Water Laws and Institutions
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.
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.
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).
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
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
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.
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-
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
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-
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.
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-
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,
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
Indian claims to water and fish are usually based on the federal organic document that established a reservation of land for
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
Burns Paiute Tribe (Oregon)—3,000 members; 770 acres of trust land acquired in 1935 to reestablish reservation; 11,000 acres of allotment land owned by tribal members.
Coeur d’Alene Tribe (Idaho)—1,700 members; 345,000-acre reservation; rights based on treaties as early as 1873.
Confederated Salish and Kootenai Tribes of the Flathead Reservation (Montana)–6,900 members; 1,300,000 acre reservation; assert rights based on 1855 Treaty of Hellgate.
Confederated Tribes of the Colville Reservation (Washington)—8,400 enrolled members; 1,400,000 acre reservation; rights based on 1872 Executive Order and other agreements with the U.S. government (1892, 1905).
Confederated Tribes of the Umatilla Indian Reservation (Oregon)—2,174 enrolled members; 180,441-acre reservation; rights based on 1855 treaty.
Confederated Tribes of the Warm Springs Indian Reservation (Oregon)—3,916 enrolled members; 650,000-acre reservation; rights based on 1855 treaty and federal court cases.
Kalispel Tribe of Indians (Washington)—280 enrolled members; 4,600-acre reservation; rights based on 1914 executive order.
Kootenai Tribe (Idaho)—67 members as of 1974; tribal members accepted 12.5 acres but do not consider it to be a final settlement.
Nez Perce Tribe (Idaho)—3,200 members; 770,453-acre reservation; rights based on treaties of 1855 and 1863 and federal court decisions.
Shoshone-Bannock Tribes of the Fort Hall Reservation (Idaho)—4,291 members; 544,000-acre reservation; rights based on 1867 executive order.
Shoshone-Paiute Tribes of the Duck Valley Reservation (Nevada)—1,818 members; 289,820-acre reservation; rights based on 1863 treaty, 1877 executive order, and other statutory additions to reservation.
Spokane Tribe of Indians (Washington)—100,000 acres held in trust; 57,370 additional acres held as allotments, deeded fee land, other government lands; rights based on 1880 executive order.
Yakama Nation (Washington)—9,092 members; 1,390,000 acre reservation; rights based on 1855 treaty.
(1908)], which arose on the Milk River in the State of Montana, the Supreme Court recognized that the reservation system had been established in an effort to transform tribes into agrarian societies. The court ruled that Congress reserved, by implication, sufficient water to serve the needs of the reservation with a priority extending back to the date the reservation was established. In some cases these federally reserved water rights are claimed as aboriginal, based on historic use, with a priority date of “time immemorial.” Since Indian fishing and water rights claims are senior to most non-Indian uses, there has been a slow but continuing effort to quantify these treaty, or reserved, water rights. Quantification can be by litigation, compacts or settlements, or congressional legislation. All tribes with trust status reservations within the Columbia River basin and its tributaries potentially have treaty-based or reserved water rights claims. Quantification of nonfishing claims has been based on the practicably irrigable acreage standard (see Arizona v. California, 1963). The Arizona Supreme Court, however, recently utilized a “permanent homeland standard” in the Gila River adjudication that may stimulate further discussion of appropriate quantification methods.
Indian Fisheries Cases in Washington
Under the Winans case, tribes may reserve by treaty the right to hunt or fish off-reservation. This legal principle is at the heart of lengthy litigation in state and federal courts in Washington State.
The chronicle of litigation begins in 1968 with Puyallup Tribe v. Department of Game [Puyallup I, (391 U.S. 392 (1968)], decided by the U.S. Supreme Court. The tribe had entered into a Stevens treaty4 in 1854 that stated: “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the
Territory.”5 Washington State attempted to prohibit tribal members, when fishing off-reservation, from using nets. The Supreme Court upheld the state’s qualified authority to regulate the tribe’s fishing right: “But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interests of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians” (391 U.S. at 398). In a later case, “appropriate standards” were defined to mean a reasonable and necessary conservation measure, the applicability of which to Indians “is necessary in the interests of conservation” [Antoine v. Washington, 420 U.S. 194, 207, (1975)].
