5
Water Laws and Institutions

INTRODUCTION

In addition to impoundments, dams, diversion structures, and numerous environmental factors, the migratory and life cycle patterns of Columbia River salmon are affected by a sophisticated legal, institutional, and decision-making framework. This framework reflects the jurisdictional complexity of the Columbia River basin and a patchwork of treaties, legislative enactments, executive directives, and court rulings. The Columbia River is one of North America’s most jurisdictionally complex rivers. The river’s basin extends into two countries, seven states, and hundreds of other governmental subdivisions. The basin is home to 13 Indian tribes, and eight federal agencies have water-related resource responsibilities in the basin (Blumm and Swift, 1997). Finally, salmon that are reared and that spawn in the basin spend a substantial portion of their lives traversing the international waters of the Pacific Ocean.

This chapter discusses some of the laws and institutions that govern water resources management decisions in the Columbia River basin. It is not meant to comprehensively review and interpret all laws and policies that guide river management but rather is designed to illustrate the many sources of risk that affect decisions in permitting additional water uses in the stretch of the Columbia River that flows within the State of Washington downstream from the Canada-U.S. border. This is consistent with this report’s emphasis on the implications of water withdrawals from the mainstem Columbia River in the State of Washington (the “middle reach” of the Columbia). The key themes of this chapter are the prospects of additional diversions upstream of the Columbia middle reach in Washington and the challenges that additional withdrawals will pose for the existing legal and institutional framework in the state and across the river basin.



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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival 5 Water Laws and Institutions INTRODUCTION In addition to impoundments, dams, diversion structures, and numerous environmental factors, the migratory and life cycle patterns of Columbia River salmon are affected by a sophisticated legal, institutional, and decision-making framework. This framework reflects the jurisdictional complexity of the Columbia River basin and a patchwork of treaties, legislative enactments, executive directives, and court rulings. The Columbia River is one of North America’s most jurisdictionally complex rivers. The river’s basin extends into two countries, seven states, and hundreds of other governmental subdivisions. The basin is home to 13 Indian tribes, and eight federal agencies have water-related resource responsibilities in the basin (Blumm and Swift, 1997). Finally, salmon that are reared and that spawn in the basin spend a substantial portion of their lives traversing the international waters of the Pacific Ocean. This chapter discusses some of the laws and institutions that govern water resources management decisions in the Columbia River basin. It is not meant to comprehensively review and interpret all laws and policies that guide river management but rather is designed to illustrate the many sources of risk that affect decisions in permitting additional water uses in the stretch of the Columbia River that flows within the State of Washington downstream from the Canada-U.S. border. This is consistent with this report’s emphasis on the implications of water withdrawals from the mainstem Columbia River in the State of Washington (the “middle reach” of the Columbia). The key themes of this chapter are the prospects of additional diversions upstream of the Columbia middle reach in Washington and the challenges that additional withdrawals will pose for the existing legal and institutional framework in the state and across the river basin.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival INTERNATIONAL OBLIGATIONS Pacific Salmon Treaty The Pacific Salmon Treaty (16 U.S.C. §§ 3631-3644, March 15, 1985) was concluded in 1984 and ratified by Canada and the United States in 1985. The treaty grants each country four commissioners. The U.S. delegation is composed of one commissioner from Alaska, one commissioner representing the states of Oregon and Washington, one commissioner representing the 24 tribes, and one nonvoting federal commissioner. Representatives from these governments also serve on several subsidiary panels. The treaty’s goal is “coordinated management of Pacific salmon throughout their range to ensure sustainable fisheries and maximize long-term benefits to the parties” (Waldeck and Buck, 1999). Under the 1999 agreement, the parties agree to an “abundance-based,” or supply-side, approach to management and harvest. The 1999 agreement emphasizes the importance of habitat in achieving treaty goals. The parties pledge “[t]o use their best efforts, consistent with applicable law, to: (a) protect and restore habitat so as to promote safe passage of adult and juvenile salmon and achieve high levels of natural production, (b) maintain and, as needed, improve safe passage of salmon to and from their natal streams, and (c) maintain adequate water quality and quantity.”1 Significance for the Columbia River middle reach: The Pacific Salmon Treaty, with its focus on salmon harvest limits, does not impose any direct regulation on water management in the river’s middle reach. However, through its ratification of the treaty, the U.S. federal government defines a foreign policy objective of sustaining the salmon fishery and protecting and improving salmon habitat in and passage through inland waters. Increased consumptive diversions in the Columbia River’s middle reach, with possible habitat modifications, might produce results contrary to these foreign policy goals. 1   Att. E, Habitat and Restoration, Annex 4 to Treaty Between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon (http://www.psc.org/treaty).

