NEZ PERCE TRIBE
WATER RESOURCES DIVISION AND OFFICE OF LEGAL COUNSEL
P.O. BOX 365 LAPWAI, ID 83540
Snake River Currents
(waw’amayq’áal) 14, 2001
Volume 1, Issue 14
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SRBA mediation talks continue to focus on framework terms and concepts that address the parties' respective concerns. As a part of recent discussions, tribal negotiators have looked at the health and condition of on-reservation streams. Upcoming discussions are expected to address flow protection in the Salmon and Clearwater basins.
Nez Perce Tribe Endorses Salmon Planning Act
The following is the text of a Nez Perce Tribe press release dated July 19, 2001.
The Nez Perce Tribe today endorsed bi-partisan legislation introduced to the U.S. House of Representatives calling for the planning and actions necessary to recover wild salmon and steelhead in the Pacific Northwest. The Salmon Planning Act was introduced by co-sponsors Representatives Jim McDermott (D-WA) and Tom Petri (R-WI).
“In this legislative session marred by repeated attempts to sacrifice salmon for increased energy production, the Salmon Planning Act is a welcome change,” said Samuel N. Penney, Chairman of the Nez Perce Tribal executive Committee. “This bill recognizes the importance of both salmon and reasonably-priced, reliable power to people of the Pacific Northwest.”
Through the Treaty of 1855 between the Nez Perce Tribe and the United States, the Tribe expressly reserved the right to take fish within the rivers running through and bordering the reservation, as well as at all usual and accustomed fishing areas throughout the Northwest. The Treaty recognizes the importance of tribal fishing to the cultural, spiritual, physical, and economic needs of tribal members and their families. However, since the early 1900s and the advent of the first dams on the Columbia and Snake Rivers, salmon returns to the inland Northwest have precipitously declined. Now, twelve stocks of Columbia and Snake River salmon and steelhead are listed under the Endangered Species Act and
a recent study estimates that Snake River spring chinook may be extinct by 2016 without proper recovery actions.
“We must begin planning today in order to make a thoughtful decision regarding the future of salmon and hydropower before it is too late,” stated Penney. “The Salmon Planning Act authorizes the planning and evaluation that must occur to allow the region to respond quickly if major actions are necessary to protect and recover imperiled salmon.”
The Act provides for peer review of biological opinions and calls for an economic feasibility study for the partial removal of the four lower Snake River dams. The bi-partisan legislation also ensures that the removal of the four lower Snake River dams will occur only if absolutely necessary to meet legal obligations under treaties and the standards of the Endangered Species Act and Clean Water Act.
“This bill activates many of the provisions required by the government’s salmon plan and federal statutes while protecting the needs of affected communities,” said Penney. “The Salmon Planning Act addresses the tough questions that must be answered if we are serious about salmon recovery. Instead of calling for the immediate breaching of the dams, this bill requires the studies, planning, and review necessary to evaluate all of the options available to ensure continued sustainable salmon returns to Idaho.”
“Salmon have no time for partisanship or delay.”
On-Reservation Water Right Claims Will be Reported to the SRBA Court Sooner Than Expected
The on-reservation water right claims filed by the Tribe and by the United States may be reported to the SRBA Court by the Idaho Department of Water Resources (IDWR) as early as April of next year. That is more than one year earlier than previously expected.
This category of the Tribe’s claims consists of water for a variety of purposes, including: domestic, commercial, municipal, and industrial uses; springs and ponds for livestock and wildlife; irrigation from surface water and from groundwater; water to develop wildlife habitat; recreation; and hydroelectric power production.
The procedure for establishing water rights in the SRBA begins with filing a Notice of Claim to a Water Right with IDWR which then prepares a report on each claim for the SRBA Court. Over 150,000 notices of claim have been filed since 1985 when the Idaho Legislature authorized the adjudication of all the water rights in the Snake River Basin – a river system that drains approximately 87% of the land area of the State of Idaho.
In order to handle such a large number of claims, IDWR divided the State into reporting areas and set staggered deadlines for reporting on various kinds of claims within each reporting area. Each reporting area includes one or more of the smaller drainage basins within the Snake River Basin.
