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Nez Perce Water Deal Unveiled Today by Rocky Barker The Idaho Statesman, May 15, 2004

Parties must agree to plan by March 31, 2005

Details of a water agreement reached in April by the Nez Perce Tribe, the state of Idaho, the federal government and irrigators will be announced today in Boise.

Interior Secretary Gale Norton and Gov. Dirk Kempthorne are among the dignitaries who will outline the deal that still needs approval by Congress, the Legislature and tribal leaders by March 31, 2005, to be made final. The agreement will be announced at noon at the Idaho Shakespeare Festival amphitheater.

Under the agreement, the tribe waives a portion of its water rights claims for a package of protections for salmon, benefits for the tribe and other actions by the state and federal government, according to earlier court appearances.

The parties told Idaho District Judge John Melanson on April 20 they had reached an agreement on the tribe's claims to all of the water flowing in the Snake River and its tributaries. The details have been kept from the public under court order.

The tribe based its claims from an 1855 treaty, in which the tribe gave up rights to much of Idaho, Oregon and Washington but retained its right to fish for salmon and steelhead. Tribal attorneys argued that since fish need water, the fishing rights represented a water right.

Idaho law says those with the oldest water right get the water first. If the Nez Perce claims were recognized, other users, such as farmers and manufacturers, might have had less water to use, have to pay more for it, or have to completely stop using it. That would have devastating effects on Idaho's economy.

An Idaho judge ruled in 1999 that the tribe's fishing rights did not entitle the tribe to rights over the entire river. The case is pending before the Idaho Supreme Court.

The current battle began in 1977, when a group of Idaho Power Co. customers sued the company over declining streamflows at dams on the Snake River. They said the company wasn't doing enough to prevent upstream farmers from reducing the flows through its hydroelectric turbines. That meant less electricity and, thus, higher prices.

Idaho Power then sued the farmers and their irrigation companies, contending they were using its water illegally. In 1983, the Idaho Supreme Court ruled for Idaho Power. In 1984, Idaho Power and the state struck a deal, known as the Swan Falls Agreement, based on the name of the dam for which the company had historic water rights. Idaho Power took less water than it had a right to claim; the state agreed to determine who owned what water and decide whether any was left for new development.

Everyone who used water in Idaho was required in 1987 to refile or file their claims with the Idaho Department of Water Resources. The agency sorts through the claims and makes recommendations on each claim to the state court about who owns how much water. The court then rules on the validity of the claims.

This process, called the Snake River Basin Adjudication, is working through 180,000 claims at a cost to Idaho of more than $40 million.

The Nez Perce dispute is the largest remaining issue, and the resolution of the other claims hinges on its outcome.