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival Columbia River Treaty The Columbia River Treaty2 was signed in 1961 by representatives of Canada and the United States and was ratified by the two governments by 1964. The treaty provided for the construction of four upper Columbia River basin storage dams: Duncan (1967), Keenlyside (1968), and Mica (1973), all in Canada, and Libby in Montana (1973). These dams provided flood control and increased hydroelectric power generating potential in both countries. The 60-year treaty coordinates binational flood control and electrical energy production in the Columbia River basin. Pursuant to the treaty, Canada stores 15,500,000 acre-feet of water in upstream storage reservoirs. In return, Canada received one-half of the additional power generated at downstream U.S. power plants by this 15,500,000 acre-feet of water. As each Canadian dam was completed, hydropower benefits that were generated downstream (and owned by the province of British Columbia) were sold to a group of U.S. utilities for a 30-year period. The first 30-year contracts began to expire in 1998. British Columbia is now receiving the sales revenues of those downstream benefits for the remaining 30 years of the treaty. For 2000 to 2001, British Columbia received $632 million as its share of hydropower revenues. Some of this money is assigned to a Canadian Columbia Basin Trust. The treaty provides for an “entity” from each country. The U.S. entity refers to the administrator of the Bonneville Power Administration and the division engineer of the Corps of Engineers North Pacific Division, who together implement the operating arrangements necessary to enforce the Columbia River Treaty. For Canada, under a separate British Columbia-Canada agreement, British Columbia Hydro is designated as the Canadian entity responsible for executing Canadian obligations under the treaty, including construction of the three Canadian dams. The treaty has several important water rights features. Canada has certain rights to divert water from the Kootenay River into the headwaters of the Columbia. Between the 20th and 60th years of the treaty, this may be as much as 1,500,000 acre-feet 2   Treaty with Canada Relating to Cooperative Development of the Water Resources of the Columbia River Basin, 15 U.S.T. & O.I.A., vol. 2, T.A.A.S. No. 5638. See also Johnson, The Canada-United States Controversy Over the Columbia River, 41 Wash. L. Rev. 676 (1966).

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival per year. For 40 years after the treaty expires, Canada can continue to divert unspecified amounts of water from the Kootenay River into the Columbia, so long as Kootenay River flows at the border are 2,500 cubic feet per second or the natural flow. The treaty is not a general apportionment of Columbia River waters. Canada pledges not to divert water in a way that alters the flow of water crossing the boundary, but an exception is made for consumptive uses. This restraint is designed to prevent trans-basin diversions, such as into the Fraser River (Canada’s controversial proposed project that led to the 1961 treaty). Significance for the Columbia River middle reach: So long as the level of hydropower production under the treaty is maintained, there should be no significant changes to water availability in the Columbia River’s middle reach. Without U.S. consent, Canadian transfers out of the river’s basin are prohibited. The water transfer between the Kootenay River (which ultimately flows into the Columbia) into the headwaters of the Columbia generally has limited hydrological implications for the Columbia River middle reach. The treaty is not an apportionment of the river between the two countries, however, and other international law principles, such as the Boundary Waters Treaty, must be considered. Boundary Waters Treaty The principal water management and sharing mechanism between Canada and the United States is the Boundary Waters Treaty.3 Ratified in 1909, it created the bilateral International Joint Commission (IJC) to address disputes. Several provisions of the treaty address the apportionment of boundary waters between Canada and the U.S. For example, under Article I, each country is entitled to “exclusive jurisdiction and control over the waters” on its side of the border. Several other provisions dampen this exclusive jurisdiction rule. Under Article II, a party injured by an upstream diversion in the other country has the same legal rights as a resident of the upstream nation. Under Article VIII, each nation has “equal and similar rights in the use” of 3   Treaty Relating to Boundary Waters and Boundary Questions, 36 Stat. 3488 (1909).

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival boundary waters. These somewhat contradictory provisions may result in adoption of an equitable apportionment or an equal division of boundary waters (Tarlock, 2000). There is a possibility that additional Columbia River water could be developed by Canada, and it is unclear what the legal implications would be for water uses in the river’s middle reach. In the case of increased Canadian diversions, a downstream water user in the State of Washington would have the same rights to contest the diversion as a Canadian resident; but application of the equitable apportionment principle usually means (at least in U.S. jurisprudence) that actual water uses within a state must not exceed that state’s equitable share of the interjurisdictional water source. As a practical matter, injury to Columbia River middle reach users as the result of increased Canadian diversions would be processed through time-consuming IJC procedures. The U.S. State Department controls how such cases are presented. Significance for the Columbia River middle reach: Current population growth rates in British Columbia suggest that increased Columbia diversions are likely, which will reduce downstream flows. Additionally, Canada likely has an unquantified but, for purposes of prior appropriation in Washington, a senior claim based on its equitable interest in the river. Canadian development will thus result in incrementally less water in the river. Additional U.S. water diversions in the river’s middle reach may remain subject to additional Canadian development, the latter of which would be entitled to priority. This does not consider any water-related claims of indigenous people north of the 49th parallel. INTERSTATE COMPACTS Attempted Columbia River Basin Compact From 1950 to 1968, the states of Montana, Idaho, Oregon, and Washington attempted the negotiation of a Columbia River Basin Compact (Nevada, Utah, and Wyoming were minor participants). Although much of the discussion concerned upper-and lower-basin allocations of water, the debate really focused on the rivalry between public and private hydropower genera-

