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Water Deal is Good for Idaho by Staff Idaho Statesman - January 23, 2005

The Nez Perce water agreement is good for Idaho, good for the Nez Perce Tribe, and good for salmon and steelhead.

Legislators and tribal officials should make this deal. It's time to settle a decade-long debate over who controls Idaho water.

The Nez Perce have claimed the rights to all of the water in the Snake River and its tributaries. The tribe cites an 1855 treaty with the federal government that guarantees fishing rights. Upriver, Idahoans use this water on their farms, in their homes and at their businesses.

These farms and businesses hire people and pay taxes. Preserving their access to water keeps money flowing into local and state tax coffers. Lawmakers need to think of this agreement as an insurance policy that protects Snake River water users by ensuring state control over the water. Lawmakers, even in urban Idaho or the Panhandle, have a stake in doing this.

The agreement would settle the tribe's water claims. Water users would not be at risk of losing their water rights to the tribe — or of having to pay the tribe for water. House Speaker Bruce Newcomb puts the issue bluntly. "Every time you flush the toilet, if you want to give somebody a dime, vote against the agreement," he said recently.

Is the state's case that weak? That depends on whom you ask. No court has ever granted a tribal request like this. District Judge Barry Wood — the Magic Valley judge assigned to sift through the adjudication of some 180,000 water-rights claims affecting 38 of Idaho's 44 counties — sided with the state and ruled against the tribe. Wood's ruling emboldens Nez Perce agreement critics such as state Sen. Skip Brandt, R-Kooskia, who believes the state would prevail again in state Supreme Court.

One thing is sure. Ultimate victory for either side — in state Supreme Court, or more likely in federal court — comes at a heavy cost. The parties could spend years and millions of dollars, and the state could subject thousands of Idaho water users to the vagaries of the appellate process.

"Isn't it better for us to decide issues about our water than to have a court do it?" Gov. Dirk Kempthorne said during his State of the State address this month. The question is rhetorical, the answer clear.

The security that comes with this agreement doesn't come cheap.

The tribe gets an eye-popping list of benefits: $50 million for an economic development and natural resource trust fund; $23 million for a sewer and domestic water-supply system and water-quality lab; $10.1 million for giving up space in federal reservoirs for storing water; $7 million worth of federal land. The tribe gets water from the Clearwater River: 50,000 acre-feet, enough water to cover all of Ada County almost an inch deep.

That's a lot — and, critics say, too much. However, it's worth it to ensure Idaho's control over Snake River water. And it's worth noting that some tribal members are convinced they would win — and win more — in court.

Salmon and steelhead also win. The deal all but guarantees Idaho will release 427,000 acre-feet of water to help salmon and steelhead migrate to the Pacific, sets minimum stream flows in the Salmon and Clearwater rivers to protect migrating and spawning fish, and establishes a $38 million trust fund for habitat improvements.

We all benefit from this, not just the Nez Perce who are fighting for fishing rights. Just as the treaty's economic development and public works projects will benefit nontribal members near the reservation, salmon are important to all of Idaho. We share an interest in salmon restoration. This deal won't accomplish that, but it will help.

Not everybody is on board. The Idaho Farm Bureau says the restrictions on logging along streams — rules to protect fish habitat — trample private property rights.

The Farm Bureau may be the agreement's most prominent critic. The most prominent neutral observer may be Idaho Power. The deal does not resolve water quality and endangered species issues for its Hells Canyon dam complex straddling Idaho and Oregon. Since Oregon has no stake in the Nez Perce deal, Idaho Power also is steering clear of the issue, said Greg Panter, vice president of public affairs for IdaCorp and Idaho Power.

For the rest of Idaho, the agreement solves a contentious, complicated issue the right way — through consensus.

This agreement didn't come quickly or easily.

Kempthorne, rightly, doesn't want the fruits of painstaking process to wither on the vine. "Too many people have worked too hard," he told The Statesman editorial board earlier this month. The hard work of negotiation and compromise deserves to be rewarded.

This agreement deserves the support of the Legislature and Nez Perce tribal leaders.