AGAIN, ON PAGE E-2, IDAHO CATTLEMEN AND COMPANIES WITH MAJOR LAND LIMITATIONS CONTAINED IN THIS PROPOSAL. DISPOSAL OF THOSE WERE AN OVERSITE BUT ONE TENDS TO ASSUME THESE OMISSIONS TO DATE THE SALMON RECOVERY PROBLEM PRIMARILY APPEARS NOT TO BE UNAVAILABILITY OF ACCEPTABLE SPAWNING HABITAT IN IDAHO, BUT, PER MY INQUIRIES, A PROBLEM OF RETURNING ONLY ENOUGH ADULTS ΤΟ UTILIZE LESS THAN 5% OF THESE AVAILABLE SPAWNING BEDS IN IDAHO. THEREFORE THIS RESTRICTIVE PROPOSAL APPEARS PREMATURE. AT THIS POINT, I QUESTION WHETHER THE SCIENCE THAT IS THE BASIS FOR PACFISH HAS HAD ADEQUATE PEER REVIEW AND SCIENTIFIC ACCEPTABILITY TO IMPLIMENT IMPACTS OF THE MAGNITUDE PROPOSED. PARTICULARLY WHEN THOSE WHO HAVE THE MOST AT RISK WERE EXCLUDED FROM CONSULTATION AND IMPACTS AS CRITICAL AS UNCONTROLLED WILD FIRE REMAIN TOTALLY UNADDRESSED. CLEARLY VERY LITTLE. IF ANY. CONSIDERATION WAS GIVEN TO ECONOMIC IMPACTS WHEN IT IS COMMON KNOWLEDGE THE FEDERAL AGENCIES HAVE NUMEROUS MODELS TO MAKE AN ANALYSIS OF THIS TYPE AT THEIR DISPOSAL. I BELIEVE RIPARIAN PROTECTION AND WATER QUALITY ARE IMPORTANT TO SUSTAINING ALL SPECIES OF SALMONOID BUT I AM FAR FROM CONVINCED THIS VEHICLE THROUGH UNJUSTIFIABLE EXCESSIVE RESTRICTION PROVIDES VERY LITTLE MORE THAN A MINOR POSITIVE IMPACT ON SALMONOID RETENTION AND RECOVERY AND A MAJOR NEGATIVE IMPACT ON AFFECTED ECONOMIES. I THEREFORE BELIEVE THE FINDINGS OF NO SIGNIFICANT IMPACT TO BE WITHOUT JUSTIFICATION AND I BELIEVE THAT A THOROUGHLY DEVELOPED ENVIRONMENTAL IMPACT STATEMENT THAT ADDRESSES. THE ADEQUACY AND CREDIBILITY OF THE INVOLVED SCENIC, RECREATIONAL AND ECONOMIC IMPACT SPECIFIC TO THE AFFECTED COMMUNITES IS FULLY JUSTIFIED. THEREFORE, I REQUEST IMMEDIATE ACTION ON PRODUCING AN E.I.S WHICH CANDIDLY AND THOROUGHLY ADDRESSES THE TOTAL ISSUE, AND IMPLEMENTATION OF THE CURRENT PROPOSAL BE RESTRAINED UNTIL THE PROFESSIONAL CRITERIA TO MAKE INFORMED CONCLUSIONS IS AVAILABLE. IT IS MY BELIEF THIS IS FULLY JUSTIFIABLE UNDER THE EXISTING CIRCUMSTANCES AND ARTICLE 7 OF THE ENDANGERED SPECIES ACT. CHARLES D. CUDDY STATE REPRESENTATIVE, DIST 7 STATEMENT PREPARED FOR WATER AND POWER RESOURCES SUBCOMMITTEE OF HOUSE COMMITTEE ON RESOURCES FRED KELLY GRANT OWYHEE COUNTY LAND USE PLANNING COMMITTEE OWYHEE COUNTY, IDAHO OCTOBER 5, 1995 SUBCOMMITTEE HEARING IN BOISE, IDAHO IMPORTANCE OF WATER IN THE WEST "Water is the lifeblood of the land." The expression has been so often used that it has become almost trite; so often used that authors Coggins, Wilkinson and Leshy have felt compelled to add to the expression to make it read "Water is TRULY the lifeblood of the land." (Federal Public Land and Resources Law, Foundation Press, 3d Ed., p. 363) The history of our nation focuses on the importance of water and bodies of water to development and growth. Military forts have been strategically placed at harbors, on lakeside sites, on overlooks above river banks, and at the confluence of merging streams; mills and factories have been erected near water supplies; towns and cities have been founded and have grown where water supply is plentiful. Battles have been waged over access to water---military battles and legal battles. But nowhere is water more critical than in the Western United States, that western frontier early and often referred to as The Great American Desert by easterners such as Daniel Webster who once proclaimed in Congress that "I will not vote one cent from the treasury to bring the Atlantic one inch closer to the Pacific than it already is." Only those who live and work in the western states realize just how critical to survival is access to water supply. I was not raised on a farm or ranch; during my youth I paid little attention to the arid nature of southwestern Idaho. After graduation from college, my wife and I spent four years in Chicago where I attended the University of Chicago School of Law. Living on the shores of Lake Michigan, and experiencing the plentiful rain AND SNOW of the Chicago area, we knew little of water shortage. We then spent the next decade in Baltimore, Maryland where shortage of water was rarely a topic of conversation. Only after returning to Idaho as adults did we become aware of the impact which water, and lack of water, has on the environment, the land and its people. Two very close friends, the Godparents of our sons, Frances and Margaret Winchester, moved