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Idaho, Water Users Seek Voice in Upper Snake Lawsuit by CBB Staff Columbia Basin Bulletin - March 12, 2004

The state of Idaho and a coalition of water users have both filed the papers necessary to gain a voice in a lawsuit they say challenges Idaho's sovereignty and control of the state's water.

Conservation groups and Pacific Coast commercial fishermen filed the lawsuit Jan. 16 asking a federal judge to declare illegal a NOAA Fisheries' biological opinion governing the operation of Bureau of Reclamation irrigation projects in the Snake River basin. The case is pending in the U.S. District Court in Portland.

On behalf of Gov. Dirk Kempthorne and the state, Attorney General Lawrence Wasden filed a motion last week to intervene as defendants in the lawsuit called American Rivers v. NOAA Fisheries.

"We must never yield in the fight over the sovereignty of Idaho water," Kempthorne said. "This suit challenges the adequacy of our state water law to afford voluntary contributions by willing buyers and willing sellers for salmon flow augmentation. Our interests in this regard must be vigorously defended."

"Our intervention in this case is just part of our ongoing efforts to protect Idaho's citizens from unfounded allegations that water use in the Upper Snake River Basin in Idaho is contributing to the decline of salmon and steelhead," Wasden said. "Idaho is a key partner in negotiating creative solutions to salmon and steelhead recovery. We will continue to support scientifically sound solutions, but we will fight any efforts to override state water law and impose unwise and ultimately futile flow augmentation on Idaho water users."

The Coalition for Idaho Water on Wednesday also filed court documents seeking to intervene in the case on the side of NOAA Fisheries. The Coalition, the Idaho Water Users Association, and irrigation districts in Idaho and eastern Oregon fear the motives of the lawsuit brought by American Rivers, Idaho Rivers United, the National Wildlife Federation, and the Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources.

"We are proud to add the strength and resolve of our coalition to that of the State of Idaho. This united defense sends a clear message that Idaho will not stand idly by while its water comes under misguided attack by groups who have clearly exhibited a callous disregard for the wellbeing of Idaho's citizens," said Norm Semanko, Coalition spokesman. "Draining our reservoirs would deny water to our farms, further deplete our aquifers and ground water supplies, and adversely impact resident fisheries and recreation."

The water users say the lawsuit is an attempt by environmentalists to take huge amounts of storage water from a chain of Idaho's Upper Snake River system reservoirs and use it to try to meet "unjustified" flow objectives set downstream on the Snake and Columbia rivers. The Coalition says the flow augmentation strategy has been repeatedly discredited by studies showing that it does not decrease travel time or provide any temperature benefits for the fish.

The Idaho Legislature has also taken a stance on the legal issues to be debated in Portland. The House Resources Committee approved resolutions Thursday supporting the state's efforts to intervene in the case and disdaining efforts to breach lower Snake River dams or drain Idaho's reservoirs.

Dam breaching, the coalition says, is an underlying goal of the lawsuit.

The lawsuit involves 22 Bureau storage projects located upstream of Hells Canyon Dam, designated in federal documents as "Upper Snake" projects.

The complaint asks the court to order the fisheries agency to correct what the groups say are numerous errors in the analysis of the effects the operation of the projects have on threatened and endangered salmon and steelhead and develop a comprehensive plan to restore these fish.

The groups also want to have the new analysis of Upper Snake operations integrated into an on-going rewrite of the Federal Columbia River Power System biological opinion. The FCRPS BiOp remand, ordered by a federal judge last May, is to be completed by June 2004.

The lawsuit says that the existing Upper Snake BiOp issued in 2001, and a three-year extension or supplement released the next year, violate procedural and substantive requirements of the Endangered Species Act, and allows the Bureau to operate Upper Snake projects in ways harmful to endangered salmon and steelhead.

In filing the lawsuit the groups stressed that they do not immediately seek additional flows from Idaho reservoirs to aid the fish during their journey to and from the Pacific Ocean.

The water users' and governor's opinions differ greatly from those of the conservation groups regarding the value of supplementing flows as a tool to improve migration conditions. State officials are also wary about the lawsuit's intent.

"While Idaho believes that flow augmentation from the Upper Snake River is not scientifically justified, the state has cooperated with the Bureau in securing flow augmentation water through voluntary rental arrangements with Idaho water users," Wasden said in press release issued last week. "We cannot sanction, however, efforts to ignore state law and take water that is essential to Idaho's economy."

Idaho water users and the state of Idaho have for the past 10 years willingly worked with the federal government to provide as much as 427,000 acre feet to water per year for use in flow augmentation efforts. As a result, more than 4 million acre-feet of water has been sent downstream.

The state expects that the plaintiffs will ask the court to increase water releases beyond the 427,000 acre feet now authorized by the Legislature, Wasden says. State studies of flow augmentation have shown that augmentation is ineffective and counter productive and that irrigation operations actually increase Snake River flows during the critical summer months, according to a press release from Wasden's office.

"While Idaho believes that flow augmentation from the Upper Snake River is not scientifically justified, the state has cooperated with the Bureau in securing flow augmentation water through voluntary rental arrangements with Idaho water users," Wasden said. "We cannot sanction, however, efforts to ignore state law and take water that is essential to Idaho's economy. By intervening, Idaho will be in a position to contest any allegations that the current system of voluntary flow augmentation is inadequate to protect endangered and threatened salmon and steelhead."

The fishing and conservation groups insist that the scientific evidence compiled by state, federal and tribal fisheries managers maintains that the flow augmentation boosts survival. That, in turn, helps boost the economies of fishing communities along the coast and river, they say.

But the Coalition counters that the withdrawn water has devastating effect on inland farming communities.

Official federal studies show that hundreds of thousands of acres of prime Idaho farmland would be dried up if the flow augmentation strategy was actually put into effect, according to the Coalition.

"The environmental community knows that flow augmentation is a failure and they know it would cripple our economy. It is crystal clear that their strategy now is to use the court threat to Idaho water as a misguided attempt to leverage Idaho into supporting efforts to breach the four federal dams on the lower Snake River," Semanko said.

"Despite more than a decade of cooperation by Idaho citizens, the environmentalists have loaded up their legal guns and fixed their sights dead set on plundering Idaho reservoirs of as much water as they can get. The Coalition is determined not to let that happen," Semanko said.

Idaho previously intervened in National Wildlife Federation v. National Marine Fisheries Service, the successful challenge to the validity of that FCRPS BiOp. U.S. District Court Judge James Redden denied the efforts of the conservation and fishing groups that brought the lawsuit to require federal agencies to include the operations of the Bureau of Reclamation's Idaho projects in the biological opinion addressing operations of the federal dams on the Lower Snake and Columbia Rivers.

The court had previously ordered the National Marine Fisheries Service (now known as NOAA Fisheries) to prepare a new biological opinion analyzing the impacts of the federal dams on the Columbia and Lower Snake Rivers on endangered salmon and steelhead. He also ordered NOAA Fisheries to determine reasonable and prudent measures that federal agencies can undertake to mitigate such impacts.

The Coalition consists of 50 organizations representing Idaho counties, cities, chambers of commerce, industrial and commercial water users, and agricultural groups. Copies of the Coalition's and other groups' motion to intervene can be viewed on the Internet at www.iwua.org, in the section titled "The Battle For Idaho's Water."

Related Pages:
Flow Augmentation for Salmon on the Lower Snake River Idaho Department of Water Resources: 1987 - 2003