Commentary: Idahoans must – once again – fight off a serious federal water threat

Idaho has periodically faced serious threats to its water sovereignty from an overreaching federal government.

In the early 1950s, when Len Jordan was Idaho governor, the feds wanted to build a massive dam on the Snake River in Hells Canyon. That would have usurped Idaho control of its upstream waters. Jordan stopped the proposal, opting instead for the three existing Idaho Power company dams in order to protect Idaho’s control of those waters.

The next water fight occurred after I was elected as Idaho attorney general in 1982.

Federal government sues state over Idaho National Laboratory water rights

Idaho Power had just received an erroneous decision from the Idaho Supreme Court, giving the company practical control of Snake River waters above its Swan Falls Dam in Ada County. Gov. John Evans and I were able to work together behind the scenes and across the political aisle to defeat that threat.

When we were able to get the conflict settled to the state’s advantage, the next federal threat raised its ugly head.

In December 1987, Congress was on the verge of approving legislation that would have given the feds the ability to control the flow of Snake River waters above Deer Flats Wildlife Refuge in Canyon County.

The matter was being handled behind closed doors in congressional offices. When my staff members learned that a political deal was being made to compromise the state’s interests, I blew the whistle, the Idaho water community erupted in anger, and the threat was brought to a screeching halt.

Anyone interested in the details can check out pages 337-345 of my book on the subject – “A Little Dam Problem.”

The latest threat to Idaho’s water sovereignty surfaced less than two months ago.

Shortly after it was announced that the Idaho National Laboratory had been selected as a finalist for designation as a Nuclear Lifecycle Innovation Campus, the Trump administration launched an extremely troubling lawsuit challenging Idaho’s ability to “administer” the federal water right at the INL.

In practical terms it means that, if there is a water shortage involving water rights in the INL vicinity, any reduction or mitigation would fall wholly upon the shoulders of other Idaho water users — farmers, fish producers and other folks dependent on those waters. The INL would be exempt.

Trump administration’s lawsuit claiming ‘supremacy’ over our water is a gut punch to all Idahoans

The lawsuit was filed against Idaho in the federal court in Boise on Sept. 11, without any attendant publicity from either side.

While the allegations focus primarily upon the INL water right, the complaint seeks much broader relief. The Trump administration wants “a declaration that the Idaho Department of Water Resources lacks the authority to administer federal water rights” and “an order permanently enjoining the Director of IDWR from exercising his authority” under any state law as to the United States or its agencies.

In short, the administration is asking the court to prevent Idaho from administering federal water rights anywhere within state borders. This is wholly without precedent and contrary to the determination of rights in the Snake River Basin Adjudication.

The agreement settling the Swan Falls water right fight called for filing a case in state court to adjudicate all water rights to Snake River Basin waters. That is, to quantify and prioritize those rights in court proceedings.

Idaho specifically sought and received approval to include all federal water rights under a federal law, called the McCarran Amendment, that permits federal claims to be determined in a state court adjudication.

Idaho’s petition in the Snake River Basin Adjudication sought both adjudication and administration of water rights in the Snake River Basin. Former Gov. Cecil Andrus and I signed the agreed-upon water right for INL in June 1990. The final unified decree entered by the judge in the Snake River Basin Adjudication recognized administration as an element of the decree.

A distressing fact about the current threat is that state officials have failed to alert the public about the danger of the federal lawsuit. Idahoans deserve to be informed of the nature of the suit and the challenge it presents to Idaho’s control of its water resources.

In years past, such a bald-faced federal intrusion into Idaho’s natural resource affairs would have been met with outrage by our state leaders. Quiet acquiescence to the water grab is unacceptable. Bipartisan public outcry could stop it.

Idaho’s water community and public land users deserve to get the facts, to understand how the lawsuit could affect their interests and to consider seeking intervention into the lawsuit to protect those interests.

The state must strongly oppose the suit. Our chances of prevailing, based upon the entire record, are excellent. There should be no political settlement that would endanger Idaho’s control of its vital water resources.

The economic future of the Gem State depends on defeating this unwarranted federal threat.