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Nez Perce Hearing Draws Hundreds by Associated Press Times-News, February 23, 2005

Government, public speak out on proposed water agreement

BOISE -- Hundreds of water users gathered at a legislative hearing on one of the largest water rights agreements in the West heard the same message from federal, state and tribal agencies: The agreement isn't perfect, but it's better than the risk faced in court.

"I realize that this is a real controversial subject," Speaker of the House Bruce Newcomb told the House Resources and Conservation Committee during the hearing Tuesday. "I can understand why many people have high emotions on both sides of this issue. By definition, mediation is going to have things in it that nobody likes."

But the agreement is "really important to the welfare of this state," he said.

The multimillion dollar agreement between the government, the Nez Perce Indian Tribe and water users would settle a court order that has been in effect since 1998, directing all the parties to negotiate in-stream flow water rights, find ways to protect fish habitat and preserve water rights for existing water users.

Congress has already signed off on the deal and appropriated more than $45 million to mitigate the cost. The 30-year agreement will be sealed if the state and Nez Perce Tribe sign off on it.

"The bottom line, the settlement will not solve all of Idaho's water problems," said John Keyes, commissioner for the Bureau of Reclamation. "But without this, settling those problems is much more difficult."

Rebecca Miles, secretary for the Nez Perce Tribe's Executive Committee, said the agreement was the most intelligent alternative to taking the matter to court.

"You should understand that the agreement involves enormous compromise for us," she said.

But some committee members remained staunchly opposed to the agreement.

Rep. Lenore Barrett said there is not enough time for lawmakers to get input from the public before voting on the three bills needed to ratify the agreement. A crowd of roughly 300 people listened to the hearing, the majority of them signed up to speak during Wednesday's public testimony period.

"Why not in good faith take a little more time so that these people who will be affected are given more time to be heard," Barrett said, to applause from the crowd. "All they've had so far is a lick and a promise. Tomorrow we're going to vote on this thing, and when you're talking time frame, you're talking a real squeeze. And I just don't think that's right."

Supporters said that for the past nine months, meetings have been held around the state to educate the public about the proposal. Organizations such as the Idaho Cattle Association, Intermountain Forest Association, Idaho Farm Bureau and Idaho Water Resource Board have all weighed in on the matter.

Barrett said she feared provisions in the agreement dealing with the Endangered Species Act would be used to pressure private landowners to take part. The agreement includes a timber component that reduces the number of trees that may be harvested near fish-bearing streams. Though that portion is voluntary for private landowners, those who agree to the terms would gain some protection from lawsuits based on the Endangered Species Act.

Barrett said it could make targets out of landowners who don't volunteer.

"The Endangered Species Act is being used to intimidate people," Barrett said.

Rep. Jack Barraclough said the Nez Perce claims to the water in the Snake River Basin Adjudication were unfair to begin with.

"Help me justify the feeling that by any sense of fairness that the Nez Perce could claim all the water in Lewiston," he said. "It's a payoff -- we'll give this amount so they don't take it all."

When the Snake River Basin Adjudication began in 1987, the Nez Perce Tribe could either enter a claim or give up any claim for all time, said Steve Moore, the tribe's attorney.

"It was not the Nez Perce Tribe's intention to make those claims but had they not, they would have been forever barred. Certainly with the negotiation process we have talked about something dramatically different than claims for the entire flow of the Snake River," Moore said.

Lawmakers also questioned those involved in crafting the agreement about its effects on other aspects of Idaho life, such as the debate over dam breaching.

Though the first negotiations included dam breaching as part of the discussions, the parties decided the issue was out of the scope of the agreement and should not be dealt with through the Snake River Basin Adjudication, Moore said.

"Because the four lower Snake River dams are outside the jurisdiction of the SRBA court, I just don't think we could put it in this package and make it part of the deal," Moore said.