Soon thereafter, the State of Washington allowed tribal members to use nets for salmon but not for steelhead. The tribe argued that this restriction resulted in assigning the entire run to non-Indian sports fishermen. When this restriction was reviewed by the U.S. Supreme Court in Puyallup II [Department of Game v. Puyallup Tribe, 414 U.S. 44 (1973), Puyallup II], the justices indicated that regulation discriminated against the tribe and violated Puyallup I. The court suggested that some accommodation between Indian and non-Indian uses had to be found; but, if necessary, a nondiscriminatory fishing ban to save steelhead could be applied to Indians. In a third round of litigation, the state allowed the Indians to net steelhead but limited their share to 45 percent of the natural run. Contemporaneously, many tribal “usual and accustomed” fishing locations were determined to be within reservation boundaries, although still on non-Indian land. The tribe challenged this state limitation as well, particularly as applied to on-reservation locations. In Puyallup Tribe, Inc. v. Department of Game (433 U.S. 165, 1977, Puyallup III), the Supreme Court upheld the state regulation and allowed it to be applied to on-reservation fishing so as to prevent the tribe from taking an unlimited amount of fish to the detriment of non-Indian fishermen.
While the Puyallup litigation was pending, the United States
filed suit in federal district court in 1970 on behalf of seven Washington-based tribes that asserted fishing rights based on the same Stephens treaty language. On February 12, 1974, Judge George Boldt ruled in United States v. Washington [384 F. Supp. 312 (W.D. Wash. 1974), aff’d, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976)] that the tribes had a right to fish at their accustomed places and to secure roughly half of the annual catch. More specifically, the district court held that the Indians were entitled to a 45 to 50 percent share of the harvestable fish that would at some point pass through recognized tribal fishing grounds in a defined area of Washington, to be calculated on a river-by-river, run-by-run basis, subject to certain adjustments. With slight modification, the U.S. Court of Appeals for the Ninth Circuit affirmed, and the U.S. Supreme Court declined review. In a later decision, Judge Boldt declined to extend federal recognition or enforce treaty rights for certain landless tribes (the Duwamish, Samish, Snoqualmie, and Steilacoom). Although the district court ordered the state fisheries department to adopt regulations protecting tribal fishing rights, a state court action resulted in the Washington Supreme Court holding that state agencies could not comply with the federal court injunction. The state court ruled that the treaty conferred on the Indians no greater right than that enjoyed by non-Indians. To rule otherwise, in the court’s view, would violate the Equal Protection Clause (Puget Sound Gillnetters Ass’n v. Moos, 565 P.2d 1151, Wash. 1977).
These various federal and state decisions were eventually all reviewed by the U.S. Supreme Court in 1979. In rejecting the ruling of the state supreme court, the court vindicated the federal district court’s approach. In Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n [443 U.S. 658 (1979)], the Supreme Court held that the treaties do not guarantee merely access to the fishing sites and an equal opportunity for Indians and non-Indians to fish, but rather secure to the Indian tribes a right to harvest a share of each run of anadromous fish that passes through tribal fishing areas. Among the more specific holdings:
A 50 percent share of the harvestable run may be established as the ceiling for the Indian fishery. This share may be reduced when fish are not needed, for instance, if a tribe’s popu-
lation has declined.
The state has the authority to set the harvestable run for each stream in a manner that protects the sustainability of each run.
All fish caught by treaty Indians count against the tribal share, whether caught on- or off-reservation.
All fish caught by non-Indians count against their share, whether or not caught in state waters.
Indians are entitled to the exclusive use of all fishing sites within reservation boundaries (Canby, 1981).
Significance for the Columbia River middle reach: The Boldt litigation, culminating in the 1979 U.S. Supreme Court decision, recognizes state authority to determine harvestable catch for both Indian and non-Indian fishermen. That authority, however, is tempered by the obligation to manage the resource in a manner that safeguards the sustainability of the resource. In practice, management of the fishery has become more of the collective responsibility of federal, state, and tribal fish managers. Still, the state must be cautious in its water permitting function not to affect the salmon and steelhead resource in such a way that no harvestable catch is available for treaty Indians or to take actions that are detrimental to the sustainability of existing runs.