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival tion. The movement for public power in the Northwest had resulted in a proposed Columbia Valley Authority for the region in the late 1940s, but private power interests held a political advantage during the Eisenhower administration. Upper-basin states such as Montana, with a history of private power development, supported a compact as a means of promoting private power interests. Although a compact was signed by the compact commissioners and approved by Congress, it ultimately failed when the Oregon and Washington legislatures failed to ratify the document. The central compact feature was a trade of upper-basin storage for hydropower. The upper-basin states would have allowed the construction of larger reservoirs in exchange for a share of future hydropower production and a guarantee that much of their future consumptive water needs would prevail over lower-basin instream uses. Columbia River Compact Although the quest to establish a basinwide water quantification compact was unsuccessful, a compact was reached concerning commercial and recreational fisheries. The Columbia River Compact provides authority to adopt seasons and rules for Columbia River commercial fisheries. Compact administration is by the Oregon and Washington agency directors, or their delegates, acting on behalf of the Oregon Fish and Wildlife Commission and the Washington Fish and Wildlife Commission. The basic text of the compact is as follows: All laws and regulations now existing, or which may be necessary for regulating, protecting or preserving fish in the waters of the Columbia River, over which the States of Oregon and Washington have concurrent jurisdiction, or any other waters within either of said states, which would affect the concurrent jurisdiction, shall be made, changed, altered and amended in whole or in part, only with the mutual consent and approbation of both states. (Oregon Rev. Stat. § 507.010). When addressing commercial seasons for salmon, steelhead, and sturgeon, the compact considers the effect of the commercial fishery on escapement, treaty rights, and sport fisheries, as well

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival as the impact on species listed under the Endangered Species Act. Although the compact does not provide authority to adopt sport fishing seasons or rules, it does address the allocation of limited resources among users. Significance for the Columbia River middle reach: The compact is designed to regulate commercial fishing, but the language concerning laws or regulations “necessary for regulating, protecting or preserving fish” has the judicially untested potential of requiring greater collaboration between Washington and Oregon on anadromous fish issues. Water rights permitting decisions, unless they require a new statute or rule, do not appear to be affected by this treaty. Northwest Power Act and the Northwest Power and Conservation Council Throughout the twentieth century, growth and demand for electric power, irrigated farmland, and flood control in the Pacific Northwest were met by increasingly large water storage structures. Until the 1970s, power and other services provided by the system were generally viewed as beneficial and essential to the region’s growth. By then, however, the benefits of the system were increasingly challenged, as environmental, economic, and social costs of construction were raising questions and doubt. In 1980, Congress passed the Pacific Northwest Electric Power Planning and Conservation Act, which authorized the states of Idaho, Montana, Oregon, and Washington to create the Northwest Power Planning Council. Renamed the Northwest Power and Conservation Council (NPCC) in 2003, the council consists of eight board members, two appointed by the governor of each state. The act established two objectives for the council: (1) to forecast power demands in the region, and (2) to plan for mitigation associated with the FCRPS. The act also directed the council to pay particular attention to information provided by Native American tribes. The council is responsible for mitigating the impacts of hydroelectric power dams and their operations on all fish and wildlife in the Columbia River basin, including endangered species, through a program of enhancement and protection. The council is intended to be a broker among many con-

