THE SNAKE RIVER BASIN ADJUDICATION – NEZ PERCE TRIBE WATER RIGHTS SETTLEMENT

1. THE SNAKE RIVER BASIN ADJUDICATION – NEZ PERCE TRIBEWATER RIGHTS SETTLEMENT Symposium on the Settlement of Indian Water Rights September 14 – 16, 2005 Moscow, Idaho Sponsored by: Native American Rights Fund Western States Water Council

2. Overview of Presentation I. Background of the SRBA and the Nez Perce/United States Claims II. General Overview of Agreement III. Nez Perce Tribal Component IV. Salmon/Clearwater River Basins Component V. Upper Snake River Basin Component VI. Federal Implementing Legislation VII. State Implementing Legislation VIII. Nez Perce Tribal Executive Committee Implementing Resolution IX. Conclusion

3. I. Background of the SRBA and the Nez Perce/United States Claims • The State of Idaho commenced the Snake River Basin Adjudication (“SRBA”) in 1987. • 150,000 water rights in the Snake River basin and all its tributaries, which includes the Salmon and Clearwater River basins, to be adjudicated and issued final decrees. • The SRBA is considered a classic “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. • Under the McCarran Amendment this included all claims by the United States and the Nez Perce Tribe.

4. I. Background - continued • The Nez Perce people have lived in north central Idaho for more than 10,000 years. • The Tribe is a party to several treaties and other agreements with the United States protecting its rights to land, water, and fishery resources. • The Tribe is keenly interested in restoring salmon stocks to levels which enable its members to harvest salmon for all purposes – commercial, subsistence and ceremonial.

5. I. Background - continuedSo, as a part of the SRBA, the Nez Perce Tribe and the United States, as trustee for the Tribe, filed in 1993 three different sets of claims to water rights, based on treaties with the United States from 1855 and 1863. Water rights were claimed for: • ONE: Instream flows in about 1100 streams and rivers throughout Nez Perce aboriginal territory to protect the Tribe’s treaty-reserved fisheries, based on the treaty reserved right of the Tribe and its members to ”take fish at all usual and accustomed fishing places.” • The next slide features the claim area:

7. I. Background- continued • TWO: Springs (about 1800 total) on federal, state and private lands, the veryunique right emanating from the expressly reserved right of the Tribe in its 1863 treaty to access and use all “springs or fountains” in the territory ceded by the Tribe in that treaty – approximately 7 million acres. • The next slide highlights the springs claim area in yellow:

8. 1863 Ceded Area

9. I. Background - continued • THREE: On-reservation consumptive uses – the classic “Winters” claims for homeland purposes. • Said purposes include agricultural, domestic commercial, municipal, industrial and cultural. • Claims were filed for all surface water sources on the Nez Perce Reservation -- rivers, streams, lakes -- and groundwater sources.

10. II. General Overview of the Agreement • Three Major Components to the Agreement: • Nez Perce Tribal Component • Salmon/Clearwater River Basins Component • Upper Snake River Basin Component

11. II. General Overview - continued The Agreement will become fully effective upon: • Congressional and Presidential approval (November 30 and December 8, 2004); • Idaho Legislature and Governor approval (March 2005); • Nez Perce Tribal Executive Committee approval (March 2005); • Federal agencies issue ESA biological opinions consistent with the terms of the Agreement (partial); and • SRBA Court enters a decree approving all water rights set forth in the Agreement (In process).

12. III. Nez Perce Tribal Component Water Rights: • The Tribe’s multiple-use water right [“Winters”] claims will be decreed in the amount of 50,000 acre-feet per year, primarily from the Clearwater River. • Individual Tribal members with an interest in an allotment can receive a portion of the 50,000 acre feet for agricultural purposes. • The Tribe’s 1863 Treaty claims to 587 springs on federal lands within its ceded territory will be decreed by the SRBA Court, and claims to 1,263 springs on non-federal (state and private) lands will be released. • The federal law based instream flow claims are to be released but instream flows will be held by the Idaho Water Resources Board – see later discussion.

13. III. Nez Perce Tribal Component - continued Resource Agreements: • The U.S. and Tribe have entered into agreements providing for tribal management of the Kooskia National Fish Hatchery and tribal co-management of the Dworshak National Fish Hatchery. • The U.S.and the Tribe have entered into a MOA for the shaping of the release of 200,000 acre-feet of water in Dworshak Reservoir as part of a flow augmentation plan to achieve salmon habitat improvements and recreational benefits.

14. III. Nez Perce Tribal Component - continued Trust Funds and Land Transfer: • The U.S. will establish a $60.1 million water and fisheries trust fund for use by the Tribe in: acquiring land and water rights, restoring and improving fish habitat, fish protection, agricultural development, cultural preservation, and water resource development. • The United States will provide $23 million sewer and water fund for construction of system projects for local Nez Perce communities. • Approximately 11,000 acres of BLM land within the boundaries of the 1863 Nez Perce Reservation were selected for transfer in trust to the Tribe. • The Settlement releases only certain water claims; it does not alter any of the Tribe’s treaty fishing, hunting, gathering and pasturing rights;

15. IV. Salmon/Clearwater River Basins Component Three Primary Elements: • The State will establish in-stream flows in 205 streams in the Salmon and Clearwater Basins identified in the Agreement identified by the Tribe as having special value. • There will be ESA Section 6 Agreements between the State and United States for forest practices on state and private lands, and private water uses, in certain areas. • A Habitat Trust Fund will be established to implement habitat improvement projects. Expenditure of one-third of the Fund will be directed by the Tribe; expenditure of two-thirds of the Fund will be directed by the State with input from the Tribe.

