North Idaho prepares for water wars

Out-of-state demand growing for North Idaho water

By JEFF SELLE/jselle@cdapress.com 

COEUR d’ALENE – It’s a complicated process, but an important one when it comes to protecting individual water rights in Idaho.

They call it adjudication, but in simple terms it is a judicial process to determine who gets how much of Idaho’s water and when.

Idaho has a “first-in-time, first-in-rights” policy for allocating water, which means the older water rights get priority in low-water years.

Idaho also has a “use-it-or-lose-it” policy to ensure that water rights are put to a “beneficial use,” and not just secured as an investment.

The state uses the adjudication process to determine the age of the water right claims, and to prove the water is going to a beneficial use for state-based claims.

Federal-based claims have to be used for an “express purpose,” such as protecting the stream flows on wild and scenic rivers.

Adjudication is the process designed to prove that water is being used for those purposes, and to determine how long ago that right was granted.

It has been happening in North Idaho behind the scenes since 2008, but many local groups are just beginning to see the importance of getting involved in the adjudication process.

Many water users in rural areas began to take note of the process after the U.S. Department of Justice filed 353 water rights claims on behalf of the Coeur d’Alene Tribe.

“When the federal government gets involved, there is an unwarranted fear that individuals will be squeezed out,” said Helo Hancock, legislative director for the tribe. “But once the facts are out, people will begin to see what we are doing is in the best interest of the region.”

Hancock said the federal government gets involved in the state adjudication process whenever the process includes a reservation.

Adjudication has been happening for 20 years in southern Idaho, where the Snake River Basin Adjudication process will finally wrap up later this summer.

“That process got pretty contentious,” Hancock said. “But it is largely agricultural interests down there, and there wasn’t enough water to go around.”

Hancock said eventually the state sat down with the tribes in southern Idaho and worked things out.

He doesn’t think the Coeur d’Alene-Spokane River Basin Adjudication process will get as contentious as the southern Idaho processes did because there is much more water available.

Hancock said the number of federal claims sounds high, but 177 of those are “very, very small” claims for wetlands on tribal owned property.

“The bulk of the claims address what has to stay in the lake to maintain the lake levels,” he said. “We are protecting the lake and property owners around the lake.”

Much of that, Hancock reiterated, will come out soon in a negotiation process that is being put together this summer.

“We look forward to a productive process,” he said.

State Rep. Vito Barbieri, R-Dalton Gardens, authored House Concurrent Resolution No. 62, which deals with establishing the negotiation process. It passed unanimously in the legislature earlier this year.

“The Coeur d’Alene Tribe wanted to make sure that the state would negotiate,” Barbieri said. “And we wanted to make sure the individual water users have a seat at that table.”

Barbieri said the process is important to Kootenai County because Washington state could demand water from the Rathdrum Prairie Aquifer.

Last week, Gov. Butch Otter said out-of-state demands on southern Idaho’s water have been going on for years, and that’s why adjudication started there.

Lately, however, there are more and more out-of-state demands for North Idaho water, Otter said.

For instance, he said, there has been talk of drafting an extra 2 feet of water from Lake Pend Oreille to help cool the Pend Oreille River on the Washington side during the late summer months.

Otter sent a letter last week to the Pend Oreille Lakes Commission vowing to protect that water.

“I, too, am deeply concerned about the potential for federal government agencies to adversely alter summer and fall water levels on Lake Pend Oreille,” he said in the letter. “I want to stress that I intend to use all available means to protect the sovereign rights of our state to make sure the Lake Pend Oreille is first and foremost managed in accordance with the needs and interests of Idahoans.”

That’s why Barbieri said he is attending town hall gatherings and meeting with different organizations this summer to stress the importance of getting involved in the adjudication process.

“If Washington were to go to federal court to demand Idaho water, we want to make sure we have established water rights,” he said. “At this point we are touching bases with organizations in District 1.”

Barbieri said he would like to see the organizations get together and form a coalition that would take part in the negotiations on the federal claims filed for the Tribe.

“We would welcome any or all organizations to begin this process,” he said. “If they don’t participate, it’s on them.”

Barbieri said he didn’t feel comfortable releasing the names of the organizations he has met with, because his effort is just getting started.

“I would encourage everyone to start taking about this with their neighbors because more and more information will be coming out on this soon,” he said.

Gary Mitchell of the Northwest Property Owners Association said his organization has met with Barbieri and other legislators to discuss the issue.

“Right now we are trying to gather information and educate our members,” he said, adding that NPOA is also meeting with other concerned groups to possibly form a coalition.

“The Farm Bureau has shown some concern, and some of the mining companies in the Silver Valley are keeping an eye on this,” he said.

Mitchell said there is a lot to learn on the subject and only a short time for concerned water users to object to any of the federal claims.

According to Norm Semanko, director of the Idaho Water Users Association in Boise, the deadline to object to the federal claims is Sept. 29 of this year.

“Anybody who has filed a water claim has standing to file an objection,” he said.

After the deadline, Semanko said, the state will go through all of the objections and address them.

“They will determine if there are any claims that could be worked through,” he said, adding as a water-rights attorney, he already knows that there will be objections to the federal claims.

“I think I can say this without violating anything,” he said. “But I know there are a number of people up there who are likely to file objections.”