Room packed for water rights hearing

BOISE – An array of high-powered Idaho interests praised the Nez Perce water rights agreement at a five-hour hearing Tuesday, but the audience was dominated by opponents of the pact.

Rep. Lenore Barrett, R-Challis, prompted an outburst of applause when she complained that opponents “feel like their concerns have been ignored by the state and everybody else,” and called for a slowdown in the approval process.

Michael Bogert, attorney for Gov. Dirk Kempthorne, said the House Resources and Conservation Committee hearing, filled with close to 300 people and held at Boise State University to accommodate the crowd, was just what’s needed. He said it’s time for the Legislature to act on the agreement that was reached nine months ago. The hearing continues today.

The complex agreement resolves the Nez Perce Tribe’s claims to virtually all the water in the Snake River. In the pact, the tribe gives up those claims forever in exchange for money, protections for endangered salmon and other fish, and a specified amount of water for the tribe’s use.

Congress already has approved the pact. The state Legislature and the tribe’s governing council must approve it by March 31 for it to take effect.

Jim Riley, president of the Intermountain Forest Association, told the lawmakers that his organization is proud to have helped negotiate the agreement. “Overall, it will reduce a great deal of litigation over state and private forestry in Idaho,” he said. “Our forest industry has existed under the chilly pallor of endless litigation for 30 years.”

Riley said his group’s members – forest owners and businesses throughout the state – got involved because sawmills and paper plants hold water rights. But the agreement went well beyond water rights by addressing Endangered Species Act concerns that threaten timber operations, he said. Timber interests wanted programs that provided incentives for them to participate, he said, and also wanted support for Idaho’s existing forest practices laws.

“I’m very proud of the result,” he said. “It is not perfect, but it is much better than the alternative, which is no program at all.”

House Speaker Bruce Newcomb said the agreement is “very important to the welfare of this state.”

“Yes, there are components of this agreement that give me angst,” Newcomb said. “I would hope as we go through this process that we can disagree without being disagreeable.”

Rebecca Miles, secretary of the Nez Perce Tribal Executive Committee, the tribe’s governing body, told the legislators, “I support this agreement as the most intelligent alternative available both for my people and for the state of Idaho.”

Miles said the tribe signed treaties with the United States in the 1800s that guaranteed its members rights to hunt, fish and gather on the lands they had occupied for thousands of years. “For the tribe, the proposed settlement at its core is about water for fish and water for the Nez Perce people in fulfillment of the 1855 and 1863 treaties with the United States,” she said.

Terry Uhling, general counsel for Simplot Corp., spoke on behalf of water users who helped negotiate the agreement. “I can tell you this agreement is far from perfect. It is a massive undertaking,” he said. But, he said, “What we came out with was a reasonable solution for all the folks in the state.”

Uhling said it protects “folks who spend their lives every day making a living on this ground.”

The agreement protects existing uses of water in the region. While it sets minimum stream flows, future water development still would be allowed. Under the agreement, the federal government will issue a 30-year biological opinion on measures to help endangered salmon, including water flows from Idaho.

Questioned by Rep. George Sayler, D-Coeur d’Alene, Bogert told the lawmakers that “it would be unlawful” for the agreement to be used in any way to demand more Idaho water from Lake Pend Oreille or Lake Coeur d’Alene.

John Keys, commissioner of the U.S. Bureau of Reclamation, said, “The bottom line is the settlement will not solve all of Idaho’s water problems. But without this, solving them becomes much more difficult.”

The Nez Perce agreement is a key piece of the huge Snake River water rights adjudication, an attempt to resolve conflicting water rights claims from thousands of users. The tribe’s claims could potentially have pre-empted everyone else’s.

Earlier, a Snake River Basin adjudication judge rejected the tribe’s off-reservation instream flow claims, a ruling now on appeal to the Idaho Supreme Court. But at the hearing, state Water Resources Board Chairman Jerry Rigby said even if that ruling were upheld by the U.S. Supreme Court, it wouldn’t give the state as many benefits as the much farther-reaching agreement – and it would take years of costly litigation.

Former state Rep. Chuck Cuddy, D-Orofino, who has been lobbying against the agreement, stood at the back of the room, grumbling. “If it’s such a good deal, how come it needs such an effort to sell it?” he asked, waving a hand at the crowd and the assembled officials.

Representatives of four stakeholder groups gave comments for and against the agreement and were evenly divided. Today’s portion of the hearing will include additional presentations, public testimony and the committee’s vote.