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Saving Fish may Endanger Farmers’ Control of Water by Rocky Barker The Idaho Statesman, October 9, 2003

Idaho water users have until Sunday to keep conflict out of court

The politicians, farmers and businessmen who control Idaho´s water have avoided a legal confrontation with the Endangered Species Act over the fate of Pacific salmon for more than a decade.

Those water barons compromised, cajoled and bullied to keep Idaho in control of water stored behind federal dams in reservoirs on the Snake, Boise and Payette rivers. Now Republican U.S. Sen. Mike Crapo is shuttling between water users and environmentalists to stave off a lawsuit that recent court decisions suggest would wrest control from Idaho and divert water away from farms, cities and industry to increase flows to help salmon.

He has until Sunday, the deadline set by salmon advocates, to convince them to withdraw or alter their proposed lawsuit. Complicating his effort are secret court-ordered talks between water users, the Nez Perce Tribe and state and federal officials that address many of the same water issues.

“These issues are deeply rooted in our history and culture,” Crapo said. “They are highly complex.”

The stakes are high.

Across southern Idaho, 3.5 million acres of farmland is irrigated and account for $2.9 billion of income annually. This represents 14.5 percent of the income generated in southern Idaho and small areas of Wyoming and Oregon, according to the U.S. Bureau of Reclamation.

Salmon are a physical manifestation of the wild character of the Pacific Northwest that bring joy to anglers and wildlife enthusiasts alike. Even at reduced numbers, the fish support a $170 million sport fishery and 5,000 jobs in Idaho and provide economic and spiritual sustenance for the region´s Indian tribes.

Four environmental groups seek to force the federal government to link its plan for operating dams on the lower Snake and Columbia rivers in Washington to its plan for operating dams in Idaho. They want to link the two plans and ensure that enough is done to save salmon and steelhead.

At the heart of their demand is more water from Idaho´s reservoirs to flush young salmon to the Pacific.

But in the long term, they want to convince Congress to breach four dams in Washington that impede salmon migration to and from Idaho.

John Rosholt of Twin Falls, one of Idaho´s most respected water attorneys, doesn´t believe breaching four dams in Washington is reasonable, especially when salmon are returning in high numbers. But he rejects the notion that the burden of salmon recovery should be shifted to Idaho´s water users.

“If the problem is the lower Snake dams, obviously our water should not be used in mitigation for those projects,” he said.

Shifting priorities
Western states have historically allocated water based on the doctrine of prior appropriation, which means the first in line has the priority use.

That means most of the state´s water is in the hands of farmers, canal companies and irrigation districts. Industry and municipalities come next, with fish, wildlife and recreational interests forced to the back of the line.

But in recent lawsuits, the traditional priority system has been trumped by the Endangered Species Act´s unyielding requirement that federal agencies prevent species from going extinct.

Last year, U.S. District Judge James A. Parker ruled in a New Mexico case that the Bureau of Reclamation can take water earmarked for cities and farmers and use it to help the silvery minnow in the Rio Grande.The 10th Circuit Court of Appeals upheld his decision in June.

In 2000, a judge in Oregon made a similar decision on the Klamath River and the agency cut off water to 1,400 farmers.

In September, the 9th Circuit Court of Appeals affirmed a lower court decision that found the federal government could restrict the use of irrigation ditch rights-of-way across U.S. Forest Service land in order to maintain in-stream flow levels in the Methow River basin in Washington for salmon protection.

Release valves
When Snake River salmon were listed as endangered in the early 1990s, water users sought to avoid just such a lawsuit. They convinced the Idaho Legislature to allow the Bureau of Reclamation to lease water from farmers in southern Idaho to send down the Snake River to flush salmon to the Pacific. There were no guarantees, but from 1992 until 2001 the allocation of 427,000 acre-feet was largely delivered.

Then the worst drought in 50 years began in 2001, and no water was available for leasing under current state rules that limit farmers´ ability to lease their water on the free market.

Meanwhile, in state court, the Nez Perce Tribe claimed ownership of virtually all the water in the Snake River basin in Idaho.

The tribal claims were based on treaty rights to fish for salmon, and the tribe is seeking to leave more water in the rivers for salmon. For more than three years, attorneys for the tribe, the state and canal companies have been in mediation attempting to reach a settlement that also could shift water from irrigation to salmon flows.

Negotiators reported more than a year ago they were close to a deal. Settlement talks are scheduled to continue Thursday.

John Keys, U.S. Bureau of Reclamation commissioner, said his agency is working hard to close the deal that would clear away the largest barrier to completing a massive legal review of water rights claims in Idaho, called the Snake River Basin Adjudication. His agency has a proposal on the table that would ensure the 427,000-acre-foot allocation was delivered every year, even in a drought.

“We´re making a big push on this thing to get it settled,” he said.

Such a deal might resolve some of the problems raised in the proposed lawsuit by environmentalists.

But it also could raise new issues. The last water rights agreement reached between an Indian tribe and the state —the Shoshone-Bannock Tribes — had to be approved in Congress.

Environmentalists are not a party to the tribal talks. Nor are the states of Washington and Oregon. If there are provisions in the agreement they oppose, they have a chance to challenge them in Congress and in the Idaho Legislature.

Complex lawsuits
Four groups — the Idaho Conservation League, Idaho Rivers United, American Rivers and the National Wildlife Federation — filed a 60-day notice of their intent to sue the Bureau of Reclamation and the National Marine Fisheries Service in early September.

The groups withdrew the notice until Oct. 12 at Crapo´s request. They want the federal agencies to rewrite their plan for meeting the Endangered Species Act for the Bureau´s dams in Idaho, which include those on the Boise River. They say the current plan, scheduled for a rewrite in 2005, is illegal.

But the dispute is more complicated.

In the short term, salmon advocates argue salmon need additional water every year, especially in a drought. They also believe there is no scientific basis supporting 427,000-acre-feet as the amount of water to be supplied for flushing.

In the long term, they say, only breaching four different dams in Washington will allow the wild salmon population to recover. A federal salmon plan approved in 2001 says the fish can be saved without breaching the dams by using a suite of programs, including flushing water downriver from Idaho.

That plan was thrown out by U.S. District Judge James Redden in Portland in May. Federal officials must rewrite it by next June. The environmental groups want to link the two plans together.

Federal biologists set flow targets for the lower Snake River they say meets the salmon needs, targets neither environmentalists nor water users believe can be met. But federal scientists use those targets as part of their proof that dams don´t have to be breached to meet the biological needs of the fish.

If the federal scientists are counting on the biological benefits of Idaho water then the salmon ought to be swimming in it, said Justin Hayes , program director of the Idaho Conservation League.

“Right now the federal government is playing a shell game with Idaho salmon and Idaho water,” Hayes said.

Crapo is hopeful he can make enough progress this week to keep water users and environmentalists talking past the Oct. 12 deadline.

“The question is whether we can find sufficient areas of agreement that we can take issues off the litigation table,” Crapo said.

“I certainly don´t believe that in a week or two of talks we will solve all the fish and water issues we have in Idaho.”