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Lawsuits Over Salmon Could Affect Water Rights by N.S. Nokkentved Times-News, January 29, 2001

TWIN FALLS -- Three lawsuits filed over alleged water diversion that harm endangered fish may raise some tough issues for other water rights.

If taking water out of a stream hurts fish, does that preclude taking water out for irrigation, asked Norm Semanko, executive director of the Idaho Water Users Association.

Three lawsuits were filed late last year by Idaho Watersheds Project and the Committee for Idaho's High Desert over irrigation diversions that obstruct fish passage, dry up creeks and are operated without screens to keep fish out of irrigated fields and pastures.

The lawsuits would have little direct effect on local water rights, but the larger implications have raised some concerns among water users, Semanko said.

So far he is just watching. Semanko is assessing whether the association needs to get involved in the lawsuits.

"It's too early right now to make that decision," he said. But he hopes the issue can be resolved without litigation.

The intent of the lawsuit is twofold: to hold water users responsible for diversion requirements of state law and to push for a way to allow farmers and ranchers to profit from leaving water in the stream, said Laird Lucas, a lawyer with the Land and Water Fund of the Rockies who filed the lawsuits.

There is no mechanism in Idaho law for farmers or ranchers to dedicate a portion of their water rights for stream flow and for fish, Lucas said. The groups are not suggesting the state should take anyone's water right, but to allow them to sell a water right or a portion of a water right.

"They should be paid," Lucas said.

Others say water rights are property rights and if a federal agency under the endangered species act wants part of someone's water right, that person should be compensated.

Under current state law only the state Water Resources Board can hold an instream water right. A water right holder can apply to the board for an instream right, but it would be subject to a new priority date.

A water right holder also could deposit part of a water right into the state water bank and then rent it to the agency charged with recovering the endangered fish as an instream flow.

But rented water is not a long-term solution, said Jon Marvel, president of the Watersheds Project. It's only effective until the lease expires, and it may not be renewed year to year.

To create a long-term flow for fish, the holder of an older water right could allocate 50 percent of that right to instream flow -- perhaps sell it as a minimum flow for fish, Lucas said.

That's possible in some states, such as Oregon and Washington. It's something the Idaho Department of Water Resources has tried repeatedly to change.

And something adamantly opposed by water users out of concern about how that would affect other water rights.

The Idaho Water Users Association continues to oppose any attempt at permanent conversion of irrigation water rights to instream flows, Semanko said.

Marvel said his group would like to see water turned back into dried up creeks with the same priority date as the original water right. Renting water only is effective until the lease expires. It is not a long-term solution.

Instead he sees water marketing as the long-term solution.

"What are people afraid of?" he said.

Most people in predominantly Republican Idaho espouse free market ideals, but the systems that support agriculture, ranching and irrigation are socialist, Marvel said. The state controls the use and distribution of water rather than the marketplace.

Under some circumstances water would be more valuable for fish than for alfalfa, and water right holders should have the right to sell the water for the higher economic benefit, he said.

But it may not be that simple, said Norm Young, water management administrator with Water Resources. Some diversions have a secondary effect of recharging groundwater that supplies other water rights or keep some mountain streams flowing through the summer.

Turning irrigation water rights into instream flows raises some tough questions, Young said.

The lawsuits also seek to hold users responsible for following the requirements of the law.

"We hope to get people to think about the consequences of what they do with water," Marvel said.

The lawsuits charge that the diversions in question have no screens or other mechanisms to keep the diversions from sucking young fish into ditches or onto fields.

Yet state law says it is illegal to divert water "without first installing and maintaining a suitable screen or other device to prevent fish from entering" the diversion.

If the state starts enforcing that law, "who is going to be paying for it," Semanko asked.