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Water-rights Pact with Tribe Mulled by Betsy Z. Russell, Staff writer The Spokesman Review, February 20, 2005

Panel takes up Nez Perce agreement OK'd in D.C

BOISE -- A major water-rights agreement with the Nez Perce Tribe has Idaho legislators studying documents, fielding angry e-mails and wrestling with the ins and outs of water law, stream flows and fisheries.

For two North Idaho representatives, it will all come to a climax this week when the House Resources Committee, on which both serve, holds two days of hearings on the agreement. The panel is expected to debate and vote on the agreement at the conclusion of the hearings on Wednesday.

Rep. George Sayler, D-Coeur d'Alene, is leaning toward approving the agreement. "I have read the term sheet – I'm going to go back and read it again, really study it," Sayler said. "I think the state comes out pretty good, and most of the cost is being paid for by the federal government."

Rep. George Eskridge, R-Dover, is still undecided. He's trying to determine whether the agreement, which settles the tribe's longstanding claims to virtually all the water in the Snake River and its tributaries, could impact Panhandle lakes and streams. "We're getting information on both sides, and it's overwhelming," Eskridge said.

The agreement, already approved by Congress and signed by the president, calls for the tribe to give up most of its claims forever, in exchange for money, land and protection for salmon.

"I'm not sure that anybody, including the tribe, thinks it's the best deal," said Heidi Gudgell, staff attorney in the tribe's Office of Legal Counsel. "It's a reasonable alternative to many, many years of litigation."

David Hensley, attorney for Gov. Dirk Kempthorne, said, "In order to understand the benefits of the agreement, look at the downsides of not having an agreement. The uncertainty and the costs associated with future litigation over this issue are tremendous."

The Wind River adjudication in Wyoming was litigated almost to conclusion, and it took from 1977 until last year – almost three decades of litigation and $60 million in legal costs for the parties. That just involved rights to consumptive use of water – which is only about a third of what's involved in the Snake River dispute.

The Nez Perce Tribe's claims to Snake River water are the largest piece of the giant Snake River Basin Adjudication, an effort to prioritize and clarify hundreds of thousands of water rights that reach into 38 of Idaho's 44 counties. When it's done, the process will be the largest water-rights adjudication ever completed in U.S. history.

Under Idaho water law's "prior appropriation doctrine," the oldest water rights have top priority. Because the tribe's rights stretch back to the 1800s and involve so much of the water – based on the tribe's 1863 treaty with the United States – they formed a huge piece of the puzzle of the adjudication. With the tribe's claims in question, the rest of the puzzle couldn't fit together.

Hensley asked, "How can you ensure long-term economic development if you don't have certainty over your water? Water is the lifeblood of this state, and when you bring certainty to that, you bring certainty to many other issues."

Here are the main points of the agreement that the tribe, the state, the federal government and other water-rights holders began negotiating in 1998, and settled on last May:

• The tribe gets rights to use 50,000 acre feet of water a year on its reservation, plus a $50 million water and fisheries resources trust fund; $23 million to build a badly needed water supply and sewer system on the reservation; management authority for the Kooskia National Fish Hatchery; and ownership of up to $7 million worth of U.S. Bureau of Land Management land on the reservation.

• In Dworshak Reservoir, 200,000 acre feet of water would be released later in the year than it is now, to cool the Snake River and aid returning fish. That water now is released earlier to flush young fish downstream; the change would mean the reservoir's level would stay higher longer.

• The Idaho Water Resources Board would establish instream flows for selected streams in the Salmon/Clearwater river basins, and would hold rights to those flows. Future development still would be allowed. The board and the Snake River Basin Adjudication court also would decree minimum flows for the Snake River.

• A voluntary program for timberland owners in the Salmon/Clearwater basins would provide additional habitat protection around streams. Those who enroll would get protection from lawsuits under the Endangered Species Act.

• Federal agencies would issue a 30-year biological opinion under the Endangered Species Act for Bureau of Reclamation projects in the upper Snake River basin. That would include authorizing Reclamation to lease up to 427,000 acre feet of water from willing sellers in Idaho to augment river flows to help migrating fish. The federal agency also would be allowed to acquire an additional 60,000 acre feet from high-lift pumpers, to bump available water for flows up to 487,000 acre feet.

"We are creating certainty that water from the Snake will be delivered. Because of that, we're reducing the need to use water from North Idaho to meet those obligations," Hensley said.

"It's a pretty complicated document," Gudgell said. "I think there are a lot of interests around the state that are getting some relief through this settlement."

Sayler said, "It's a compromise. By nature of a compromise, not everyone is going to be happy."

But Sayler said he's been getting "pretty volatile" e-mails from opponents of the agreement, some of whom see it as a threat to property rights or an expansion of the Nez Perce Tribe's influence. "They're talking about people getting shot and 'this is another Ruby Ridge,' " Sayler said. "Feelings are pretty strong up there."

However, he said he hasn't received a single objection to the agreement from his Coeur d'Alene district.

Eskridge said his mail has been running about 50-50. "I've heard there's two busloads of people coming down from the north," he said.

Opposition to the agreement has been centered mainly in north-central Idaho, where some neighbors have had extended differences with the tribe over everything from gambling to jurisdictional questions.

Eskridge said that's not his concern. "All these other issues are peripheral, and people need to work 'em out," he said. "Some people have their minds made up already, and there are others of us that are still trying to determine what's the best thing for Idaho."

The deal must be approved by both the Legislature and the Nez Perce Tribal Executive Committee by March 31 to take effect.

"I'm happy we're having the hearings," Sayler said. "There can be good explanation, we can defuse some of the anger. … These are such basic issues – right to water, right to land – that it becomes very personal and emotional for people."