Senate State Affairs Committee Minutes 2005 MINUTES SENATE STATE AFFAIRS COMMITTEE DATE: Friday, January 14, 2005 TIME: 8:00 a.m. PLACE: Room 437 MEMBERS Chairman Burtenshaw, Vice Chairman McKenzie, Senators Darrington, PRESENT: Davis, Stegner, Little, Stennett, Malepeai MEMBERS Geddes ABSENT/ EXCUSED: GUESTS: Clive Strong, Office of the Attorney General CONVENE: Chairman Burtenshaw called the meeting to order at 8:08 a.m. NEZ PERCE Presentation from Mr. Clive Strong, with the Attorney General's Office. AGREEMENT: Mr. Clive Strong, Division Chief of the Natural Resources Division for the Attorney General's Office, provided the committee with an unabridged version of the Nez Perce Water Rights Agreement as well as a short two-sided handout of the main points of the Agreement, which is attached to these minutes. Mr. Strong stated that this Agreement has a lot of support but added that it does not have unanimous support. The Agreement came about as a result of the Snake River Basin Adjudication. In 1987, the state commenced the SRBA to quantify all water right claims in the state of Idaho and to provide a comprehensive inventory of all the water rights. He explained that Idaho follows the prior appropriations doctrine. He stated that the federal Indian reserved water rights are an exception to state water law. Indian reserved water rights originated from the United States Supreme court case of Winters v. United States. This case involved the Fort Peck Reservation in Montana. Because all of the water supply had been fully appropriated under state law, there was insufficient water remaining to irrigate tribal lands. The Supreme Court held that the federal government must have intended to reserve sufficient water when the reservation was created to achieve the federal purpose of converting the tribe to an agrarian lifestyle. This water right was created under federal, not state law. Mr. Strong outlined the four types of claims filed by the United States SENATE STATE AFFAIRS Friday, January 14, 2005 – Minutes – Page 1 and Nez Perce Tribe in 1993. 1. instream flow water right claims based upon tribal fishing rights at all usual and accustomed fishing sites; 2. instream flow water right claims based upon the tribe’s exclusive right to fish on all streams within or bordering the Reservation; 3. consumptive use claims for domestic, municipal, commercial, industrial, agricultural purposes; and 4. claims for all the springs and fountains within the boundaries of the 1855 treaty. Mr. Strong explained that these four sets of claims in total would have preceded all existing state water rights. He explained that after a period of litigation in the mid 1990’s, Idaho Power, a group of Upper Snake River water users and the Nez Perce Tribe agreed it would be useful to enter into mediation and sought a court ordered mediation. This mediation commenced in late 1998, early 1999 and was conducted by Mr. Francis McGovern of Duke University. He added that this mediation included all water users. The State of Idaho agreed to participate in the mediation subject to the following conditions: 1) no federal instream flow water rights would be recognized; 2) no injury to existing water rights; 3) the settlement would be statewide; and 4) litigation would continue on a parallel track. Mr. Strong explained that the District Court issued a "Confidentiality Order" which some have misconstrued as secret negotiations. All parties to the SRBA were afforded an opportunity to participate in the mediation. He further explained that this confidentiality order allowed for discussions in a nonthreatening environment. The proposed agreement is the product of the mediation effort. Mr. Strong directed the attention of the committee to the notebook containing the aforementioned Settlement. He explained that there were five major components: the Nez Perce Tribe; Salmon/Clearwater; Snake River Flow; General Provisions, and at one time, an Idaho Power Company component. Mr. Strong explained that the agreement would recognize a federal reserved water right for consumptive uses on tribal lands in the amount of 50,000 acre-feet. Senator Davis asked if this amount was regardless of the date of appropriation. Mr. Strong replied that it was but added that the right cannot injure existing state water rights. Senator Stennett pointed out that this is an enormous amount of water. Mr. Strong stated that it is a relatively small amount of water given the flow of the Clearwater River. Mr. Strong explained that there are 1,800 Springs and Fountain claims filed on the Federal, Private, and State Lands. He stated that the Tribe SENATE STATE AFFAIRS Friday, January 14, 2005 – Minutes – Page 2 will relinquish the claims on the private and state lands. Chairman Burtenshaw asked if those rights on Federal land were used for irrigation or for grazing and livestock. Mr. Strong answered that they are used for grazing