Water Rights of Indian Reservations
As previously discussed, many of the Stephens treaties reserved tribal rights to fish on the reservations and at off reservation “usual and accustomed” sites in their treaties—the provision interpreted in the Puyallup and Boldt litigation. The total land represented by these reservations exceeds 7,000,000 acres (or roughly 11,000 square miles, about the size of the combined area of Massachusetts and Connecticut). Water rights for some of this tribal land have been adjudicated or settled. Other land may not have been reserved for agricultural purposes or may be of poor quality. If, however, irrigated agriculture was “feasible” on 25 percent of this land, and 4 acre-feet of irrigation water per acre per year were required, 7,000,000 acre-feet of water could be diverted from the Columbia River system for farming (“feasi-
bility” of irrigation is a technical and economic concept used in defining “practical irrigable acreage”; its calculation depends on site-specific conditions and studies and, depending on assumptions, can vary widely). The following discussion broadly examines some of the larger reservations to gauge how their claims and uses might affect water availability in the Columbia River middle reach.
Yakama Nation/Yakima Indian Reservation (Washington)
The Yakima River flows from the northwest and empties into the Columbia River at Richland, Washington. Water rights established on the Yakima River affect water availability downstream on the Columbia River mainstem. The Yakima River has been the subject of the ongoing Yakima River adjudication, originally filed by the State of Washington in 1977. The water rights of the Yakama Nation have been asserted in the adjudication, and several important decisions have been reached. In November 1990 the Yakima County Superior Court granted a partial summary judgment establishing the quantity and priority of treaty-reserved water rights for irrigation within the Yakama Reservation and for fishing purposes both within the reservation and off-reservation in the Yakama Nation’s “usual and accustomed” fishing area. The court determined that federal legislation passed in 1914 and subsequent federal legislative, executive, and judicial actions had reduced the amount of water claimed by the tribe under its treaty. Consequently, the court ruled that the tribal fishing right was limited to the instream flow necessary to maintain fish life in the river. The case was appealed to the Washington Supreme Court, which in April 1993 affirmed the lower court decision.
Significance for the Columbia River middle reach: The Yakima River adjudication is nearing conclusion. In addition to the quantification of the Yakama Nation’s water rights, major non-Indian irrigation claims have been resolved through litigation and settlement. As a result of this adjudication, the state has acquired reasonably current and accurate information regarding the use of water on this Columbia River tributary stream. The tribal fishing right, although less than claimed, remains a “time
immemorial” instream flow right that must be protected by the state in future permitting decisions.
Confederated Tribes of the Colville Reservation (Washington)
Twelve bands or tribes of indigenous people were located on land within the territory of Washington pursuant to a presidential executive order issued in April 1872. On July 2 of the same year a second presidential executive order moved the reservation and the residents to its present location on the west side of the Columbia River. Although this location originally totaled almost 3,000,000 acres, subsequent enactments reduced the acreage to the present size of 1,400,000 acres. Tribal members, however, retain hunting and fishing rights on the ceded northern half of the original reservation (Antoine v. Washington, 420 U.S. 194, 1975). Grand Coulee Dam and the lower part of Roosevelt Reservoir are located within the external boundaries of the reservation; the upper lake is within the ceded areas. Tribal membership is approximately 8,700, about half of whom live on or adjacent to the reservation.
The reservation was the location of the Colville Confederated Tribes v. Walton (1981) decision, which recognized the ability of non-Indian assignees of Indian allotments to claim a share of a tribal reserved water right. Although the Colville Tribes benefit from determinations made in the Boldt fishing litigation, any other reserved water rights claims made by the tribes have not been adjudicated or settled. The tribes have expressed their concern over sedimentation in Lake Roosevelt and the impact this has on tribal water use (Confederated Tribes of the Colville Reservation, 2000).