16. IV. Salmon/Clearwater - continued Instream Flows: • Flow protection will vary based on land classifications. Two-thirds of the land in this region is in federal ownership which facilitated the development of instream flows. • Instream flows are subordinated to future domestic, commercial, municipal and industrial (DCMI) uses and to an identified amount of water for other uses; • Of the 205 streams, 183 streams [“A List” Streams] will be quantified pursuant to a formula set forth in the Agreement; • Instream flows on the remaining 22 developed streams [“B List” Streams] will be negotiated at the local level in a process similar to the Lemhi Conservation Plan; and • Funding from the Habitat Trust Fund will make flow and non-flow improvements possible.

17. IV. Salmon/Clearwater - continued Section 6 Cooperative Agreements: • Under Section 6 of the ESA, the federal government is authorized to enter into cooperative agreements with states for the purpose of managing a program for conservation of protected species; • Under the Agreement, Idaho will implement two such programs – the “Forestry Program,” and the “Instream Flow Program”; • Under the Forestry Program, the Idaho Department of Lands will set up a voluntary enrollment program and private landowners will agree to implement measures for riparian areas and roads to improve habitat for aquatic species on enrolled lands. • Under the Instream Flow Program, private water users will also be able to enroll in a voluntary program for making flow and non-flow improvements and receive incidental take coverage under the Endangered Species Program.

18. VI. Salmon/Clearwater - continued The Habitat Trust Fund: • The federal government will provide $38 million for implementation of the Fund. • Habitat Improvement Fund will be used to implement the Section 6 Agreements, as well as provide for flow and non-flow benefits to important Tribal fishery habitat; • One-third of the Fund will be directed by the Tribe; two-thirds of the Fund will be directed by the State with input from the Tribe.

19. V. Upper Snake River Basin Component • The Upper Snake River flow component of the Agreement calls for a 30-year Biological Opinion (BiOp) issued by NOAA Fisheries covering all protected species affected by BoR Upper Snake operations. The BiOp was issued March 31, 2005. • The Flow Augmentation Program is based upon renewal of Idaho Code [42-1763B] for the 30 year term of the Agreement. • Under the Program, a maximum of 487,000 acre feet of water annually will be released for flow augmentation from the Upper Snake River for salmon. • BoR will lease up to 427,000 acre-feet of that total from Idaho water banks on a willing lessor basis. • BoR will either permanently aquire or rent an additional 60,000 acre feet of natural flow water rights to achieve the 487,000 acre feet.

20. V. Upper Snake Component - continued • Benefits to the mainstem Snake River fishery and habitat: • The Agreement firms up the annual flow augmentation water from the Upper Snake River, by providing greater assurance that the United States will be able to acquire up to 427,000 acre-feet of water, plus 60,000 acre-feet of natural flow rights, for flow augmentation for anadromous fish. • Minimum flows negotiated and defined by the Swan Falls Agreement will be decreed by the SRBA Court and held by the Idaho Water Resources Board. • United States will reinitiate consultation if BoR is unable to rent the water needed; or the protected species’ populations not responding;or species populations are de-listed; or changed circumstances occur.

21. VI. FEDERAL IMPLEMENTING LEGISLATION The Snake River Water Rights Act of 2004,Public.Law 108- 447 [Title X of Division J], 18 Stat. 3431 – 3441, was passed by Congress on November 20, 2004, and signed into law by President Bush on December 8, 2004. • Contains the following key provisions: • Section 4: • Approves, ratifies, and confirms the Agreement. • Section 6: • Requires the Secretary of the Interior to transfer 11,000 acres of Bureau of Land Management land selected by the Tribe to the Bureau of Indian Affairs in trust for the Tribe. • Section 7: • Holds the consumptive use and the springs water rights under federal law in trust for the Tribe, and authorizes the Tribe to lease water through a State water bank.

22. Section 8: • Establishes the Nez Perce Tribe Water Fisheries Fund and authorizes $60.1 million in appropriations between FY 2007 and 2013. • Establishes the Nez Perce Domestic Water Supply Fund and authorizes $23.0 million in appropriations between FY 2007 and 2011. • Section 9: • Establishes the Salmon and Clearwater River Basins Habitat Fund, and authorizes appropriations to the two Accounts of the Fund for FY 2007 through 2011 of $38.0 million. • Section 10: • Waiver of Nez Perce Tribe and United States claims to water in Idaho, and Tribal claims against the United States.

23. VII. STATE OF IDAHO IMPLEMENTING LEGISLATION – Chapter 150 of the 2005 Idaho Session Laws, enacted March 21, 2005 and signed into law by Governor Kempthorne on March 24, 2005. • Contains the following key provisions: • HB152 approved, ratified and confirmed the Snake River Water Rights Agreement of 2004; • HB153 amended existing Idaho Code § 42-1763B) to extend state law authority to BoR to rent water for the 30 year term of the Agreement; and • HB154 established the agreed minimum stream flow water rights and the Idaho Water Resource Board holds these rights in trust for the people of Idaho.

24. VIII. Nez Perce Tribal Executive Committee Implementing Resolution Resolution No. 05-210, was enacted on March 29, 2005, contingent upon the completion of all other provisions of the Agreement necessary to it becoming final.

25. IX. CONCLUSION “I tell you gentlemen, you are piling up a heritage of conflict and litigation over water rights, for there is not sufficient water to supply these lands.” John Wesley Powell, in an 1893 address to the International Irrigation Congress Somewhere in the heavens, Powell is laughing at us all!