Water law for a new century

In its water crisis report, prophetically entitled "Idaho at the Crossroads," Trout Unlimited - the nation's largest fishery conservation organization - is calling for changes in Idaho water law to "sustain fish and farmers."

It's going to be a daunting crusade, but Trout Unlimited now has new opportunities in light of Idaho's landmark water agreement with the Nez Perce Tribe. The new pact opens the door to changing Idaho water law in order to put more water in streams for fish.

Since the 19th century, Idaho's water law has been built on the first-in-time, first-in-right premise. That means the person holding the oldest water rights gets to use the water first before junior rights are served. The law served the interests of miners - originally - and irrigators today.

But Idaho is changing. It continues to be one of the fastest growing states in the nation. Especially in the largely arid West, water will become scarce - and conflicting demands for it will multiply. Farmers undoubtedly will have to feed that growing population. But there's a new dynamic of public expectations in a state where outdoor recreation is tied both to lifestyle and a healthy economy.

So a water law that has stood the test of time now must adapt. As that process evolves, Trout Unlimited wants to be heard.

Its approach relies more on incentives than mandates, however. Trout Unlimited would give farmers benefits in exchange for using their water rights to sustain fisheries. Doing that requires some changes in Idaho's water law:

* Although Idaho has established a minimum stream flow standard, the law is checkmated by the first-in-time, first-in-right water law. If Trout Unlimited prevails, new laws would allow cooperating farmers and groups to maintain a minimum amount of water in streams and rivers, even if all the water has been fully "appropriated."

* A rental pool formula in Lemhi Valley has allowed farmers to lease some of their water rights to put more water in streams to help endangered salmon. But state law limits it only to the Lemhi Valley. Trout Unlimited wants to expand it statewide.

* Trout Unlimited believes a market-based private water leasing program should be designed to benefit Idaho's fisheries, especially on smaller streams.

* Laws and regulations should be amended to allow willing landowners and groundwater storage projects to transfer water toward fish-friendly programs.

* Idaho should fully implement federal and state programs that give landowners incentives to use water in a way that helps fish. These programs call for water conservation, eliminating certain fish barriers and coordinating irrigation systems in order to put more water into streams.

Trout Unlimited's mission is to convince irrigators and lawmakers that these changes can be mutually beneficial to farmers and fish. Not surprisingly, few farmers and legislators rushed to support Trout Unlimited's suggested tweaking of the state water laws.

But Trout Unlimited has demonstrated wisdom and openness in working out specific plans with farmers and ranchers in the past. And it approaches this work well-aware that when it comes to the West, water law is sacred legal ground.

So however difficult this work appears, Trout Unlimited comes to it with the right credentials.

J. Robb Brady