from Baltimore to Idaho upon their retirement. They were amazed to observe flood irrigation of lawns and gardens, a process unknown and unnecessary in Maryland. They never tired of telling their friends in Maryland of their weekly need to irrigate in order to sustain plant life. When I worked in the administration of Governor John Evans I learned of the severe political and economic impact which results in this arid land during and after a period of drought. During that time, the Governor's staff devised a plan to seed clouds in the north of Idaho in order to induce rainfall. The plan brought forth formidable opposition from the late Dixie Lee Ray who was then Governor of Washington. I well remember her salty remarks threatening lawsuits and other retaliation during a conference call which ended the cloud seeding plan. My experiences in that office opened my eyes to the critical importance of ample water to life in these states. With sufficient water, this is a land of vitality. Without water, it is a land without life. To paraphrase Coggins, Wilkinson and Leshy, "TRULY, Water is the lifeblood of the west." Owyhee County's historian in residence, Michael F. Hanley, who is currently serving as the President of the Owyhee Cattleman's Association, has well stated the importance of water, our most vital resource: "When mass immigration began across the plains, over the mountains and deserts, diarists recorded hardships in arid reaches where alkali, dust and sand tortured them. They were going to various promised lands, some for adventure, but the majority for the opportunity to better themselves. "The...right of prior appropriation, or the first in use is first in right, was [established] and maintained as the cornerstone of individual and States rights. "Western citizens appropriated water and filed on it for various purposes including mining, milling, agriculture and domestic uses. There were of course problems, but the states worked through most of them in an orderly manner, with emphasis always on priority usage. So successful was the system that land considered worthless by immigrants and California 49'ers was transformed into productive farms and ranches. Pioneers who lived through this part of our history marveled at the changes they saw resulting from the appropriation of water." PRIOR APPROPRIATION DOCTRINE The principle of "First in use, first in right" became firmly established by practice in the California gold fields in the mid-1800's, and then in the settlements which developed to support the gold fields. The principle spread with settlement of the west. Ultimately the courts were called upon to validate the principle, and in Eddy v. Simpson, 3 Cal. 249 (1853) and Irwin v. Phillips, 5 Cal. 140 (1855) the California Supreme Court clearly established the prior appropriation doctrine, i.e., prior possession of water on the public land gives the exclusive right to its use. Even as the prior appropriation doctrine settled disputes between individual water users, there was a widely held belief that the rule did not apply to the Federal Government as the owner of the so-called public lands. So, it was believed that a patent holder or other grantee of the Federal Government could dispossess a miner or settler of their prior held water right. Some court decisions so ruled. Van Sickle v. Haines, 7 Nev. 249 (1872) and Union Mill and Mining Co. v. Ferris, 2 Saw. 176, 24 Fed. Cas. 594 (C.C. Nev. 1872). This belief may have directly lead to the enactment by Congress of the Act of 1866 which provided the pivotal turning point for development of western water law. The Act of 1866 was a mining law, but it contained a provision which critically impacted all water claims held by miners and all other settlers of the public lands: "That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid, is hereby acknowledged and confirmed..." The United States Supreme Court later stated that the purpose of this provision of the Act of 1866 was to "give the sanction of the United States, the proprietor of the lands, to possessory rights, which had previously rested solely upon the local customs, laws and decisions of the courts, and to prevent such rights from being lost on a sale of the lands." Jennison v. Kirk, 98 U.S. 453 (1879) In other words, the Congress did not CREATE possessory water rights in the Act of 