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Water Users File Intent to Sue Over Upper Snake Projects by CBB Staff Columbia Basin Bulletin - November 21, 2003

An alliance of Idaho water users this week filed a 60-day notice of intent to sue several federal agencies as part of what it describes as an "aggressive" strategy to protect Idaho water.

The Coalition for Idaho Water announced its 60-day notice of intent to sue the Secretary of the Interior, the Bureau of Reclamation, the Secretary of Commerce, and NOAA Fisheries for violations of the Endangered Species Act, the Administrative Procedures Act, and other provisions of federal law, regarding operation of the Bureau projects in the Upper Snake River Basin.

A copy of the full notice of intent to sue can be viewed on the Idaho Water Users Association Website at: www.iwua.org.

The action was taken on behalf of numerous irrigation water space holders, the Coalition for Idaho Water, and the Idaho Water Users Association, regarding the Upper Snake River projects, flow augmentation, and related issues.

"We did not make the decision to fight over Idaho water in the federal courts -- the environmentalists did. Now that we have been forced onto that path, we must fight and we must fight aggressively. The 60-day notice is one part of that strategy," said Norm Semanko, Coalition for Idaho Water president, and executive director and general counsel of the Idaho Water Users Association.

In August, conservation groups mailed a 60-day notice of intent to sue NOAA and the BOR, claiming the Upper Snake River BiOp violated the ESA in a variety of ways. Within a few weeks the groups withdrew the letter at the request of Idaho Sen. Mike Crapo. He in turn instigated talks between the various groups on how issues, and particularly those related to the provision of augmentation water, could be resolved.

Earlier this month the conservation groups sent a letter to the senator, saying they could not set aside the possibility of litigation because several parties involved in the Crapo talks remain engaged in talks on many of the same issues through the adjudication process -- at the exclusion of the conservation groups. The groups remain undecided this week about whether they might reissue the notice letter and begin litigation, according Jan Hasselman of the National Wildlife Federation.

In its press release this week, the Coalition for Idaho Water said for the past dozen years, water users and the state of Idaho have cooperated with the federal government to help provide water from Idaho for flow augmentation, from willing sellers, consistent with state law, resulting in a total of more than 4 million acre feet of water going downstream from the Upper Snake River Basin for the flow augmentation experiment during that time period.

"Despite this considerable sacrifice of Idaho water, the environmental community now wants more -- a lot more. However, flow augmentation is a failed experiment and there is simply no basis for requiring ever-increasing amounts of water from Idaho -- water that could be used for increased and competing demands within our own state -- especially in the middle of an historic, prolonged drought," Semanko said.

The notice demands that the Bureau and the NOAA Fisheries address a number of issues, including:

1. Recognition that the Upper Snake River Projects' operations are separate and distinct from operations in the Lower Snake and Columbia rivers;
2. Review of the status of the listed salmon and steelhead stocks, including consideration of hatchery fish, as required under the ESA;
3. Consultation on the Upper Snake River projects is not required or lawful under the ESA;
4. The federal agencies have no authority to acquire or use water from the Upper Snake River Basin for flow augmentation;
5. The federal agencies have failed to use the best available science, as required under the ESA, by continuing to use Idaho water for flow augmentation, which has been shown to be a failed experiment;
6. Improper reliance upon flow augmentation and failure to complete a recovery plan for salmon, or to address known causes of mortality to the salmon.

"If these concerns are not adequately addressed by the federal agencies within 60 days, we will reserve the right to take action in federal court, as necessary to protect Idaho's water," Semanko said.