Significance for the Columbia River middle reach: The Colville Tribes are today focusing their economic development efforts on gaming and forestry operations, but the relatively large size of the reservation provides future agricultural opportunities. Any entitlement to reserved water rights for agricultural or other consumptive uses has not been adjudicated or settled; but if such rights are determined in the future, they would be senior to most downstream state law diversions and could diminish mainstem
Warm Spring Indian Reservation (Oregon)
Pursuant to the 1855 Treaty with the Tribes of Middle Oregon, the Confederated Tribes of the Warm Springs Indians–comprised of the Wasco, Paiute, and Warm Springs bands—ceded 10,000,000 acres of aboriginal territory to the United States. Today, the Warm Springs Nation occupies a reservation of approximately 650,000 acres in north-central Oregon and is inhabited by 3,500 to 4,000 tribal members. The Deschutes River system, tributary to the Columbia, is the principal water source in the area. In an effort to avoid litigation, the Warm Springs Nation approached the State of Oregon in the early 1980s and offered to enter negotiations to determine, quantify, and settle its reserved water rights. After many years of negotiation, the final agreement was signed and executed on November 17, 1997. The agreement was submitted to the Deschutes County Circuit Court in 1999 for incorporation into the Deschutes River Decree, originally issued in 1928. In reaching the settlement, the parties had agreed not to use the “practicably irrigable acreage” standard that has been used in other water rights settlements and litigation. Instead, after studying 70 years of flow data from the Deschutes River, the parties thought that the region supplied enough water to satisfy all current and some future uses. The parties agreed that the amount of water resources used, consumed, and reserved as of September 26, 1996, was sufficient to satisfy their present and future water needs without subjecting other water users to a call by the tribes. The state subordinated its own instream flow right on the Deschutes River to the priorities of the tribal water rights.
Significance for the Columbia River middle reach: Although a reserved water right settlement has been reached for the Warm Springs Nation’s claims on the Deschutes River, only the future non-Indian water development is constrained. The tribes are authorized to develop their water entitlement, and to the extent such development is consumptive, it will likely reduce flows in the Columbia River mainstem.
Flathead Indian Reservation (Montana)
The Confederated Salish and Kootenai tribes share the Flathead Reservation located near Flathead Lake in northwestern Montana. The tribes assert a variety of sovereignty and natural resource rights based on the 1855 Treaty of Hellgate. Land ownership arrangements on the Flathead Indian Reservation reflect a checkerboard-type pattern of Indian and non-Indian lands. The tribes and non-Indians living in the Flathead Valley have long contested the water supplied by the Flathead Indian Irrigation Project. The tribes have prevailed in many lawsuits concerning water, including a recent Montana Supreme Court decision preventing the state from issuing additional groundwater permits until a general stream adjudication for the basin is completed. This decision notwithstanding, an increasing number of unpermitted wells have been drilled. Although adjudication claims have been filed for water uses in the area, the adjudication has been stayed pending negotiations between the tribes and the Montana Reserved Water Rights Compact Commission. Those negotiations have barely commenced due in large part to heightened emotions on all sides. If negotiations are unsuccessful, many difficult and potentially volatile years of litigation are anticipated.
Significance for the Columbia River middle reach: The Flathead tribes have an ambitious economic development program, and their reservation is in one of the fastest-growing areas of Montana. Years, if not decades, will be required before existing water rights are clarified. Water use in the area will increase and is thereby likely to reduce flows to the middle and lower portions of the Columbia.
Nez Perce Tribe/Nez Perce Indian Reservation (Idaho)
The Nez Perce Indian Reservation in Idaho has the Clearwater River as its northern border. The reservation is also in the proximity of the Lochsa and Salmon rivers, as well as the Snake River itself. The tribe, and the United States on its behalf, has filed extensive claims in the Snake River basin. The claims are for sufficient instream flows to support salmon, as well as for
water for irrigation and domestic uses. Instream flow claims have been filed in 1,134 drainages and extend virtually to all the water in the Snake, Salmon, and Clearwater basins (Shelton, 1997). The legal basis for the tribe’s claim is its 1855 treaty,6 in which the tribe reserved the exclusive right to fish all streams running through or bordering the reservation and a nonexclusive right to fish in “all usual and accustomed places.”
