Snake River Basin Adjudication Reaches Milestone

Tribe, other parties, complete framework for resolution of water right claims. A step towards settlement.

Since 1998, the Nez Perce Tribe, the United States, the State of Idaho, local communities and other water users in Idaho have engaged in mediation as part of the Snake River Basin Adjudication (SRBA) to resolve conflicting water right claims in the Snake River Basin. The SRBA Court ordered that the mediation take place under confidentiality restrictions. The parties have now agreed on a “term sheet” which will guide the settlement of this case, outlines the responsibilities of the parties in fulfilling the agreement, and allows the court’s confidentiality order to be removed. Although the term sheet agreement does not represent the final consent by the Tribe, or any party, to a settlement of the Tribe’s water right claims, it captures important elements of a potential settlement.

SRBA HISTORY

The State of Idaho began the SRBA in 1987 in order to establish an accurate inventory of the nearly 150,000 water rights in the Snake River Basin. The SRBA is considered a “general stream adjudication,” and all claims to water rights in the Snake, Salmon and Clearwater River Basins had to be filed in the SRBA or be forever lost. Because of federal laws authorizing the determination of federal and tribal water rights in state courts, the Tribe had to participate in the process or risk losing its water rights. The United States also had to bring it water rights claims for federal lands in the SRBA

The Tribe and the United States (Bureau of Indian Affairs, Department of the Interior) acting as trustee of the Tribe, filed thousands of claims to water rights in the SRBA. There are three categories of claims: (1) Claims to water for consumptive use on trust and fee land within the Reservation, (2) Claims for certain springs in the 1863 ceded area (for access and stock watering); and (3) Claims for instream flows (to provide for fish resources and aquatic habitat).

Water Right Claims on Trust and Tribal Fee Lands Within the Reservation

These water claims are for a variety of purposes including water for fish hatcheries, cultural, domestic, commercial, municipal and industrial uses; water for irrigated agriculture, livestock watering, wildlife habitat, and recreation. Legally, these are referred to as “Winters” water rights.

Springs and Fountains Water Right Claims

These water claims are based on the Treaty of 1863 which expressly reserved the springs and fountains in the 1863 ceded area for Tribal members to use in common with non-Indians. The Tribe filed claims for one-half the flow of these springs, some of which are located on public lands and some on state or private lands.

Instream Flow Water Right Claims

The purpose of these water claims is to protect fish and aquatic habitat, both on and off the Reservation, in the Snake, Salmon, and Clearwater Rivers and their tributaries. The claims are based on Article 3 of the Treaty of 1855 which reserved the exclusive right of the Tribe to take fish on the Reservation and the in-common right to take fish at all usual and accustomed places outside the Reservation.

Hundreds of legal objections to the Tribe’s claims were filed, particularly the instream flow claims, because those claims could affect the rights of agricultural interests in southern Idaho to divert water to grow crops. The objectors include the State of Idaho, Idaho Power Company, irrigators in southern Idaho and other water users. And recently, the North Central Idaho Jurisdictional Alliance has entered the fray.

On November 10, 1999, the SRBA Court dismissed the Tribe’s off-Reservation instream flow claims. Even worse, in a misguided attempt to clarify the difference between on-Reservation and off-Reservation claims, the Court concluded that the Reservation was diminished by the 1893 Agreement between the Tribe and the United States under the Dawes Act. Because these issues are vitally important to the Tribe, notices of appeal were promptly filed by both the Tribe and the Department of Justice.

Why is the SRBA in State Court Rather than Federal Court?

Because of sovereign immunity, the federal government and Tribes historically could not be brought into state court to have their water rights determined. However, in 1952 Congress passed the McCarran Amendment which allowed federal water rights to be decided in state general stream adjudications.

In 1976, the Supreme Court ruled that the McCarran Amendment also applies to state adjudications of Indian reserved water rights, which are held in trust by the U.S.

Background on the Agreed Conceptual Framework for Settlement

After five years of negotiations, the parties have developed a framework for a proposed settlement agreement. The framework, or “term sheet,” is divided into three separate components: (1) the Nez Perce Tribal component; (2) the Salmon/Clearwater component; and (3) the Snake River flow component.

The proposed settlement agreement would: finally and fully determine Nez Perce claims to water rights in Idaho; set out the understandings and criteria necessary to provide long-term Endangered Species Act compliance for water use in the Snake River Basin in Idaho and for timber land management activities on state and private lands; and protect existing water uses.

The proposed settlement agreement does not: cover the operations of the Hells Canyon Complex; resolve the Tribe’s Endangered Species Act dispute with the Bureau of Reclamation for the operations of the Lewiston Orchards Irrigation District’s diversion system on Sweetwater and Webb Creeks; prevent the Tribe from filing certain claims against the United States for the construction of Dworshak Dam; or resolve the dispute over the impacts of the lower Snake River dams on fish. These issues will continue to be addressed in other forums.

The term sheet does not constitute a final settlement of the Nez Perce Tribe’s water right claims. The term sheet provides the basis for the final agreement. For a settlement to be reached, the parties must agree on the specifics of each component of the term sheet.

