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Legislature may Face Water Disputes by Rocky Barker The Idaho Statesman, January 8, 2004

Heavy snows ‘could cure a lot of problems’

Two major water disputes may fall in the laps of the Idaho Legislature in the session that will open Monday, or may lead to a special session later.

Right now there are no obvious solutions, except perhaps heavy snows throughout the winter.

“That could cure a lot of problems,” said House Speaker Bruce Newcomb, R-Burley.

A bitter fight between irrigators and salmon advocates may force lawmakers to reconsider a state law that allows federal officials to send 427,000 acre-feet from southern Idaho reservoir down the Snake River to aid salmon migration. The Legislature also may be asked to sort out a dispute between Magic Valley trout producers and farmers over water supplies depleted by drought.

And lawmakers are waiting to see whether the state of Idaho, irrigators, Idaho Power Co. and the Nez Perce Tribe reach an agreement in the largest water rights case pending. If the parties strike a deal, it would need approval by the Idaho Legislature, Congress and the Nez Perce Tribal Business Council.

“I think timing will be important,” Newcomb said. “I don´t know that we want to take this issue on in the regular session.”

The salmon-water dispute has captured the most attention since talks to resolve the issue moderated by Sen. Mike Crapo broke down. Idaho Rivers United and several national environmental groups refiled a 60-day notice of their intention to sue two federal agencies for inadequately analyzing the impacts on salmon of dams on the Boise, Payette and Snake rivers in Idaho.

A similar filing was made by the Coalition for Idaho Water, which represents a wide array of agricultural and business interests.

Norm Semanko, president of the group and executive director of the Idaho Water Users Association, said the threat of a judge forcing Idaho farmers to give up water for salmon has angered many rural lawmakers and their constituents.

“I think there is going to be some desire in the Legislature to do something about what happened,” Semanko said.

One environmental group, the Idaho Conservation League, dropped out of the proposed lawsuit. Justin Hayes, program director of the statewide conservation group, said he would like to work with Semanko and lawmakers on an Idaho solution to the dispute.

“The reason ICL chose not to go forward with the lawsuit was we want to have that kind of discussion in this legislative session,” Hayes said. “We want to work toward a solution that works for all parties.”

As an example, he pointed to a deal ICL forged with lawmakers over a state wolf plan. In that instance, groups worked behind the scenes to craft a compromise both ranchers and wolf advocates could support.

“I hope the interested parties can find some way to de-politicize it,” he said.

The Magic Valley controversy strikes at the heart of the foundation of Idaho water law: The oldest water right has priority.

Several trout farms are challenging in court 1995 rules for jointly managing ground and surface water. They argue that dairies, irrigators and industries with water rights newer than their rights —dating back to the mid-1960s — are reducing the flows in the springs they use for their hatcheries by pumping water from the aquifer.

They say the state plan to mitigate their low flows is inadequate and unconstitutional. If they win, then dozens of businesses would immediately lose the right to use water.

Currently, several hatcheries are operating with half the water they need and have a right to under state law.

“I think eventually the (Idaho Department of Water Resources) or the courts have to make a difficult decision,” Semanko said. “To ask the Legislature to do that would be difficult and politically divisive.”

Sen. Minority Leader Clint Stennett, D-Ketchum, has constituents on both sides of the issue. “We need a mitigation plan the fish guys will buy off on,” he said.