In 1998 non-Indian water users filed a motion for summary judgment in the Snake River adjudication challenging the tribe’s off-reservation instream flow water rights claims. In 1999 the trial court conducting the adjudication granted the motion for summary judgment and dismissed the tribe’s and the U.S. instream flow claim, holding that no implied federal reserved instream flow right exists as a matter of law to support the tribe’s fishery right [(Consolidated Subcase No. 03-10022 (Snake River Basin Adjudication Dist. Ct., Idaho, Nov. 10, 1999), appeal filed, Docket No. 26042 (Idaho Nov. 29, 1999)]. The tribe subsequently filed a collateral challenge to the ruling based on an alleged conflict of interest involving the judge, but the action was dismissed as moot after the judge resigned [United States v. State, 51 P.3d 1110 (Idaho 2002)]. The Idaho Supreme Court still has not determined the merits of the instream flow case, although the briefing was completed in February 2003. In the meantime, the major parties to the Snake River adjudication have been involved in mediating the Nez Perce claim. Reportedly, settlement discussions have focused on two major areas: (1) possible reconfiguration of the dam and reservoir system on the lower Snake River and the mainstem of the Columbia and (2) preservation of fish habitat in the Salmon and Clearwater basins (Shelton, 1997). On May 7, 2003, the Snake River adjudication presiding judge informed the mediating parties that he would order an end to the mediations and advance the remaining Nez Perce claims toward trial (Idaho Statesman, 2003).
Significance for the Columbia River middle reach: The Nez Perce have a senior treaty-based claim on some of the waters of the Snake River system. To the extent they are successful in having their instream flow claims recognized in the Snake River adjudication, Snake River and Clearwater flows at the Washing-
ton-Idaho border would likely stabilize or possibly increase. This would likely enhance water availability in the middle reach of the Columbia River.
Fort Hall Settlement (Idaho)
The Shoshone and Bannock tribes share the Fort Hall Reservation in southern Idaho. The Fort Hall Indian Reservation was established by an executive order in 1867. Initially intended to be 1,800,000 acres but later reduced to approximately 544,000 acres, the reservation is located along the Snake River near Pocatello. It is owned primarily by the tribes collectively (47 percent) and by individual Indian allottees (43 percent). In 1985 the state legislature directed the Idaho Department of Water Resources to commence a general stream adjudication in the Snake River basin. The legislature also passed a resolution, at the request of the Shoshone-Bannock tribes and the Idaho executive branch, authorizing negotiations to settle the tribes’ water claims in the Snake River basin. The tribes and the state entered into a memorandum of understanding establishing a process for negotiating a settlement. The tribes obtained a special exemption from the U.S. Department of the Interior allowing them to pursue negotiations independent of the federal government. The United States and certain local water users were later included in the negotiations. In 1989 an agreement was reached that sought to protect the rights of water users established under state law. In late 1990 this agreement was ratified through congressional enactment [Fort Hall Indian Water Rights Act of 1990, P.L. 101-602, 104 Stat. 3059. See also Committee Report 101-831 to accompany H.R. No. 5308, 101st Cong., 2nd Sess. (1990)].
The settlement, involving a highly developed reach of the Snake River, sets the tribes’ entitlement to water from the Snake River basin at 581,031 acre-feet per year. The water supply is comprised of a combination of natural flow, groundwater, and federal contract storage water. This entitlement satisfies all claims to water that the tribes may have had under the Winters doctrine. Indian rights in the Fort Hall Indian Irrigation Project were converted to Winters rights with a priority of 1867, the date the reservation was established.
Significance for the Columbia River middle reach: The Fort Hall Settlement is one of the few instances in which the Winters rights of an upstream Indian reservation have been determined.
FEDERAL RIGHTS AND OBLIGATIONS
The federal government has plenary authority to regulate interstate commerce. Under the U.S. Constitution’s interstate commerce clause, Congress may enact statutes regulating interstate commerce. The dormant interstate commerce power is also available to invalidate state statutes and other actions that impermissibly burden interstate commerce. One aspect of the interstate power is federal navigation power that enables the federal government to prevent obstructions that burden riverborne commerce on navigable waterways. The federal government’s navigation authority prevents the construction of bridges or other structures that might impede navigation. It also prevents actions that deplete water so that navigation is no longer possible.
