Murky waters

State, Tribe, property owners, Avista, others embroiled in water rights process

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JAKE PARRISH/Press Harrison residents Carla and Verland Woempner have gone through the water adjudication process, and believe the water rights should remain with the State of Idaho. The couple, along with their dog Misty, are photographed here on Thursday on their 152-acre property overlooking Lake Coeur d'Alene. The property has been in Verland's family for three generations.

COEUR d'ALENE — When it comes to water rights, don't tell Pam Secord to just go with the flow.

Secord, a property owner near St. Maries, is chairwoman of the North Idaho Water Rights Alliance, among several groups and hundreds of property owners embroiled in the water rights process for the Coeur d'Alene-Spokane River Basin that resulted in about 11,000 claims to be reviewed and possibly decreed by the courts.

"When you look at water with the big picture, everything feeds into the lake," said Secord, using Lake Coeur d'Alene as an example. "It's a long process, broad-based and a lot of people could be impacted."

Secord said the alliance's mission is to ensure that no property owners or agencies that currently rely on surface and groundwater gets left behind, but added that's a tall order when there's so many stakeholders involved and there are a lot of unknowns through the court process.

"Our goal is that everybody gets a right, including the Coeur d'Alene Tribe, but it can't be detrimental to anybody," Secord said. "We want the resources equally shared and not based on an ethnic group or economic group. It should be equally shared among everybody who lives and derives income from here.

"It's not an easy process."

The process, called adjudication, will enhance the value of a water right holder's property by giving certainty to their water, including rights held by the United States, tribe, state, local governments and private owners.

The Idaho Department of Water Resources began rolling out North Idaho's version of the statewide adjudication process seven years ago, but the process is a long way from finished as less than half of the claims have been decreed by the court.

Not every property owner, including residential city water users and irrigation district customers, have a water right.

Lake Cd'A debate

At the heart of the process is uncertainty regarding water rights around Lake Coeur d'Alene involving the tribe, state and federal governments and property owners that has drawn court filings from all sides.

Interpretation of historical documents related to the tribe and how those should apply to water rights today is being debated.

"The big issue is the lake and what will happen with it," said Clive Strong, deputy attorney general who is involved in the proceedings. "It's the centerpiece of North Idaho where people recreate and live. With these types of cases, the law is not well-settled so it creates uncertainty with the parties."

Strong, who was also involved in the Snake River adjudication, said that process took 27 years to complete and it finally finished in 2014.

"I don't see any way that (the Coeur d'Alene-Spokane River Basin process) should take 27 years," he said.

The United States filed 353 claims on behalf of the tribe in the basin.

"This is the tribe's only shot to quantify our water rights for present and future generations," said Heather Keen, the tribe's public relations director. "None of the tribe's claims seek to alter the way the lake is currently managed."

She said the tribe's goal is to make sure there's enough water for people living on its reservation and to ensure the lake and its waters are protected for Idaho's people, fish and wildlife.

"Right now we are still open and able to negotiate individual claims, but there is a parallel litigation track that is also moving forward," Keen said. "At some point in the future the time to negotiate will run out and everything remaining unsettled will be left to settle in the courts."

All sides — the state, tribe, Avista and property owners — agree that the lake's summer level should be maintained at 2,128 feet from the end of May until after Labor Day. Avista Utilities, through its dam license with the Federal Energy Regulatory Commission (FERC), maintains that level with its Post Falls Dam.

"Residents want to make sure the lake is maintained under its current conditions," Strong said. "If everybody agrees to the current operation and nothing changes, there's nothing to be afraid of. But there's a concern over what if the Post Falls Dam goes away or there's some change in policy. The big issue is control and regulation. We all know that, over time, policies and objectives can change."

Sen. Bob Nonini, R-Coeur d'Alene, who has been involved in water rights discussions, said he believes the water should remain under the state's control. He said ongoing negotiations that started a year and a half ago between the tribe, feds and the state's Attorney General's Office have been productive, making him feel optimistic about an out-of-court agreement.