1866; rather, the Congress ACKNOWLEDGED the existence of such possessory water rights which arose from local customs, laws and decisions of the courts, and extended protection to such rights. Four years later, in the Act of 1870, Congress reaffirmed the mandate that occupants of public land would be bound by state and local water laws when it provided that "all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights." In California, Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), the United States Supreme Court re-affirmed the Court's prior statement that the acts of 1866 and 1870 DID NOT CREATE possessory water rights, but rather ACKNOWLEDGED the existence of such rights and extended protection to them as accrued and in the future. The Court stated: "They [the Acts of 1866 and 1870] reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain." In so interpreting the Acts of 1866 and 1870 as ACKNOWLEDGEMENTS OF ALREADY EXISTING POSSESSORY WATER RIGHTS WHICH AROSE FROM LOCAL RULES AND CUSTOMS, the Court explained the history of the west which lead to passage of the Acts: "For the light which it will reflect upon the meaning and scope of [the acknowledgement of water rights provision] and its bearing upon the present question, it is well to pause at this point to consider the then-existing situation with respect to land and water rights in the states and territories named. These states and territories comprise the western third of the United States--a vast empire in extent, but still sparsely settled. From a line east of the Rocky Mountains almost to the Pacific Ocean, and from the Canadian border to the original thirteen states--the lands capable of redemption, in the main, constituted a desert, impossible of agricultural use without artificial irrigation. "In the beginning, the task of reclaiming this area was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excavated canals, constructed ditches, plowed and cultivated the soil, and transformed dry and desolate lands into green fields and leafy orchards. In the success of that effort, the general government itself was greatly concerned--not only because, as owner, it was charged through Congress with the duty of disposing of the lands, but because the settlement and development of the country in which the lands lay was highly desirable." So, Congress sanctioned the controlling exercise of state sovereignty over water rights on the public lands, such sovereignty being implemented by local rules, customs and court decisions. The base of such sovereignty stems not only from such Congressional sanction. It lies also on the constitutional principle of "equal footing" of the states upon their admission into the Union. When the western states were admitted into the Union, they were admitted on an "equal footing" with the first thirteen states. Such admission brought with it the inherent power to exert authority over their waters and the underlying beds. Oregon v. Corvallis Land and Gravel Co., 429 U.S. 363 (1977) and Montana v. United States, 450 U.S. 544 (1981). In United States v. New Mexico, 438 U.S. 696 (1978) the Court referred to the powers which the states had acquired over their waters as a result of congressional action "and admission into the Union." In California v. United States, 438 U.S. 645 (1978), the Court again recognized that in the early Acts of 1866 and 1870 the Congress had ACKNOWLEDGED the already existing water rights: "...the doctrine of prior appropriation, linked to beneficial use of the water, arose through the local customs, laws, and judicial decisions. Even in this early stage of the development of Western water law, before many of the Western States had been admitted to the Union, Congress deferred to the growing local law. Thus, in Broder v. Water Co., 101 U.S. 274 (1879), the Court observed that local appropriation rights were 'rights' which the government had, by its conduct recognized and encouraged and was bound to protect."" Moreover, the Court pointed out that the states have total authority over their internal waters except where federal navigable waters are involved or "reserved rights" are involved. THE FEDERAL RESERVED RIGHTS DOCTINE The "reserved rights" doctrine emerged in the case of United States v. Rio Grande Dam and Irrigation Co., 174 U.S. 690 (1899). In that case the federal government sued to stop and |