livestock and explained that the Tribe was nomadic and moved its livestock from fountain to fountain. Senator Little asked for the geographical area. Mr. Strong replied that this area extends throughout the Salmon/Clearwater Basin within the boundaries of the 1855 treaty. He said that he would provide the senator with a map. Mr. Strong explained that through this Settlement, the Tribe will receive, from the Federal Government, $50 million in a multiple-use trust fund that will be appropriated over time. In addition, the Tribe will receive a $23 million fund for the design and construction of sewer and drinking water systems for tribal communities and $10.1 million to be provided in lieu of payment for the rental of storage water from the Payette River System. Chairman Burtenshaw asked what that $50 million can be used for. Mr. Strong answered that it can't be used on per capita payments but can be used for acquiring lands and water rights, restoring and improving fish habitat, fish production, agricultural development, cultural preservation, and water resource development. Senator Stegner asked what the restrictions were for the $10.1 million. Mr. Strong explained that this money will be folded into the multiple-use trust fund. He stated that the Tribe will manage the Kooskia Hatchery and co-manage of the Dworshak National Hatchery. Chairman Burtenshaw asked about the 200,000 acre-feet in Dworshak. Mr. Strong explained that it is not a water right. He said that the Government was using the Dworshak Reservoir for flow augmentation. He stated that this Agreement would give the State and the Tribe some input on the decision of when to release water from Dworshak Reservoir. The objective is to hold the water behind Dworshak for the summer months. He added that the Tribe will also receive 11,000 acres of BLM land that was just appraised at around $5 million. He said that the federal grazing permits would continue through their term. Senator Davis asked how many permits and how long of life did each permit have. Mr. Strong responded that there are a total of 43 leases with a typical term of 10 years. Senator Davis followed up by asking if the land would be deeded ground and become a part of the reservation, or just stay deeded ground. Mr. Strong explained that with regard to the transfer of BLM lands, these lands would be held in trust by the United States as part of the reservation. Senator Stennett asked if the rental rates would stay the same, or would the Tribe set their own. Mr. Strong answered that there are 550 AUMs involved and that the current federal grazing fee is about $1.80 to SENATE STATE AFFAIRS Friday, January 14, 2005 – Minutes – Page 3 $1.90. He added that once the leases expire the Tribe would set the rental rates. Senator Little asked what the basis was for the flow augmentation. Mr. Strong reported that the federal government had shifted its theory for flow augmentation from volume to water temperature. Senator Little asked what if science doesn't bear out the temperature versus volume theory. Mr. Strong responded that the flow augmentation program could be terminated. Mr. Strong reported that the federal legislation included $200,000 as a one-time payment to compensate counties for lost payment in lieu of tax payments from the federal government. He said the federal government estimated that Lewis County and Nez Perce County would lose about $11,000 in PILT payments annually as a result of the transfer of BLM land. Idaho and Clearwater Counties will not lose any PILT monies. Chairman Burtenshaw asked which treaty these lands were acquired under. Mr. Strong replied that these lands were within the1863 Treaty boundaries. Mr. Strong then outlined the Salmon/Clearwater Component. He explained that water users in the Upper Snake River basin wanted a settlement that would resolve claims for water under the Endangered Species Act and the federal reserved water rights doctrine. In order to provide similar protection against ESA claims in the Salmon and Clearwater, the agreement provided for Section 6 Cooperative Agreements. Under the Section 6 Programs, a landowner may voluntarily enroll and receive incidental take protection under the ESA. The agreement creates an instream flow program, a forestry program, and a habitat improvement program. He said the State will implement these Section 6 programs under an agreement with the Federal Government. He added that the instream flow program is modeled after the Lemhi Basin Conservation Plan. The agreement provides for a habitat trust fund with $13 million under the control of the Tribe and $25 million under State control. The State is required to provide a 25% match to the federal monies, which can be in-kind services. Mr. Strong said that the Agreement did not change the existing Forest Practices Act and that any landowner choosing not to participate in the program would have no new obligations.