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Idaho Water Coalition Announces Intent to Sue by Patricia R. McCoy, Idaho Staff writer Capital Press, November 21, 2003

BOISE -- Debate over Idaho water ratcheted up another step here Nov. 17 when the Coalition for Idaho Water announced a 60-day notice of intent to sue to protect the state's water from a threatened lawsuit by environmentalists.

The new proposed lawsuit charges four federal agencies with violations of the Endangered Species Act, the Administrative Procedures Act and other federal laws regarding operation of the Bureau of Reclamation projects in the Upper Snake River Basin.

Respondents named in the proposed lawsuit are the Secretaries of the Interior and Commerce, BuRec, and the National Oceanic Atmospheric Administration Fisheries.

The 60-day notice of intent said NOAA Fisheries issued various biological opinions specifically addressing BuRec Operations in the Upper Snake River Basin over the past five years in an effort to protect species protected under the endangered Species Act. Consultation between the bureau and NOAA Fisheries on those projects is unnecessary and contrary to law, the letter said.

That is because the projects are far removed from the Snake and Columbia rivers inhabited by the listed species, including any designated critical habitat, the letter said.

"BuRec has no legal authority to acquire water for ESA purposes. Even though the prior consultations have appropriately recognized the separate and distinct functions of BuRec's operations in the Upper Snake River Basin from other federal operations in the rest of the Columbia River Basin, consultations on other actions authorized, funded or carried out by federal agencies have improperly relied upon flow augmentation as a form of mitigation for these other actions' effects on listed salmon and steelhead," the letter said.

Federal Errors

"Even assuming that consultation may have been required on the Upper Snake Projects operations, it is evident that both the BuRec and NOAA Fisheries have committed certain errors in assessing and evaluating the effects of the projects on listed salmon and steelhead in the Lower Snake and Columbia Rivers," the letter continued.

The notice of intent to sue was issued on behalf of members of the Coalition for Idaho Water, the Idaho Water Users Association, and numerous irrigation water spaceholders, said Norm Semanko, executive head and legal counsel for the Coalition and IWUA.

It responds to a threatened lawsuit against BuRec and NOAA Fisheries filed Aug. 22 by Idaho Rivers United, American rivers, the National Wildlife Federation and the Idaho Conservation League, represented by Advocates for the West and EarthJustice.

The environmentalists' proposed lawsuit calls on federal agencies to operate the 10 Upper Snake River projects in compliance with the ESA.

Idaho water users revived the Coalition for Idaho Water to oppose the proposed litigation. They claimed such a lawsuit could potentially dry up some two million acres of Southern Idaho farmland, end kayaking and rafting on Idaho rivers after the annual spring runoff ends, and cause other economically harmful results.

U.S. Sen. Mike Crapo, R-Idaho, intervened, pulling the opposing sides together for closed door negotiations intended to find collaborative solutions and avoid litigation. Those talks have not been reconvened since the environmentalists, except for the Idaho Conservation League, refused to pledge not to sue.

Protect Water

In announcing the Coalition's Nov. 17 letter of intent to sue, Semanko said legal action is necessary to aggressively protect and defend Idaho's water against numerous misguided legal attacks being leveled by the environmental community.

"We did not make the decision to fight over Idaho water in the federal courts. The environmentalists did. Now that we have been forced onto that path, we must fight, and fight aggressively. The 60-day notice is one part of that strategy," Semanko said.

Water users and the state of Idaho cooperated with the federal government to help provide water from Idaho for flow augmentation for the past dozen years, as long as it came from willing sellers. That sent more than 4 million acre feet of water downstream for an experiment that has failed, Semanko said.

"Despite this considerable sacrifice of Idaho water, the environmental community now wants more - a lot more. Flow augmentation is a failed experiment, and there is simply no basis for requiring ever-increasing amounts of water from Idaho, especially in the middle of an historic, prolonged drought," he said.

In announcing their refusal to pledge not to file suit, the environmentalists cited as their principal reason the fact that they are excluded from the Snake River Basin Adjudication, which started in Idaho in the late 1980s, and is still in progress.

Many of the issues they are concerned with in the current talks hosted by Crapo over their propose litigation are the same ones being discussed in SRBA talks, making it impossible for any real agreements to be negotiated now, the environmentalists said.

Environmentalists sought intervener status in the SRBA, but were excluded by a court ruling that said no one can participate in the adjudication unless they hold a water right. The environmentalists as organizations hold no water rights, said spokesmen for the Idaho Department of Water Resources.