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Feds, State and Tribe Reach Proposed Agreement in Huge Water Rights Case by Rebecca Boone, Associated Press Seattle Post-Intelligencer, May 15, 2004

BOISE, Idaho -- The Nez Perce Tribe, state and federal agencies have agreed to augment Snake River flows to aid endangered salmon, improve fish habitat in the Salmon and Clearwater rivers, and officially recognize some of the tribe's claims to water in the Snake River Basin.

Interior Secretary Gale Norton, Gov. Dirk Kempthorne and Nez Perce Tribe Chairman Anthony Johnson announced Saturday that a proposed settlement had been reached in one of the largest water rights cases in the West.

Kempthorne said the agreement preserved existing state and private water rights while it established a framework for water use and timber management compliance under the federal Endangered Species Act.

"This is one of the single most important milestones in our state's 114-year crusade to control its water," Kempthorne said. "What we've achieved here is sovereignty, certainty and opportunity for Idaho to chart its own destiny with regard to water and the future of this state."

The state has been sorting out 180,000 claims to river water rights for nearly two decades. In 1993, the Nez Perce laid claim to most of the water in the river, including its tributaries. The proposed settlement - set to take effect next spring and last for 30 years - still must be approved by the U.S. Congress, Idaho Legislature, the tribe and the Snake River Basin Adjudication court.

Though the agreement does not resolve all the contested water issues in the Snake River, it addresses the bulk of the concerns raised by the tribe.

"Water has been fundamental to the livelihood and culture of the Nez Perce people for over 10,000 years. It is essential to our economic and cultural health today," Johnson said. "Clean water in sufficient quantity is necessary for the Nez Perce people to exercise our treaty-preserved rights."

The first component of the agreement resolves the tribe's water and natural resource concerns in the Snake River Basin Adjudication, including a clear determination of what water rights are due the tribe.

Under that section, the tribe wins its claim to 50,000 acre-feet of water from the Clearwater for multiple uses, as well as its claim to springs or fountains on federal lands within historic reservation boundaries. In exchange, the tribe waives its claim to similar water rights on nonfederal and private lands.

The Bureau of Land Management will transfer land in the region worth $7 million to the tribe, and the tribe will take over management at the Kooskia National Fish Hatchery and co-manage the Dworshak National Fish Hatchery.

The federal government will also provide $50 million for the tribe to acquire land and water rights, improve fish habitat and use in other ways, as well as an additional $23 million for sewer and water systems on the reservation.

The second component of the agreement is designed to improve habitat and water flows for endangered salmon in the Salmon and Clearwater rivers. It allows the Idaho Water Resources Board to establish instream flows for some streams and requires the state to administer a cooperative agreement under the Endangered Species Act to improve riparian habitat.

The third details the way that water flows will be determined for the Snake River and the use of water for flow augmentation, and relies on planned 30-year biological opinions to be issued by the National Oceanic and Atmospheric Association and the U.S. Fish and Wildlife Service on Snake River flows.

The agreement also allows the Bureau of Reclamation to rent or buy up to 60,000 acre-feet of water rights to increase the flow on the Snake River. The additional water would increase total water available every year for flow augmentation to up to 487,000 acre-feet.

The state's politically powerful irrigators - the Idaho Water Users Association - also signed off on the agreement. Executive Director Norm Semanko said irrigators could be happy that the flow augmentation program was designed with a willing seller-willing buyer relationship. No water rights holder will be forced to give up their right for augmentation, he said. (see Flow Augmentation from Idaho's Snake River)

"Our goal in this thing from the beginning," Semanko said, "was to ensure that water users will continue to have water provided for their crops and for other uses in the state of Idaho."

That goal was reached, he said.

Interior Secretary Gale Norton said the agreement would serve as an example for other states in the West facing water crisis.

"As we all know, water disputes can tear a state apart. Here it brought people together to craft a local solution to address local and regional needs," she said. "We can no longer afford to think of water conservation and management as just a drought issue. Growing populations especially in the West are placing increasing demands on a limited water supply, often pitting cities and economic growth against more traditional water uses."

All the parties in the case agreed that the public's response will not be entirely positive. Each side gave up things in the effort to reach common ground, officials said.

Bert Bowler with Idaho Rivers United was not part of the negotiations. He said his conservation group - like many others - was reviewing the document carefully.

"We're pleased that the Nez Perce could come up with a settlement on this issue. There appears to be some good things in there relative to instream flow water rights and habitat improvement provisions that can benefit fish and wildlife," he said. "But we have some big concerns about the Endangered Species Act and Clean Water Act provisions. And it's really not a salmon recovery agreement, that's for sure. They're really not dealing with the biggest issue for salmon recovery, and that's the Lower Snake River dams."