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival tending interests including agencies, tribes, electric utilities, and environmental and business interests. The fish and wildlife program of the council directs the expenditure of hundreds of millions of dollars per year of federal Bonneville Power Administration revenues intended to mitigate damages to fisheries. Among the key features of today’s NPCC is its authority to guide the actions of federal agencies. The Bonneville Power Administration, for example, is required to ensure that its actions are consistent with NPCC plans and initiatives, and other federal agencies are required to consider the council’s programs at each stage of the decision-making process. Flows of information for decision making within the council are complex, as they include large numbers of committees and advisory bodies. The council seeks input from research projects, agency initiatives, and networking workshops. Information is provided from a variety of stakeholder and community sources through public hearings, outreach, and public advisory groups. In 2000 the Northwest Power Planning Council established a geographically based plan for implementation. The program is to be implemented through subbasin plans developed locally in more than 50 tributary subbasins of the Columbia River and amended into the council’s program. The efficacy of this grass-roots implementation strategy remains to be seen. The complex organizational arrangements engaging large numbers of professional and public advisors serve to spread the risks of failure over large numbers of participants as well as co-opt potential critics. In some sense, issues are “domesticated rather than addressed, and hard problems are removed from the day to day decision space” (Rayner et al., 2000). Although problems may not be fully resolved, such strategies allow for additional time and resources in which to search for alternative solutions and in which public tastes and values may undergo changes. INTERSTATE APPORTIONMENT Three traditional methods have been used to resolve interstate water disputes. One approach for addressing regional intergovernmental water disputes is the interstate compact. Compacts are specifically authorized by the U.S. Constitution and were first used for resolving boundary conflicts. Compacts re-

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival quire congressional authorization, either before or after the agreement is reached; and, once a compact has been approved by Congress, it has the statute of federal law under what is known as the Law of the Union doctrine. The first water quantification compact in the United States, allocating water between the upper and lower basins of the Colorado River, was negotiated and ratified in the 1920s. Since congressional approval of this initial compact, over 20 other water compacts have been negotiated throughout the United States. Since the 1980s, several states and tribes have negotiated congressionally approved compacts or other agreements determining tribal reserved water rights. A second method for addressing intergovernmental natural resource disputes is federal legislation. In interstate conflicts over water, this method, known as a congressional apportionment, has rarely been used: once to allocate water among Colorado River basin states and, implicitly, in water quality disputes in the Great Lakes. Although federal legislation could provide a comprehensive water allocation agreement for the Columbia River basin, members of Congress are rarely able to reach agreement among themselves about divisive regional issues. Many of them also believe these disputes are better left to local resolution. A third traditional approach to addressing interstate water disputes involves litigation. For water-related disputes among states, the Constitution provides that the U.S. Supreme Court has original and exclusive jurisdiction to hear these cases. If a dispute involves the interpretation or enforcement of an existing interstate compact, the Supreme Court usually will look to that document for the principles necessary to resolve the matter. If no compact exists or an existing compact does not address the dispute, the Supreme Court may apply a set of federal common law rules to reach an equitable apportionment of the water resources of the water body. Because these original jurisdiction cases require a factual record, they are usually referred first to a court-appointed special master who holds hearings and submits a proposed resolution of the case to the Supreme Court for its review. The utility of using these three traditional methods to resolve complex water quality disputes or regional endangered species problems generally has not been tested. One exception is the Delaware River Basin Compact, approved in 1961 by Delaware,

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival New Jersey, New York, Pennsylvania, and the United States. This state-federal compact is governed by a commission of the governors from the four states and a federal representative appointed by the president. The compact’s most distinctive feature is its requirement that the commission is charged to develop and implement a comprehensive basin plan. The compact also gives the commission licensing authority by providing that “no project having a substantial effect on the water resources of the basin shall hereafter be undertaken unless it shall have been first submitted to and approved by the Commission.” The commission must approve the proposed project if it “would not substantially impair or conflict with the comprehensive plan.” The Delaware River Basin Compact is similar to the 1980 Pacific Northwest Electric Power Planning and Conservation Act in that it also created a four-state commission, which also addressed multiple resources and required the development of a regional energy plan (which is presumptively binding on federal agencies). Another federal-state arrangement for coordinating multiple jurisdictions in a U.S. interstate river basin is in the Susquehanna River basin (http://www.srbc.net/, accessed February 17, 2004). More recently, governments sharing regional water bodies have used less formal, and more flexible arrangements to address interjurisdictional water issues. These include the Enlibra conflict resolution principles endorsed by the Western Governors Association, statements of guiding management principles such as the Great Lakes Charter, multifaceted state-federal agreements (e.g., California’s CalFed Bay-Delta program), and drought or water banks such as those used in Idaho and the lower Colorado River. All of these arrangements may be useful in increasing the flexibility of traditional water management regimes (e.g., the doctrine of prior appropriation) across the Columbia River basin and may be helpful in addressing existing and emerging water allocation issues. NATIVE AMERICAN WATER AND FISHERIES RIGHTS Legal Basis Indian claims to water and fish are usually based on the federal organic document that established a reservation of land for