Nez Perce Tribal Component

In exchange for the Tribe’s agreement to resolve their water right claims, as well as to resolve other Tribal water-based claims, the proposed settlement would provide specific monetary and non-monetary natural resource benefits for the Tribe. The specific provisions of this component include:

The Tribe’s on-Reservation multi-use consumptive water right claims will be decreed in the amount of 50,000 acre-feet per year (an acre-foot of water is enough water to cover 1 acre 1 foot deep or 325,850 gallons), primarily from the Clearwater River. Water from tributary sources will be decreed only to the extent water is unappropriated and existing water rights are not injured.
The Tribe’s springs and fountains claims on federal lands within the 1863 ceded area will be decreed, while similar claims on non-federal (state and and private) lands will be waived.
BLM lands valued at $7 million will be transferred to the Tribe. The BLM recreational lands along the Clearwater River and Lolo Creek corridors will be excluded from this transfer.
The U.S. and Tribe will enter agreements providing for tribal management for Kooskia National Fish Hatchery and tribal co-management of the Dworshak National Fish Hatchery.
The U.S., the Tribe, and the State of Idaho will enter into an agreement for the use of 200,000 acre-feet of water in Dworshak Reservoir as part of a flow augmentation plan for salmon.
The U.S. will establish a $50 million water and fisheries trust fund for use by the Tribe in acquiring lands and water rights, restoring and improving fish habitat, fish production, agricultural development, cultural preservation, and water resource development.
The United States will provide $23 million for design and construction of sewer and water system projects for local Nez Perce communities.
In lieu of contracting 45,000 acre-feet of Payette River storage space for a 30-year term, the U.S. will pay to the Tribe the $10.1 million rental value of that storage space.

Tribal members not served by a public water system may receive water rights in one of two ways through the SRBA process. Tribal members who have an interest in an allotment will receive a portion of the water the Tribe eventually receives for its on-reservation water claims. Tribal members who own fee land (not held in trust by the U.S.) will receive a water right for that land if they filed a Notice of Claim to a Water Right with the Idaho Department of Water Resources (IDWR).

Salmon/Clearwater Component

The Salmon/Clearwater component incorporates three elements: establishes instream flows in approximately 200 rivers and streams identified by the Tribe as having special value; provides for increased resource protection measures for forest practices on state and private lands; establishes a habitat trust fund to implement habitat improvement projects.

Instream flows will be established and held by the Idaho Water Resources Board for nearly 200 streams of importance to the Nez Perce Tribe. These flows will permit existing uses to continue and provide for future domestic, commercial, municipal and industrial development and will limit future agricultural diversions of water. However, in streams where water use has been fully developed and aquatic habitat has been impaired, specific measures to improve habitat conditions will be identified through a process that brings the three sovereigns together with local landowners and community groups to identify habitat improvement measures that can be implemented. A specific list of “developed streams” was prepared as part of the term sheet.
Under the Forestry component of this agreement, riparian and streambank protection measures will reduce adverse impacts on habitat for aquatic species on enrolled lands. This voluntary program supplements existing Idaho Forest Practice Rules and provides a mechanism for timber harvesting activities on all state and private lands in the Salmon/Clearwater River Basins to comply with the Endangered Species Act.
A Salmon/Clearwater Basins Habitat Trust Fund will be established to provide funding for habitat improvement projects under both the flow and forestry programs described above. The Tribe will direct the expenditures of a third of the Habitat Trust Fund.

Snake River Flow Component

The Snake River flow component anticipates 30-year Biological Opinions (BiOps) from NOAA Fisheries and the U.S. Fish and Wildlife Service under the Endangered Species Act on continued operation of the Bureau of Reclamation’s projects in the upper Snake River Basin. These BiOps would address issues relating to flows from the Snake River above Brownlee Reservoir and the use of this water for flow augmentation. The significant provisions in this component include the following:

Minimum flows defined by the Swan Falls Agreement will be decreed instream flows by the SRBA Court to the Idaho Water Resources Board.
The State of Idaho will extend provisions of state water law for the term of the agreement to allow Reclamation to lease up to 427,000 acre-feet of water from Idaho water banks for flow augmentation.
The Bureau of Reclamation will be allowed to rent or acquire up to 60,000 acre-feet of consumptive natural flow water rights from the Snake River between Milner and Swan Falls for flow augmentation purposes. When added to the other rentals, this water will increase the total water available for flow augmentation to 487,000 acre-feet. The U.S. will compensate local governments for impacts caused by Reclamation’s acquisition of this additional 60,000 acre-feet.

Next Steps

Over the course of next year, the parties must complete the tasks outlined in the term sheet relative to quantifying instream flows and identifying habitat improvement measures for developed basins in the Salmon and Clearwater basins and complete United States-Tribal agreements for hatchery management, transfer of the BLM lands and Dworshak flow augmentation. For the settlement to be final, the parties must draft federal and state legislation which is adopted and obtain final tribal approval. Up until that time, the Tribe has the option of withdrawing from the proposed agreement.

Over the next few months, tribal staff and members of NPTEC will hold informational meetings with tribal members to discuss the details of the settlement framework and answer questions. Location and time of these meetings will be announced in future newsletters. Stay tuned!

Snake River Currents is published by Greg Haller, SRBA Coordinator for the Nez Perce Tribe Department of Natural Resources. For information regarding this newsletter, please contact Greg at (208) 843-7368 ext. 2612. For additional information about the SRBA and the proposed settlement of the Tribe’s claims, please contact Heidi Gudgell, SRBA attorney for the Nez Perce Tribe Office of Legal Council at (208) 843-7355 ext. 2381.

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