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Legislature Must Decide its Position on Water Agreement Involving Nez Perce Tribe by Rocky Barker The Idaho Statesman, January 6, 2005

The Idaho Legislature must decide by March 31 whether it will join Congress and President George Bush in support of an agreement that will settle for all time the claims of Idaho's Nez Perce Tribe to water in the Snake River Basin.

The $193 million deal would provide benefits for endangered salmon; legal cover for Idaho water users and timberland owners; and cash, water and land for the tribe. It would settle the claims the tribe makes to all of the flows in the Snake River and its tributaries based on its 1855 treaty with the United States. That treaty guaranteed the tribe the right to fish for salmon and other fish. They base their water claims on those rights.

When Idaho began its review of all water rights in the Snake River Basin in 1987, the tribe was forced to assert its claims or give them up. Years of negotiation and a lower court decision in favor of the state left the issue unresolved until 2004 when the tribe, the state, irrigators and the federal government reached a settlement.

The tribe would give up the claims to all but 50,000 acre feet of water and access to springs and fountains on federal lands in north central Idaho under the settlement. It also would get a package of money and land.

Congress approved the agreement in November and President Bush signed it in December.

The Legislature must make changes in state water rules that will all but guarantee that 427,000 acre feet of water is available every year from southern Idaho to aid salmon migration. It also must authorize the federal government to annually lease or buy up to another 60,000 acre feet of water from farmers, which can be used to augment flows for salmon.

The legislation also will establish minimum stream flows on the Salmon and Clearwater rivers and tributaries to aid salmon spawning and migration. These state-controlled instream-flow rights will ensure that many places where salmon spawn that are currently dried up or too shallow will have enough water for the fish.

A series of logging rules designed to protect salmon and steelhead also must be adapted.

A similar program is under development for ranch lands for salmon streams that run through private property. Ranchers who opt in get protection from the Endangered Species Act.

The Idaho Legislature and the Nez Perce Tribal Executive Committee must approve the agreement by March 31.

What does the Nez Perce water deal provide?

For the Nez Perce

• Recognizes the tribe's right to use 50,000 acre-feet of water on its reservation. It will be administered on tribal lands under tribal water code.
• Gives the tribe a $50 million trust fund for natural resource and economic development.
• Provides $23 million for a sewer and domestic water supply system and a water quality lab on the reservation.
• Provides $10.1 million in lieu of federal reservoir storage space.
• Transfers management of the Kooskia federal hatchery on the Clearwater River to the tribe. It also would co-manage the Dworshak hatchery with the federal government.
• Transfers ownership of $7 million worth of federal land chosen from 11,000 acres within the boundaries of the tribe's reservation.
• Gives access and allows use of springs and fountains on federal lands in the territory the tribe ceded to the United States in its 1863 treaty.
• Gives the tribe and the state more say in how 200,000 acre-feet of water in Dworshak Reservoir are used to aid salmon and steelhead migration through a memorandum of agreement with the federal agencies that now make the decisions.

For salmon and steelhead

• Makes changes in state water rules that will all but guarantee that 427,000 acre-feet of water is available every year from southern Idaho to aid salmon migration.
• Authorizes up to another 60,000 acre-feet of water currently diverted by farmers to be purchased and left in the Snake River for salmon.
• Establishes state minimum stream flows on the Salmon and Clearwater rivers and tributaries to aid salmon spawning and migration.
• Institutes strict forest practices in the Clearwater and Salmon river drainages to ensure salmon and steelhead habitat is protected from destructive logging and road-building on state lands and private lands where landowners participate.
• Approves a cooperative habitat restoration plan with a $38 million habitat trust fund split between the state and the tribe.

• The Nez Perce Tribe waives all of its claims to water rights in the Snake River Basin beyond those recognized in the pact.
• Clears the final major hurdle to completing the huge inventory of water rights that has been going on since 1987.
• Limits challenges of timber sales based on the Endangered Species Act on state land in the Salmon and Clearwater basins.

• Protects the current state water distribution system including federal storage reservoirs like Lucky Peak, Arrowrock and Anderson Ranch that supply the Treasure Valley with water for drinking and irrigation.
• Protects existing uses, properly modified, from prosecution under the Endangered Species Act if landowners choose.
• Pays $11 million to farmers between Buhl and Murphy who sell their water rights that currently allow them to pump their water from the Snake River high up to surrounding plateaus.

• Establishes a $2 million fund for counties to offset the loss of the high-lift pumping farmers.

For the federal government

• Limits legal challenges under the federal Endangered Species Act to the Bureau of Reclamation's operation of Snake River dams in Idaho, but only after a public process.

President Bush must sign the omnibus budget bill that includes the Nez Perce Agreement. Then the Idaho Legislature and the Nez Perce Tribal Executive Committee must approve the agreement by March 31, 2005.

Also by that date, the state has to identify and negotiate minimum stream flows in the Upper Salmon River Valley, and negotiate the framework of a salmon protection plan for the Lemhi and Pahsimeroi basins in eastern Idaho.

The Bureau of Reclamation must finish consulting with federal fisheries agencies as required under the Endangered Species Act by March 31, 2005. But if the rules that come out of this public process exceed the demands for Idaho water outlined in the agreement, the deal can be negated.

Link to read a summary of the agreement