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival the tribe: a treaty, statute, or presidential executive order. These documents sometimes make explicit statements concerning these resources. They might indicate, for instance, that the tribe has reserved to itself an existing fishery right. These documents are often silent about tribal resources, but the courts have read an “implied” reservation into these agreements or documents, recognizing that neither the tribe nor Congress would have intended a reservation of land without water. Finally, tribes may assert aboriginal rights independent of any document. These claims are based on extended exclusive occupancy of land before forceful removal (Cohen and Strickland, 1982). The Pacific Northwest has produced many judicial opinions that have been hallmarks in the development of Indian law as it pertains to resource management. These cases often involved (and still do) the intersection of fisheries and water resource issues. The foundational legal case in this realm is United States v. Winans (198 U.S. 371, 1905), as it serves as the common spring for the law of Indian fisheries and the reserved water rights doctrine (Box 5-1 lists the Columbia River basin tribes). United States v. Winans (1905) This U.S. Supreme Court decision announced reserved right principles (that would be further developed in the Winters case in 1908) that held that the tribes’ rights of taking fish at all usual and accustomed places in common with the citizens of the territory of Washington, and the right of erecting temporary buildings for curing them, were reserved to the Yakama Nation in the treaty of 1859. The court ruled that this was not a grant of right but a reservation of rights already possessed and not granted away. The rights so reserved imposed a servitude on the entire land relinquished to the United States under the treaty and which, as was intended to be, was continuing against the United States and its grantees as well as against the state and its grantees. United States v. Winters (1908) In the 1908 case of United States v. Winters [207 U.S. 564

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival state law, the Department of Ecology cannot issue a water right unless four conditions are met: Water is available, The intended use is beneficial, The right will not impair existing water rights, and The public interest will not be harmed. The importance of the public interest criteria is reinforced by Washington State statute [Washington Code of Regulations 90.54.020(3)(a)]: Perennial rivers and streams of the state shall be retained with base flows necessary to provide for preservation of wildlife, fish, scenic, aesthetic, and other environmental values, and navigation values…. Withdrawals of water which will conflict therewith shall be authorized in only those citations where it is clear that overriding considerations of public interest will be served. The test for uses deemed in the public interest apparently considers the following: Consistency with the Department of Ecology, other state and federal natural resources management plans, and local land use and growth management plans. Consistency with applicable coordinated water system or utility plans; Effects on navigation, water quality, public health, and safety; The extent to which the proposal advances water conservation and efficient water use. Maximum net benefits to the state and region, including opportunity costs of foregone uses; The merits of the proposed allocation in comparison with alternative sources and methods of water development (including costs external to the applicant); The extent to which the use of water creates new burdens on the public agency for monitoring, regulation, oversight, and adjudication. This public interest provision has been interpreted by the Washington Pollution Control Hearings Board, in cumulative effect situations, as follows:

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival When chronic water shortages have resulted in three water rights adjudications in a basin and reduced flows are depressing fish populations, even very minor irrigation applications may be validly denied. Though the effect of one small diversion may not be noticeable in isolation, the allowance of many such diversions would have a substantial impact. The potential for cumulative impacts may sustain a denial on public interest grounds. [(Byers v. DOE, PCHB No. 89-168 (1990); Holubat v. DOE, PCHB No. 90-36 (1990)]. Significance for the Columbia River middle reach: This interpretation of the public interest criteria is relevant to scenarios that posit additional diversions from the mainstem over the next 20 years. The rules emphasize the importance of cumulative effects and suggest that any individual diversion must be considered in the context of other likely calls on the river and environmental needs and changes. Once the permitting process is reopened, it may be expected that additional applications will be made from other sources in Washington. Also, if other upstream states anticipate the creation of downstream rights, this situation may provoke the filing of water rights applications in those states. Instream Flow Protection Program Washington’s instream flow program originated with legislation passed in 1969.11 Pursuant to this legislation, administrative rules were adopted by the Department of Ecology in 1980, and minimum instream flow values were established for the mainstem Columbia River upstream of Bonneville Dam.12 The rules established minimum instantaneous flow requirements at five locations on the mainstem for 17 different time periods during the year. The rules also established minimum average weekly flows at five locations on the river for the same time periods.13 In low water flow years the director of the Department of Ecology can reduce the minimum instantaneous and/or average weekly flows 11   See WASH. REV. CODE §§ 90.22.010, -020 (2004). 12   See WASH. ADM. CODE §§ 173-563-010 et seq. (2003). 13   Id. § 173-563-040.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival by up to 25 percent. However, outflow from Priest Rapids Dam can never be less than 36,000 cubic feet per second. Also, the Columbia River must provide at least 39,400,000 acre-feet per year at The Dalles.14 These instream flow rights have been recognized as appropriations with priority dates as of the effective dates of their establishment (1980 for the Columbia mainstem).15 As such the instream flow rights are subordinate to “existing water rights, riparian, appropriative, or otherwise, existing on the effective date of this chapter, including existing rights relating to the operation of any navigation, hydroelectric, or water storage reservoir, or related facilities.”16 The instream flow rights are also subordinate to any water withdrawal at the request of the U.S. Bureau of Reclamation for the complete development of the Columbia Basin Project.17 Approximately one-half of the Columbia Basin Project’s authorized lands are not yet irrigated, and any water diverted for these new lands at the project would also be senior to mainstem, instream flow rights. The instream flow rights are also subordinate to any federal agency or tribal reserved water right established before 1980. Thus, this collection of various rights (existing pre-1980 rights, pre-1980 reserved water rights, and additional water withdrawn for the Columbia Basin Project) are essentially senior to the instream flow rights. They are also referred to as “uninterruptible water rights.” Such rights include approximately 4,530,000 acre-feet of water rights based on state law. The instream flow rules authorized the Department of Ecology to approve additional mainstem diversions, but they would be junior to the instream flow rights and subject to additional conditions imposed by the administrative rules.18 For the first 14   Id. § 173-563-050. 15   Hubbard v. Department of Ecology, 936 P.2d 27 (App. 1997). 16   WASH. ADM. CODE § 173-563-020(3). 17   Shortly after passage of the National Reclamation Act in 1902, the Washington legislature authorized the United States to ask the state for withdrawal of water necessary for planned reclamation projects. This withdrawal was initially effective for one year but could be extended repeatedly if construction was under way. See Id. § 90.40.030. The legislature later allowed water to remain withdrawn for the ultimate development of the Columbia Basin Project, so long as the project was not abandoned. Id. § 90.40.100. 18   The instream flow rules apply to public surface water and “any ground water the withdrawal of which is determined by the department of ecology to have a significant and direct impact on the surface waters of the main stem of the Columbia River” WASH. ADM. CODE § 173-563-020(1). Thus, certain post-1980 groundwater diversions are junior to, and can be administered to benefit, the instream flow rights.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival 4,500 cubic feet per second of water rights issued subsequent to the instream flow rights, these later rights are subject to priority administration if April to September flows at The Dalles are forecast to be 60,000,000 acre-feet or less and it is further predicted that minimum average weekly flows will not be met at one or more locations. Any water rights beyond the initial 4,500 cubic feet per second flow are subject to priority administration when the March 1 forecast of April to September runoff at The Dalles, Oregon (as published by the National Weather Service in Water Supply Outlook for the Western United States) is equal to or greater than 88,000,000 acre-feet and it is likely that minimum average weekly flows will not be met.19 These post-1980 water rights, which are junior under some circumstances to the instream flows, are called “interruptible rights.” “Interruptible rights” totaling 172,358 acre-feet have been issued (Gerry O’Keefe, Washington State Department of Ecology, personal communication, 2004). In the spring of 1992 the Department of Ecology adopted emergency rules that withdrew unappropriated waters of the mainstems of the Columbia and Snake rivers from further appropriations. This moratorium was extended in 1994 in an effort to rebuild the anadromous fish population and to respond to Endangered Species Act listings. In the 1994 rule the moratorium was scheduled to expire in 1999 or when the Department of Ecology established an instream resources management program. However, the department has postponed new allocations pending the availability of additional information about the status of fish and expert opinion (including this report). In 1997 the Washington State legislature passed a law stating that the Department of Ecology could not use these minimum values to make decisions on future, new applications. However, approximately 300 water rights already issued out of the mainstem were subject to minimum flow requirements and could be interrupted as they were in the 2001 season. Because of the moratorium, it is difficult to estimate how large the demand for new permits on the Columbia River mainstem would become in Washington if the permit process was fully opened. As part of Washington’s Columbia River Initiative, there have been discussions regarding the permitting of uninterruptible 19   Id. § 173-563-056.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival water rights. The Department of Ecology is apparently considering the exchange of traditional, priority-administered appropriative water rights for “uninterruptible” water rights that would be exempt from normal rules of priority administration. Water law scholars generally agree that rigorous priority administration of water rights is rarely practiced in western states. In theory, and in some highly administered basins such as those in Colorado, priority-in-time administration is a hallmark of the prior appropriation doctrine. Holders of senior rights are entitled to the full amount of their appropriation before junior appropriators can divert water (so long as the “call” on the junior right would not be a futile effort, because of conveyance losses or other reasons, in actually delivering water to the senior user). Uninterruptible water rights would appear to jump to the front of the line in terms of state-administered water rights priorities. The major advantage of uninterruptible rights is that they provide a greater certainty of water supply and encourage more efficient use and application of water. Apparently, these more efficient rights would be satisfied before legally senior water rights. The Department of Ecology is in a more informed position to assess the constitutionality of such as approach, but some senior water rights holders would likely claim a taking of the most valuable aspect of their water right—its priority. Also, some legal experts argue that conserved water is available to satisfy the unserved needs of junior users or is available for new appropriations. If the goal is to enhance instream flows, state law must ensure that conserved water is dedicated to the stream. Also, it is unclear how uninterruptible rights could be immunized from other uses and demands on the river unless base flows for salmon are diminished. Federal and state water quality and endangered species requirements may trump the exercise of uninterruptible rights. The State of Washington is not likely to be able to control upstream water development in Canada, on Indian reservations, or in other U.S. states. If upstream uses reduce instream flows in the Columbia River’s middle reach, the guaranteed exercise of uninterruptible rights compounds the situation and potentially compromises the water necessary for healthy aquatic habitat and fisheries. Significance for the Columbia River middle reach: One apparent legal basis for this initiative is a rules provision allowing

