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NEZ PERCE TRIBE WATER RESOURCES DIVISION AND OFFICE OF LEGAL COUNSEL P.O. BOX 365 LAPWAI, ID 83540 Snake River Currents |
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| October
(hooplal) 9, 2001 Volume 1, Issue 16 this
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Current Events—Mediation SRBA mediation talks have slowed in recent weeks, in part due to travel difficulties resulting from the September 11 attacks. Tribal negotiators have focused recently on potential benefits to on-reservation tribal resources. Upcoming discussions will continue to address flow protection in the Salmon and Clearwater basins. IDWR Establishes Two Groundwater Management Areas Drought conditions are severe in Idaho, and the result is that groundwater use has impacted surface water users’ rights. In response the Idaho Department of Water Resources (IDWR) has established two groundwater management areas (GWMAs) in southern Idaho. The action enables IDWR to strictly regulate groundwater use in those areas. The two new GWMAs are American Falls and Thousand Springs. The American Falls GWMA covers an area on either side of the Snake River from just west of Shelley going westward to a point just west of the Minidoka Dam. The Thousand Springs GWMA is located on the north side of the Snake River, starting approximately at Kimberly and ending east of King Hill. Groundwater use in the two GWMAs has reduced flows from springs that feed the Snake River. Surface water users who obtain their water either from the springs or the Snake River are impacted. The problem is that most of the surface water users have senior rights to those of the groundwater users. Under the Prior Appropriation Doctrine, which is law in Idaho, senior users are entitled to their full amount of water before junior users get any water. The GWMA action allows IDWR to limit groundwater use by junior users until the senior rights have been fulfilled. IDWR was prepared to issue curtailment orders on groundwater use within limited areas of the GWMAs, but an agreement in principle has been reached between the junior and senior users. Officially the curtailment on groundwater use has been stayed. This means that the process has been stopped, but the legal rights of the parties involved are protected and remain in place. If the agreement is not finalized, the process can continue. Basically, the agreement states that the groundwater users will acquire storage water to fulfill the rights of the surface users. If storage water cannot be obtained and the drought persists, then the groundwater users will cut back. The cutbacks will be spread uniformly among the users so that they are all proportionately impacted. One of the problems still to be resolved is that some of the rights holders were not included in the negotiations of the agreement in principle. Those users will now have the opportunity to satisfy themselves regarding the process and the agreement.
The Fort Peck-Montana Compact The Fort Peck-Montana Compact was ratified in the spring of 1985. It is the largest Indian water rights settlement in history. The Nez Perce Tribe and the State of Idaho can benefit from the experiences of the negotiations in Montana to help reach an agreement. In 1979, the State of Montana revised its Water Use Act to create a state court adjudication process for the comprehensive adjudication of water rights, which includes federal and Indian reserved rights. The Montana State Legislature created the Montana Reserved Water Rights Commission, which has the authority to negotiate with Indian Tribes and federal agencies. Negotiations between the Sioux and Assiniboine Tribes of the Fort Peck Reservation and the State of Montana began in 1980. By the fall of 1982, a compact had been negotiated with the Fort Peck Tribes. However, neither the Fort Peck Tribal Council nor the Montana Legislature would ratify the compact because of various concerns. Negotiations between the State of Montana and the Fort Peck Tribes then broke down for a period of 18 months. Negotiations resumed in 1984. The second round of negotiations resolved the outstanding differences, and the parties reached another agreement. The Fort Peck Tribal Council and the Montana Legislature approved the compact in 1985. It was also approved by the U.S. Attorney General and the Secretary of the Interior. The most important provision of the compact is the determination of the Tribal water rights. The Fort Peck Tribes are able to divert water from the Missouri River and its tributaries that flow through the reservation. The total water right is for 1,050,472 acre-feet each year, and has a priority date of 1888. On the reservation, Tribal water can be used for any purpose. If it is used off the reservation, then it must be put to a beneficial use as defined under state law. The Tribes can transfer water to non-Indians both on and off the reservation. The Fort Peck Tribes were able to establish instream flows on the reservation for fish and wildlife in the tributaries of the Missouri River. The Tribes were also given a year to adopt a water code, and they have final and exclusive jurisdiction to administer Tribal water rights. The compact allowed the State of Montana to administer non-Tribal water rights within the reservation. A special Fort Peck-Montana Compact Board was established to resolve conflicts over water use between individuals with Tribal water rights and non-Indians with water rights under state law. The Compact maximizes the Tribes’ ability to use the water, both on and off the reservation, without federal or state interference. It reflects both Tribal and State interests and compromises because each government participated as a sovereign in the negotiation process.
Drought, Lack of Spill at Dams Lead to Juvenile Fish Deaths This year’s drought combined with the Bonneville Power Administration’s (BPAs) limited and poorly timed spill has resulted in very low in-river survival this spring and summer for juvenile salmon and steelhead. Yearling spring/summer chinook not barged through the gauntlet of dams from Lower Granite Dam on the Snake River to Bonneville Dam on the mainstem Columbia River had only a 23 percent survival rate. Steelhead had only a 4 percent survival rate. These rates are down considerably from the 2001 numbers of 49 percent for chinook and 39 percent for steelhead. This year’s flows were the second lowest on record—only 58 million-acre feet. Spring and summer river volume seldom reached the target levels set by the National Marine Fisheries Service 2000 biological opinion. There was no spill at lower Snake River projects where up to 80 percent of juveniles were barged. In the lower Columbia River, where there were limited spring and summer spills, spills were implemented too late to aid most of the juvenile migrants. The low flows and lack of spills also led to travel times through the turbines and bypass systems at dams that were some of the slowest on record. Slower travel times can lead to fish deaths through higher predation and stress on fish from higher water temperatures. There was also an increase this year in stranded emerging chinook at the Hanford Reach below Priest Rapids Dam. Significant variation in flow at Priest Rapids resulted in much higher stranding mortality than in the past several years. Along with all the bad news there was some good news. Despite the low flows, water temperatures seldom rose to lethal levels. This was primarily due to the use of colder water released from Dworshak Reservoir. This year's data also confirmed a positive relationship between spill and in-river survival, as well as a relationship between flow and passage. Using data from PIT-tagged fish from mid-Columbia projects, biologists looked at survival rates of yearling chinook and steelhead from the McNary Dam tailrace to the John Day Dam tailrace. They found that when spill began, survival rates increased from 79 percent to 90 percent for chinook, and from 31 percent to 38 percent for steelhead. The lower survival rate for steelhead may be due to their later passage when temperatures were warmer and flow lower. These results show that even during low flow times, there is a significant benefit from spill. Increased passage numbers due to natural events confirm these results. Passage at Lower Granite Dam this spring spiked along with spikes in flow levels. After a rain event in late April, there was an increase in both yearling chinook and steelhead passage. Water is H2 O, hydrogen two parts, oxygen one, but there is also a third thing, that makes it water and nobody knows what that is. D.H. Lawrence: “The Third Thing”
Idaho Water Facts State water surface 880 square miles Number of lakes more then 2,000 Largest lake Pend Oreille, 148 square miles
-- from IDWR web site If you have any questions or comments, please contact Barbara Inyan in the Water Resources Division, (208) 843-7368, barbarai@nezperce.org |
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