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Snake River Flows, Dismissal of Claims may be Swapped by Associated Press The Idaho Statesman, July 12, 2000

Some Idaho interests involved in Snake River Basin water rights negotiations have discussed swapping a 20-year flow commitment to help migrating salmon for dismissal of legal claims to much more of the state's water, according to a top federal official.

Will Stelle, Northwest regional director of the National Marine Fisheries Service, wrote an undated letter to a mediator overseeing the talks that outlined a "Snake River flow augmentation package offered by state parties" on March 6.

The two-page letter from Stelle and Rob Anderson, a U.S. Department of Interior attorney, was obtained by The Spokesman-Review newspaper through a Freedom of Information Act request for documents relating to Snake River salmon recovery.

According to the letter, the discussion has involved continuation of willing buyer, willing seller agreements to leave in the Snake River 427,000 acre-feet of water that otherwise would be used for irrigation on the condition that the Nez Perce Tribe and the U.S. Fish and Wildlife Service drop their Idaho water claims.

Idaho officials have only reluctantly accepted federal requests since 1992 for releasing 427,000 acre-feet of water a year for flow augmentation. Yet biologists say that is only a fraction of the additional flow actually needed to save dwindling Northwest salmon runs.

The National Marine Fisheries Service in 1995 called for Snake River water releases of an additional 1 million acre-feet. In February, groups representing fishermen and environmentalists filed suit against the federal government for not following that mandate.

Idaho officials say providing another 1 million acre-feet would end irrigation on 800,000 acres in the state.

Jim Yost, a natural resources adviser to Gov. Dirk Kempthorne, said the state's position has not changed since 1995, when then-Gov. Phil Batt said, "Idaho can ill afford to squander its precious water on unconfirmed theories."

"We've requested and will continue to request that the benefits be proven" before the Legislature again approves the release of water, Yost said.

Indeed, the "state parties" to which the Stelle-Anderson letter referred, while apparently some element of the various Idaho water users involved, did not include the state itself.

"The letter does not reflect the position of the state of Idaho," Kempthorne spokesman Mark Snider said on Tuesday. "I cannot really expand on that."

All parties to the negotiations are constrained by a gag order from 5th District Judge Barry Wood, who is overseeing the Snake River Basin Adjudication in Idaho, on the mediation process led by Duke University law professor Francis McGovern.

Stelle told The Spokesman-Review the letter addressed to McGovern should not have been included in the Freedom of Information Act response, calling it "a plain old clerical mistake."

"We hope that this inadvertent mistake doesn't damage the will of the parties to continue their discussions," he said.

The flow augmentation debate is part of the much larger discussion of who has rights to water flowing through Idaho. In 1987, after decades of bickering between users, the state started the Snake River Basin Adjudication process to sort out the various claims.

Among them is one from the Fish and Wildlife Service for more water at southwestern Idaho's Deer Flats National Wildlife Refuge. And the Deer Flats claim is dwarfed by one filed by the Nez Perce in 1993. The Lapwai-based tribe wants the equivalent of all the water that was in the Snake in 1855, when the Nez Perce signed treaties that guaranteed the right to fish for salmon.

The tribe offered to drop the claim in 1997 if irrigators would support a proposal to breach the four Snake River dams in eastern Washington in the name of salmon recovery. The offer was rejected, and the tribe continued pursuing its claim. That led to Wood's May 1999 mediation order.

Given the judge's restrictions on outside comments about that process, McGovern cautioned against reading too much into the Stelle-Anderson letter.

"Documents don't necessarily reflect the entire scope of the negotiations nor the evolutionary aspects of the negotiations," he said.