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival the director of the Department of Ecology to allow “[f]uture authorizations for the use of water which would conflict with the provisions of this chapter [Columbia River main stem instream resources] … when it is clear that overriding considerations of the public interest will be served.”20 These new uninterruptible water rights would have seniority over the 1980 instream flow rights. They could not be curtailed to maintain minimum instantaneous flow or average weekly flow requirements of the instream flow rules. These new rights would be subordinate to other pre-1980 water rights. It is unclear how these new uninterruptible rights would be administered in relation to other mainstem rights established between 1980 and 2004. In exchange for this jump in priority, the Department of Ecology proposes that the new uninterruptible rights be issued only on the condition that the water user employ state-of-the art water conservation technology. The Department of Ecology previously adopted a rule requiring that the authorized quantity of any new Columbia River mainstem water rights “accurately reflect the perfected usage consistent with up-to-date water conservation practices and water delivery system efficiencies.”21 The proposal would potentially increase the amount of water that could be diverted ahead of the instream flow protections. These rights would be in addition to the approximately 4,700,000 acre-feet of rights to water (apparently not including tribal reserved rights) that now may be exercised before the state’s minimum flow requirements may be activated. Oregon Oregon has a more rigorous permitting procedure than most western states and also places more adjudicatory power in the state’s Water Resources Department. Permits for new uses are submitted to the department. The department makes a preliminary review of the adequacy of the application and a proposed determination as to whether the application will be granted. If the proposed determination is protested, a contested case hearing is held before the department. Thereafter, a final agency deci- 20   Id. § 173-563-080. 21   Id. § 173-563-060.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival sion is rendered. Oregon is conducting an adjudication of all pre-1909 surface water rights and all pre-1955 groundwater rights. The Oregon Water Resources Department reviews claims, holds administrative hearings, and files its proposed determinations with the state circuit court. The court reviews the findings, holds hearings on protests, and issues a decree officially upholding or modifying the department’s conclusions. The state has completed 94 adjudications representing approximately 70 percent of the state. In 1975 the department commenced an adjudication of claims to surface water rights in the Klamath River basin. Significance for the Columbia River middle reach: Because Oregon initiated its permitting program in 1909 and vested an administrative agency with the major role in adjudicating pre-1909 water rights, its inventory of water rights and the associated legal entitlement is better than most other western states. Even the reserved rights of the Warm Springs Reservation have been determined (see earlier discussion); however, the method of calculation (assigning to the tribes water in excess of 1996 non-Indian uses) leaves a large margin for future tribal development. Thus, while Oregon is in a rather good position in calculating existing rights and uses that affect the Columbia River, future development remains uncertain. Idaho In Idaho the Department of Water Resources (DWR) approves new permits and changes in existing water rights.22 Since 1963, permits have been required for groundwater diversions. In 1971 this requirement was extended to surface water appropriations. Once water under a permit has been developed, the applicant submits proof of beneficial use and the Idaho DWR examines the use of water under the permit. If such use is deemed satisfactory, the DWR issues a license for the water right. The issuance of a water right license by the DWR is prima facie evidence of the existence of such a right and is binding on the state as to the right of such licensee to use the described amount of 22   These provisions are set forth in Idaho Code tit. 42.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival water. Once established pursuant to state permit and license procedures, a water right is real property under Idaho law and may be acquired by lease or purchase. Although instream flow may constitute a beneficial use in Idaho, only the state Water Resources Board may apply for and hold such a right. To address water rights not represented by licenses and permits, as well as federal reserved water rights, the Snake River Basin Adjudication (SRBA) is pending before state court. The SRBA encompasses most of the surface water in the state except for the Bear River basin and the state’s panhandle region. Initiated in 1987, the SRBA has proceeded faster than most state adjudications but remains many years away from completion due in part to the large number of claims involved. Significance for the Columbia River middle reach: Pending completion of the Snake River adjudication, existing water use entitlements are difficult to estimate. Fortunately, the reserved rights of the Fort Hall Reservation have been settled (see earlier discussion), and the potentially large claims of the Nez Perce are likely to be predominantly instream flow rights. Snake River flows are being affected by upper-basin groundwater uses; and because groundwater rights are not being adjudicated in the Snake River adjudication, the extent and effect of groundwater use will be difficult to measure and control. Idaho is a rapidly growing state with increasing amounts of economic activity, so it is expected that its future water needs will likewise increase. Montana Montana was one of the last western states to require permitting of all but the smallest water uses. Prior to 1973, water uses in Montana could be established under “use rights” (actual diversions of water) or optional state filing requirements. With passage of the Water Use Act in 1973, Montana adopted one of the most comprehensive permitting programs in the West. Except for small uses, permits issued by the state Department of Natural Resources and Conservation are required for surface water diversions and, unlike many other western states, for groundwater withdrawals. Although Montana is developing sound water rights records for post-1973 appropriations, pre-1973 water

