and construction of a water supply and sewer system on the reservation.

"We are pleased at the progress that has been made in resolving these difficult issues," said Nez Perce Tribal Executive Committee Chairman Anthony Johnson. "The process can now move forward to closure with new momentum, for the benefit of all concerned."

The second portion of the agreement focuses on a habitat restoration and management initiative to improve instream flows, fish habitat and passage to provide for endangered salmon in the Salmon and Clearwater River Basins.

The state of Idaho will be granted authority to set minimum flows for 174 rivers and streams that are important to salmon and steelhead, and will be required to administer cooperative agreements under the Endangered Species Act (ESA) to improve riparian habitat. The agreement also establishes a habitat fund to provide funding for habitat improvement projects.

The third section of the proposal sets a process for determining Snake River flows.

The Lower Granite Dam is one of four dams blocking migrating salmon on the Snake River.(Photo by Doug Thiele courtesy U.S. Army Corps of Engineers)

The proposal extends an agreement that allows the U.S. Bureau of Reclamation lease up to 427,000 acre feet of water a year from Idaho to increase flows.

In addition, it gives the federal agency the authority to lease or purchase an additional 60,000 acre feet from the other Snake River water rights holders.

"The agreement will enable the State of Idaho to more effectively address its responsibilities for water resource management and the needs of protected fish," said Idaho Governor Dirk Kempthorne. "It also provides Idaho's water users the assurance, security and flexibility they need to address the water challenges facing their businesses and communities."

Agriculture interests appear satisfied by the proposal, but conservationists are not convinced the deal will do much to protect the region's endangered fish.

Idaho Republican Governor Dirk Kempthorne. (Photo courtesy Idaho Governor's Office)

"While it is not up to us to judge the merit of the overall agreement and its importance to the individual parties to it, one thing is clear - it is not good enough for salmon and steelhead."

Ford says scientific evidence finds that the salmon in the basin need some 1.5 million acre feet for long term protection and survival - far more than the 427,000 acre feet "that has been the status quo for years and seems to remain so under this agreement."

"We also have grave concerns with its apparent provisions providing the state of Idaho greater authority over endangered species management in Idaho," Ford said. "Unlike the Nez Perce Tribe, the state of Idaho has done little to help restore the state's own salmon and salmon economy."

The agreement, which would enter into effect next spring, is still a long way from reality. It must be approved by the U.S. Congress, the Bush administration, the Idaho state legislature, and the Nez Perce Tribal Executive Council by March 31, 2005.