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Commentaries and editorials

Towns Won't be Compensated
for Water Drained from Dworshak

by Dean Ferguson
Lewiston Tribune, January 18, 2005

Area lawmakers want to know why communities in southern Idaho enjoy reimbursement

BOISE -- Southern Idaho communities will get $2 million to offset economic losses from the proposed buy of 60,000 acre-feet of irrigation water. But, communities around Dworshak Dam won't get anything for flushing water each year from the reservoir.

Legislators want to know why.

The state's top natural resource attorney, Clive Strong of the Idaho attorney general's office, briefed the House Resources and Conservation Committee Monday on the proposed settlement between the state and the Nez Perce Tribe.

In return for dropping water claims to the Snake River and tributaries, the tribe gets rights to 50,000 acre-feet of Clearwater River water and $90 million in cash -- much of which must go to habitat and infrastructure projects.

Unlike senators at two briefings last week, these legislators had plenty to say.

When Strong noted communities around Milner would get $2 million after the federal government purchased water rights from irrigators, Rep. Ken Roberts, R-Donnelly, wanted to know why Dworshak Reservoir didn't enjoy a similar deal.

Roberts and fellow District 8 Sen. Skip Brandt, R-Kooskia, both oppose the agreement. District 8 Rep. Paul Shepherd, R-Riggins, has not made up his mind.

"The economy takes a $4.5 million hit per year just with water going out of Dworshak," said Roberts, quoting a University of Idaho study.

Strong noted the U.S. Army Corps of Engineers has "unfettered discretion to operate Dworshak."

The Orofino area benefits from the agreement because the tribe and the state will now have a say about some of the water released from Dworshak, possibly keeping the reservoir full longer for tourism, he said. Dworshak drawdowns are intended to help flush young salmon and steelhead down to the ocean.

Roberts also questioned the 30-year limit placed on the state's responsibilities under the agreement.

The agreement with the tribe is final, said Strong. After 30 years, the state would consult with upper Snake River water users and consult about agreements made to satisfy the Endangered Species Act. For instance, minimum flows could be dropped if the fish recovered.

Strong predicted that 30 years would tell the tale of endangered fish.

"Either they make it back from the brink of extinction or they go extinct," he said.

Legislators also asked Strong about a voluntary forestry program for Endangered Species Act protection.

The state contends that timber harvest is environmentally safe under the Forest Practices Act, said Strong. But the timber harvesters are not operating at the minimum level on state endowment lands, he said. The restrictions in the voluntary forestry program are consistent with riparian and road measures in state harvest plans.

"It absolutely does not impose a new burden on timber harvesters," said Strong.

So, enrollment in the program is only insurance against incidental killings of endangered species.

Legislators asked Strong to explain why the state had to deal with the tribe in the first place.

"I personally don't think the tribe has a case," said Rep. Lenore Barrett, R-Challis, recalling that Idaho 5th District Court Judge Barry Wood already ruled against the tribe.

Strong reminded Barrett the judge ruled the tribe had no standing to claim water outside of its reservation boundaries. The judge did not address water claims within the boundaries.

Barrett also worried the Nez Perce agreement might hurt the state as it faces lawsuits from other tribes, such as the Shoshone-Paiute on the Duck Valley Indian Reservation near Nevada.

"I don't care if they don't have a basketful of dirt," she said. "I don't want to give them any money."

Strong noted agreements with tribes are common throughout the West. Each tribe has its own very specific treaty with the U.S. government. For that reason, the Nez Perce agreement wouldn't affect other cases.

He also told representatives the proposed settlement agreement was only one of two alternatives. The state can still opt for what he called, "costly and time-consuming litigation."

Dean Ferguson
Towns Won't be Compensated for Water Drained from Dworshak
Lewiston Tribune, January 18, 2005

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