Significance for the Columbia River middle reach: Most of the mainstem Columbia River in Washington is navigable and is thus subject to the restraints imposed by the federal navigation authority. The federal government can always insist on a base flow in the river sufficient to allow actual navigation. The exercise of this authority trumps all state actions or diversions under state law that would interfere with this base flow requirement. Because the federal navigation power is constitutionally based, it may even limit federal statutes or federal agency actions that jeopardize navigation flows. Flows necessary for navigation on the mainstem of the Columbia and Lower Snake rivers may thus be the most legally secure water rights in the system.
Federal Reserved Water Rights (Non-Indian)
Hanford Reach National Monument
Non-Indian federal lands can also benefit from federal reserved water rights. In 2000, President Clinton signed an executive order creating the Hanford Reach National Monument, a 195,000-acre monument along the Columbia River in south-central Washington [Proclamation 7319, Establishment of the Hanford Reach National Monument (June 9, 2000)]. The site includes a 51-mile stretch of the Columbia River upstream of Richland. The monument designation was challenged in two separate lawsuits, but the U.S. Court of Appeals, District of Columbia, ruled in October 2002 that the designation had been proper under the 1906 Antiquities Act (16 U.S.C. § 431). The proclamation recognizes the importance of this reach of the river for fishery values. As discussed in a background paper accompanying the proclamation, the “[r]each contains islands, riffles, gravel bars, oxbow ponds, and backwater sloughs that support some of the most productive spawning areas in the Northwest, where approximately 80 percent of the upper Columbia Basin’s fall Chinook salmon spawn. It also supports healthy runs of naturally-spawning sturgeon and other highly-valued fish species.”7 The proclamation specifically addresses water rights in the Columbia. It “reserves in the portion of the Columbia River within the boundaries of the monument, subject to valid existing rights and as of the date of the proclamation, sufficient water to fulfill the purposes for which the monument is established.”8 It also bans any new agricultural irrigation within the monument boundaries.9
Significance for the Columbia River middle reach: The Hanford Reach National Monument withdrawal creates a non-Indian federal reserved water right with a priority date of June 9, 2000. Among the purposes of the withdrawal is the reservation of water necessary to support spawning salmon and other fish species. This reserved right will prevent any new upstream consumptive diversions that would leave insufficient flows in the
river to maintain the fishery protected by the reservation. As such, this reservation could be a significant constraint on new diversions upstream of the Hanford Reach.
Federal Regulatory Water Rights
Endangered Species Act
Mainstem water uses can also be limited by federal regulatory authority, sometimes referred to as “federal regulatory water rights.” Because of the Columbia River’s anadromous fishes, both the U.S. Fish and Wildlife Service and NOAA Fisheries have responsibilities for implementing the requirements of the Endangered Species Act in the basin. Between 1991 and 1992, Snake River salmon species were listed under the Act. Federal biological opinions issued in 1993 and 1994 were rejected by federal courts. A 1995 Biological Opinion established stronger protections, including increased flows and measures to improve indices (e.g., water quality and temperature) important for fishery resources. The Biological Opinion set a goal of adopting a revised opinion by the end of 1999. It also obligated the Corps of Engineers to prepare an environmental impact statement on breaching the four lowest dams on the Snake River (Ice Harbor, Lower Monumental, Little Goose, and Lower Granite; see Figure 3.1). The 1995 Biological Opinion was amended to incorporate additional protections as several other Columbia and Snake River runs have been declared threatened or endangered. Between 1995 and 1999, nine additional Columbia River basin fish species were listed under the Endangered Species Act (bringing the total number of listed populations to 12; see Table 1.1). In 2000 another Biological Opinion was issued for the Federal Columbia River Power System. In 2002 NOAA Fisheries concluded that federal agencies were successfully implementing 176 of 199 Reasonable and Prudent actions of the 2000 Biological Opinion requirements. The Biological Opinion was challenged in federal district court (Oregon) and in 2003 was found invalid. It was remanded back to the federal government for additional consulting and re-drafting. A revised Biological Opinion is expected to be issued later in 2004.
Significance for the Columbia River middle reach: The Endangered Species Act and the biological opinions produced under it are the principal federal regulatory constraints on federal agency actions affecting the Columbia River.