"Hopefully we can reach a result that's amicable to everybody," he said.

Nonini said he doesn't believe the adjudication process in North Idaho will last as long as it did in other parts of the state.

"In this part of the state we're spoiled because we have a lot of water," he said. "This isn't about people being cut off from water but who controls the water — the feds and the tribe, whether the state maintains control or it's jointly controlled."

Secord said some of the concern is generated from what has happened with water rights in other areas, including Montana.

"Tribes have been able to reach backroom deals with the states and nobody knew what was happening," she said.

The result, she said, was that water was shut off to farms and power was shut off at dams.

"It's what can happen when you have one entity that controls everything," she said.

Carla Woempner, who along with husband Verland own Diamond W Ranch in the Harrison area, said property owners did not have a voice in the process in some other areas and management of their water rights was given away or compromised.

"We don’t want this to happen here," Carla said. "The state of Idaho manages our North Idaho water resources and it should remain in state control.

"Residents in North Idaho need to be thankful for our state legislators who made it possible for property owners filing for water rights to have a voice in the process."

Resolution optimism

Secord believes there's still reason to be optimistic about a resolution based on Forest Service claims in the basin around St. Maries.

"It was a positive outcome for all parties — the Forest Service, people who enjoy the St. Joe River and water users," she said. "I don't see why, if two parties work for the benefit of everybody, negotiations can't work. Negotiation means having to give something up. It all depends on the willingness of both sides to negotiate."

Bruce Howard, Avista's environmental affairs director, said he also doesn't see a reason why resolution can't be hammered out.

"We think these issues should be settled between all parties," he said.

Howard said the dam relicensing process several years ago involved even more stakeholders in two states and compromise was struck.

"That should give people a lot of comfort," Howard said.

Avista filed non-consumptive state and federal water right claims related to its Post Falls Dam on its own behalf.

"Both sets of claims reference maintaining our ongoing operations at Post Falls Dam just the way they are," Howard said, adding that maintaining lake levels would not change as a result of the filings. "We're not taking sides with anyone.

"We have an obligation as the property owner and that's accountability to our customers around the lake and to protect water rights. We filed both state and federal claims because we don't know what the courts will determine. We didn't want to risk our water rights by not filing."

Rancher Linda Rider, who filed for water rights on Wolf Lodge Creek, said filing was the easy part. Now, she said, there's a "big cloud" hanging over the outcome of that claim and, as a result, irrigation and other water purposes at the ranch in the future.

"Our livelihood depends on it," she said. I assume we have a water right, but I don't know about the tribe's ability to control the tributaries."

Several area property owners involved in the water rights alliance, including Rider, have tapped the services of water law attorney Norm Semanko to guide them through the water rights process.

Keen said the tribe has been a proponent of negotiation as it is more cost-effective and more efficient than settling issues in court.

"Another benefit of a negotiating a settlement as opposed to litigating is that negotiation gives us the flexibilty to compromise and find a solution that works for everyone," she said. "As we move forward with this process, each claim will be addressed and settled in negotiations or they will be addressed in the court where there is a much more rigid and formulaic manner approach to settling the claims."

Some property owners are concerned that the tribe is trying to gain control of the water of the entire lake and its tributaries, not just what's on the reservation, based on the number and location of its claims, but Keen said the tribe didn't change management after ownership of the lake was determined 15 years ago so hopefully that reminder can ease fears during the water rights process.

Keen said the tribe's lake claim is designed to keep the status quo regarding water levels and management. She said there's actually more agreement among stakeholders about the future of water in the region than some folks realize.

"The levels would be uniform across the lake," she said. "Ownership of the lake was settled in the 2001 Supreme Court case (that determined the tribe owns the southern third and the state the upper two-thirds) and nothing in the adjudication will change that outcome. Keeping the lake at its current levels will benefit all of North Idaho — the economy, tourism, property owners, recreationalists and anglers."

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