After the deadline for each reporting area, the Director of IDWR files a report with the SRBA Court summarizing the claims in that area. The SRBA Court then sets a schedule for filing objections to the claims and for the claimants to respond to any objections – that is the point at which litigation begins.
The Tribe and the United States filed three categories of water right claims in March of 1993. Litigation began in 1995 on the instream flow claims (located both on the reservation and off the reservation), and in 1999 litigation began on the springs and fountains claims (located in the 1863 ceded area).
IDWR recently opened a field office in Lewiston and has begun processing claims located in this area of the State, including the Tribe’s on-reservation claims. Previously, IDWR had estimated that claims in this area would not be reported to the SRBA Court until approximately 2003.
BPA Agrees to Limited Spill
After saying that there would not be any summer spill for fish, BPA has decided that they will spill a limited amount of water to help juvenile salmon remaining in the river pass federal projects at two lower Columbia River Dams, The Dalles and Bonneville. BPA has agreed to 24 hour spill at The Dalles, and about 45,000 cubic feet per second for 5 hours per day at Bonneville Dam, depending on actual river flow.
The spill operation, originally planned to be maintained for two weeks, has been extended to last through August 26. BPA said cheaper power prices and a greater likelihood of achieving its winter storage target were the reasons for the policy change.
The spill, however, is much less than fish managers wanted. The Columbia River Inter-Tribal Fish Commission’s original proposal was for a spill of 600 megawatt/months (MW/mos.) at the four lower Columbia River dams. The spill program was designed not to have an impact on reservoir levels or power system reliability. It reallocates existing flows between spill and generation, and makes up the deficit in power supply through purchases from the electricity market. At BPA’s current rate, the total spill through August 26 will be about 200 MW/mos. They estimate the power could cost about $5 million.
There is disagreement about how much the spill will help fish survival. Some managers said that the spill would primarily help the run of fall chinook, which are targeted for significant harvest. BPA was concerned that without flows to wash juveniles downstream there will be higher mortality from predators. They also fear increased powerhouse mortality due to decreased flow through the turbines.
“There were once men capable of inhabiting a river without disrupting the harmony of its life.”
Ninth U.S. Circuit Court Victory for the Pyramid Lake Paiute Tribe
The 9th U.S. Circuit Court of Appeals reversed a lower court's ruling, and gave a victory to the Pyramid Lake Paiute Tribe in their efforts to keep water flowing into Pyramid Lake.
The case began when the town of Fernley in northwest Nevada applied to the Nevada state engineer to allow a series of additional water from the federal Newlands Reclamation Project. That project diverts the flow of the Truckee and Carson rivers to supply the needs of water users in Nevada. The fishery in Pyramid Lake, upon which the tribe depended, was devastated early in the 20th century by the project, which diverted most of the water flowing into the lake. A 1990 water rights settlement partially restored the flows, but drought has compounded the impacts of the diversions and lake levels remain of concern.
The tribe along with Justice Department officials sought to keep the water flowing into Pyramid Lake. They were against the transfers, maintaining that the water rights at issue had been forfeited or abandoned under Nevada state law. Under Nevada law, a water right is forfeited if it is not used for five successive years.
Nevada law, however, also states that the forfeiture statute does not apply to water rights that were vested or to appropriations made before the statute took effect March 22, 1913. If a water right is exempted from the forfeiture statute, it may be lost only through abandonment.
The Paiute Tribe requested that the state engineer not grant the water rights, and asserted that those rights should be forfeited to allow more water to flow into Pyramid Lake. The grounds for their position is that the rights have not been used for years.
The state engineer, though, approved the transfer of all but a few of the water rights. He asserted that Fernley was the bona fide owner of the water rights, and that the town had been paying the operation and maintenance fees for those rights.
The district court affirmed the decision of the Nevada state engineer that none of the water rights had been forfeited or abandoned.
But the 9th U.S. Circuit Court of Appeals disagreed, and ruled in favor of the tribe.
The Pyramid Lake Paiute Tribe resides on a half million acre reservation in Nevada that surrounds Pyramid Lake.
If you have any questions or comments, please contact Barbara Inyan in the Water Resources Division, (208) 843-7368, firstname.lastname@example.org