From left, panel members Paul Arrington, Garrick Baxter, Duane Mecham and John Simpson on Dec. 6, 2022, discuss the pact that covers water rights and uses of the Snake River throughout Idaho.

1. Agreement detail

BOISE — Thinking about the Nez Perce Agreement now — from short-term costs upstream to long-term benefits downstream — is well worthwhile even though the 30-year pact has 12 years remaining.

That was the common sentiment expressed in a panel discussion that was part of a joint water seminar Dec. 6 in Boise. The Idaho Farm Bureau Federation, and the state Water Users and Grain Producers associations hosted it.

The 2004 agreement between the Nez Perce Tribe and federal and state governments covers water rights and uses of the Snake River throughout the state. It’s set to expire in 2034.

Discussing the agreement publicly can help the state gather input and determine what its eventual position will be, said Garrick Baxter of the state attorney general’s office.

Understanding the agreement, including why it was negotiated and why it is important, is critical because “the time will go fast,” said John Simpson, attorney for state Water District 1, based in Idaho Falls.

“It has had success. … It did take leadership,” said Duane Mecham of the U.S. Bureau of Reclamation.

One provision of the agreement is that water must be sent downstream each year from the upper and middle Snake. The flow augmentation is not universally liked but has benefits, said panel moderator Paul Arrington, executive director and general counsel of the Idaho Water Users Association. It helps juvenile salmon and steelhead migrate downstream, and reduces the state’s legal risk, for example.

Other components of the agreement include protecting the tribe’s in-stream flow rights for its treaty-based fishery, tribal management of hatcheries, providing annual flow augmentation from Dworshak Reservoir — built on the North Fork Clearwater River by the U.S. Army Corps of Engineers for flood control — ensuring on-reservation domestic needs are met, and providing federal money for water and sewer projects.

Court cases in the last 15 to 20 years pertaining to the Endangered Species Act say a procedure to fix or remedy something must come with certainty it will be carried out, and any push to move away from a proven procedure reduces that certainty, Mecham said. At the same time, the agreement’s “sunset” after 30 years provides an opportunity to revisit it.

A Nez Perce Tribe representative was invited but did not participate in the panel discussion. A legal representative for the tribe could not be reached for comment.