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Sweeping Snake River Water Rights
Settlement in the Works

by Mike O'Bryant
Columbia Basin Bulletin - May 21, 2004

The Nez Perce Tribe took a step Saturday (May 15) in reaching a settlement with the state of Idaho and federal agencies over Snake River water rights the tribe's initially challenged in 1993.

When the tribe made the challenge, it joined the already long running (about six years) and secretive Snake River Basin Adjudication, a state judicial process to resolve the policy, ownership and size of as many as 150,000 water rights in 38 of 44 Idaho counties.

Nez Perce Tribal Chairman Anthony Johnson, along with the Idaho Gov. Dirk Kempthorne and U.S. Secretary of the Interior Gale Norton, announced in Boise a framework agreement that would resolve the Nez Perce water issues in Idaho in a deal worth as much as $193 million. The parties have been working on the plan since 1998.

However, the agreement still must garner the approvals of the Nez Perce Executive Committee, the Idaho legislature, Congress and President George W. Bush by March 31, 2005, before it goes back to the Adjudication court for a final sign off.

"This framework agreement clears the way for a long-term public water policy for Idaho and enables the United States to fulfill trust responsibilities for the Tribe," Norton said as she outlined the terms of the settlement at a ceremony along the Boise River. She added that this is the "first step in what will be a long journey. We will need to continue to work together, collaboratively and with creativity, as we draft the important legal documents that will implement our vision."

Kempthorne said the agreement signals that the decades-long Adjudication process is nearing an end. The Nez Perce dispute has been the largest chunk of that process.

"We now need help from others," Johnson said at the ceremony. "We need the support of our neighbors, non-Indian and Indian, throughout Idaho. We need the support of our fellow tribes and other neighbors in Oregon, Washington and Montana."

The framework is in the form of a 49-page term sheet that guides the settlement and outlines all parties' responsibilities over the agreement's 30 year term.

The Nez Perce Tribe gets a 50,000 acre foot per year water right, with a priority date among all state water rights of 1855 specifically for tribal lands, and a new $23 million water and sewer system for the reservation.

The framework transfers Bureau of Land Management lands that lie within the reservation to the Tribe, worth about $7 million.

It establishes a $50 million multiple use and fisheries resource trust fund.

And, it transfers management of the U.S. Fish and Wildlife Service Kooskia National Fish Hatchery to the Tribe and establishes co-management responsibilities with the USFWS at the Dworshak fish hatchery, according to Heidi Gudgel of the Nez Perce Tribe's legal office. She said that how those hatcheries will be managed and for what uses is still a "part of the massive work that still needs to be done."

"All of the parties realize there is a lot to do before March 2005," Gudgel said, adding that she sees no reason at this point that the agreement would not be approved. "It's anticipated that all parties will agree if the agreement stays as it is now."

She added that the Adjudication process, due to the judicial protective order, has been just as secretive among tribal members as it has in the general Idaho public, so the Tribal Executive Council must begin public meetings to convince the tribal community that the deal is good for their interests.

The agreement also will set instream flows in the Salmon and Clearwater rivers under a new Salmon/Clearwater Habitat Management and Restoration Initiative.

And it nearly guarantees the 427 kaf for summer flow augmentation in the lower Snake River that has been provided by the Bureau of Reclamation and is a reasonable and prudent alternative of the NOAA Fisheries 2000 Biological Opinion.

Delivery of that water has depended on Reclamation being able to purchase the water from the state's irrigators, but low water supplies in the last few years has made it difficult for the federal agency to acquire the entire amount. The most recent estimate of available flow augmentation for the summer of 2004 is about 300 kaf.

While this agreement will make the delivery more certain, Reclamation's Regional Director Bill McDonald said it will still depend on willing sellers of the water. "It's not a guarantee, but it has a very high degree of reliability in most years," he said.

In addition, the agreement allows Reclamation to acquire another 60 kaf of consumptive natural flow water rights from the Snake River, at a cost of about $11 million, which should help meet the 427 kaf in most years, he said. Because that could result in drying up some high elevation farmland, counties will receive about $2 million to offset those economic impacts.

The total $193 million cost of the Adjudication agreement with the Tribe includes the cost to Reclamation of both the 427 kaf and the additional 60 kaf, Gudgel said. "That is not a new cost," she said.

Finally, the agreement provides 200 kaf from Dworshak Dam for late summer flow augmentation in the lower Snake River. The Tribe and the State of Idaho together have recommended that flow augmentation waters from Dworshak be extended beyond the Aug. 31 date prescribed by the BiOp to at least Sept. 15. That is to help juvenile salmon remaining in the river move downstream and to help the adults still migrating upstream.

The regional, multi-agency Technical Management Team has extended those flows into September the last two years, but the in-season management action depends on available water supplies and hasn't been provided in low water years.

Idaho Power and NOAA Fisheries had been involved in the Adjudication as a part of the utility's relicensing of its Hells Canyon Complex of dams on the Snake River. However, Idaho Power, which deals directly with the Federal Energy Regulatory Commission in the relicensing process, recently chose to leave the Adjudication process. Idaho Power and NOAA Fisheries jointly sent a letter to FERC this week saying that the two would continue talks that they had begun as a part of the Adjudication regarding the dams' impacts on endangered species.

"For the past several years, the National Marine Fisheries Service (NOAA Fisheries) and Idaho Power Company (IPC), together with other interested parties, have been attempting to resolve Endangered Species Act issues associated with the current operation, and anticipated relicensing, of the Hells Canyon Complex (HCC) in the context of the larger, confidential, Snake River Basin Adjudication (SRBA) discussions," the letter to FERC said. It was signed by John Prescott, IPC Vice President for Power Supply, and NOAA Fisheries Regional Administrator Bob Lohn.

The letter went on to say that the parties had hoped to resolve the ESA issues within the Adjudication process and "that the settlement terms would be incorporated into the existing license, through an appropriate license amendment, and the new license for the project. Unfortunately, we must inform you that we were unable to conclude these discussions to the mutual satisfaction of both parties within the timing of the SRBA," and so removed the Hells Canyon dams issues from the Adjudication process.

However, NOAA Fisheries said that dam operations affect ESA-listed species and so ESA Sec. 7 consultation is still warranted. The letter said that Idaho Power's view "differs as to the nature and extent of the effect of the HCC on ESA listed species," but that it and NOAA will resume talks that were initially begun within the Adjudication in the next 30 days.

As for the Settlement, Gudgel said that the term sheet outlines both the settlement and how remaining issues will be resolved. But before the agreement is final, it still must jump through more hoops, including Idaho legislature and U.S. Congressional approvals. "At each stage, there are opportunities for people to object," she said.

"Today's announcement of the terms of the Snake River Basin Adjudication is disheartening insofar as it affects salmon and steelhead," said Pat Ford, Executive Director of Save Our Wild Salmon. "While it is not up to us to judge the merit of the overall agreement and its importance to the individual parties to it, one thing is clear - it isn't good enough for salmon and steelhead."

He said that salmon and steelhead need one million to 1.5 million acre feet of water, not the 427 kaf called for by the settlement. That "has been the status quo for years, and seems to remain so under this agreement," he said, as he called for removal of the four Snake River dams as the "only option to restore abundant salmon and steelhead to the Snake Basin."

The devil will be in the details, he said, and he hopes and expects the process to be "fully open and transparent" in the future.

Related Sites:
Information about the Settlement:

Mike O'Bryant
Sweeping Snake River Water Rights Settlement in the Works
Columbia Basin Bulletin, May 21, 2004

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