New water war in Custer and Lemhi counties
Commentary by Anna Means
The recent Idaho Supreme Court ruling on wilderness
waters is the latest crisis for Blaine County’s northern cousins in Custer and Lemhi
counties.
The ruling is perceived by Custer and Lemhi residents as another case
of the federal government rubbing salt in a wound, even though it was a state court that
did the rubbing.
The wound springs from the time-honored conservative view that the
biggest landowner, the feds, are ruining the economy and future of this part of central
Idaho.
Custer and Lemhi counties are third and fourth, respectively, in size
in the state, but there’s little private land within those borders. While that may
keep neighbors out of the backyard it's hell on the economy. There's not much land to tax
and industry (as in decent-paying jobs) is often limited to working on federal lands.
Now the feds have been granted all the unappropriated waters in three
wilderness and one recreation area effective on the dates of designation. One place
affected is the Frank Church River of No Return Wilderness which was created in 1980.
At first glance it’s hard not to yawn. So what? How much commerce
goes on around Marsh or Bear Valley creeks?
A quick trip to the map illustrates the problem: the main Salmon River
glides past Stanley, Challis and Salmon before it runs through the wilderness.
Compounding the problem is that the feds claimed all groundwater in
addition to surface water.
In reaction to the high court's decision, the Idaho Department of Water
Resources (IDWR) declared a moratorium on all unprocessed and any future claims to
groundwater in the affected area. About 60 of the 90 claims are in Custer and Lemhi
counties. Though the IDWR has exempted domestic wells from the moratorium, on the grounds
that they provide "non-consumptive" water use, wells drilled for municipal water
supplies since 1980 are included. Challis, for example, has two such wells.
If you follow IDWR's logic, no new development can occur within these
two counties in perpetuity.
IDWR is also saying if the feds declare they need all their wilderness
water, those with a junior right have to hand over their water. There’s debate as to
whether this is as devastating as the locals claim. It’s not likely the feds will
call a priority. Still, it does seem like an imposition to be told that while the rest of
the West feverishly develops remaining open space, Custer and Lemhi have to stay rural and
rustic.
The feds are now arguing that management of the main Salmon falls under
the Wild and Scenic Rivers Act, so is not affected by the wilderness ruling. Fifth
District Court ruled last summer that Congress had intended the Salmon to be managed under
the Wild and Scenic Rivers Act, and not under wilderness restrictions. To that end the
feds were granted qualified (they have to prove how much they need) rights. A look at the
actual water claims shows language saying "waters within" the wilderness, not
"feeding into" or "eventually passing through."
IDWR refuses to budge or even discuss the Wild and Scenic vs.
Wilderness point of contention. They stick to the director’s decision that says the
state Supreme Court didn’t make it clear that the main Salmon was excluded. True,
there’s some glitchy language in the district court decision that could muddy
one’s interpretation. And if the feds weren’t including the main Salmon, why did
they file on some of its tributaries?
Still, one has to wonder if IDWR didn't jump the gun in issuing the
moratorium.
If the Idaho high court refuses to reconsider its decision, the
argument will move on to the U.S. Supreme Court. States don’t always fare well in
that venue.
Meanwhile, we Salmon River guys and gals won't know if the next flush
is ours. Some believe living as a pawn in limbo has become a way of life around here.
Anna Means is a reporter for the Challis
Messenger.