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival rights are a jumbled collection of water rights established under a hundred years of changing state legal requirements, compounded by the unquantified reserved rights appurtenant to many Indian reservations and federal land holdings. To rectify this problem, the state commenced (first in 1973 and then in 1979 in an expanded form), a statewide general stream adjudication of most pre-1973 surface and groundwater uses, including claims for federal reserved water rights. Although claims have been filed in all basins of the state, the adjudication pending before the Montana Water Court is proceeding slowly and relatively few final decrees have been entered for tributaries of the Columbia River system. Under Montana law, adjudication of reserved water rights is stayed while the particular Indian reservation or federal agency engages in negotiations with the Montana Reserved Water Rights Compact Commission. Although several pioneering compacts have been reached throughout the state, negotiations with the Salish and Kootenai tribes of the Flathead Indian Reservation, one of the largest claimants on the Columbia River system, remain stalled. Those tribes assert a variety of instream and consumptive uses in a rapidly growing valley area in northwestern Montana. Significance for the Columbia River middle reach: Both Montana’s Clark Fork River and Flathead River systems provide large flows of water to the Columbia River mainstem. These tributaries are important water courses in the most rapidly growing region of Montana, the Stevensville-Missoula-Kalispell corridor. In projecting future water uses in upstream states, the Washington State Department of Ecology has provided no assumptions for Montana’s future needs. Indeed, because of the incomplete general stream adjudication and inchoate nature of the claims associated with the Flathead Indian Reservation, water uses that might occur under existing water rights based on federal and state law and under future permits are difficult to predict. This uncertainty adds to the risk of additional permitting in the Columbia River middle reach.

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival SUMMARY Applications for water withdrawal permits from the mainstem Columbia River, and from groundwater within 1 mile of the river, have been pending within the State of Washington for several years. Most of these applications are for the reach of the river between Grand Coulee and John Day dams. Permitting decisions must be balanced with the state’s obligations to protect and enhance the environment, which includes salmon habitat. As this chapter has pointed out, Columbia River hydrology and salmon habitat along the river in Washington are also influenced by upstream water management activities and policies. The challenges involved in the State of Washington’s permitting decisions are magnified by the fact that many upstream areas are likely to increase future water withdrawals, including British Columbia, Indian reservations, and the states of Idaho and Montana. New water permits in Washington may be subordinate, or “junior,” to future water development in other upstream jurisdictions. As long as upstream development does not exceed Canada’s ultimate entitlement and equitable state shares of interstate water, additional water use in Montana, Idaho, Oregon, and other basin states will be senior to new permits in Washington. In most cases, tribal reserved water rights will also have priority over these new state permits. With increases in water diversions—both in upstream areas and under new permits in the middle reach of the Columbia River—water available to salmon will diminish unless other regulatory programs, such as requirements of the Endangered Species Act, are triggered. These trends suggest that water resources managers and decision makers in the Columbia River basin would be well advised to explore ways to better manage existing water supplies, create more flexible management regimes, and better manage the numerous risks and uncertainties that attend salmon and water management. Basin entities, for example, could develop reversible management actions and approaches that are actively monitored and evaluated and that aim to meet new water demands in areas such as the middle reach of the Columbia River. The next two chapters of this report examine the topics of better management of existing supplies, risks, and uncertainties. Chapter 6 reviews market-based approaches, such as water transfers, water banks, and conservation measures that are being used

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Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival in many parts of the country, and Chapter 7 discusses strategies for better managing risks and uncertainties.