Federal Power Act
Since passage of the Federal Water Power Act in 1920, the Federal Power Commission and its successor, the Federal Energy Regulatory Commission (FERC), have been responsible for the licensing of hydroelectric power dams and facilities on navigable waterways. Typically, these licenses have been for 50-year periods. Two provisions of the act allow the FERC to impose license conditions protective of fish. Under section 10(j), FERC must impose conditions “based on recommendations received pursuant to the Fish and Wildlife Coordination Act from the National Marine Fisheries Service (today NOAA Fisheries), the United States Fish and Wildlife Service, and State fisheries and wildlife agencies” [16 U.S.C. § 803(j)]. Section 18 of the act also mandates that FERC “require the construction, maintenance, and operation by a licensee at its expense of … such fishways as may be prescribed by the Secretary of Interior or the Secretary of Commerce, as appropriate.”
Significance for the Columbia River middle reach: The Idaho Power Company’s “Hells Canyon Complex” of three dams (Hells Canyon, Oxbow, and Brownlee dams; see Figure 3.1) on the Snake River is a key Columbia River basin hydropower generating facility. This system is currently undergoing relicensing by the FERC, as its current license expires in 2005. An issue in the proceeding before FERC is how the dams should be operated or altered to protect salmon. It will thus be uncertain for several years how much water, and when, Idaho Power Company will have to release to protect instream values downstream of the dams. Instream flows below the Hells Canyon Complex will likely not be reduced during FERC proceedings.
STATE LAWS AND INSTITUTIONS
Near the beginning of the twentieth century, western states began to vest state administrative agencies with increasing amounts of authority to permit and manage the states’ water resources. Many of these efforts were a reaction to courts that had allowed many western streams to become over appropriated. Many of the efforts resulted from the scientific management movement that sought to rationalize business and governmental processes. The efforts were also encouraged by the Progressive conservation movement that sought multiple uses of natural resources (Hays, 1959). With passage of the Reclamation Act in 1902, western states had an incentive to systematize their water rights records so they would be more competitive in securing federally supported reclamation projects.
Washington Department of Ecology
Washington was one of several states to reorganize governmental structure to better address the increased priority on environment issues during the 1970s. The Department of Ecology was established in 1970 with the goals to prevent pollution, clean up pollution, and support sustainable communities. Several smaller agencies were combined into a single department that encompasses a wide range of tasks, including among others water allocation, protection of water quality, and land use planning, jobs that are separated at the federal level and in many other states. The comprehensive holistic jurisdiction of the Washington State Department of Ecology allows the consideration of spill-over or second order effects of environmental decisions from one medium to another. For example, consequences of land use decisions may be traced to effects on air and water quality and water use within a single organization. With regard to funding for the agency’s water resources program, budget year 2001 to 2003 included an appropriation that was lower than in the years 1993 to 1995. The program staff was reduced, including a reduction in water rights permit staff from 55 to 20. From
1997 to 2001, Department of Ecology enforcement staff was reduced from nine to one full-time equivalent.
Water Permit System
Washington State water law reflects a combination of the riparian water rights doctrine (generally used in the eastern United States) and the prior appropriation doctrine (used in different forms across the western United States). Although riparian rights initially framed the state’s water laws, the state made a gradual transformation to the prior appropriation doctrine that culminated in 1917 with passage of a water code establishing permits as the exclusive way to obtain surface water rights. In 1945 the permitting system was expanded to include groundwater (with some exceptions). Although prior riparian rights were guaranteed in this legislation, the Washington Supreme Court later ruled that riparian rights not used by 1932 had been forfeited.10
A continuing problem in many western states has been the development of an adequate procedure for recognizing water rights established prior to or otherwise outside the state permitting system. In Washington these nonpermitted rights include rights established before the 1917 surface water code, groundwater rights established before the 1945 amendment, groundwater uses exempted from the 1945 act, riparian rights, and prescriptive rights (until this means of appropriation was abolished). In 1967 the state enacted the Water Right Claim Registration Act (later amended) allowing claimants to register these nonpermitted water rights. A timely and proper registration afforded the claimant with prima facie evidence of the quantity and priority of the claimed right. Failure to file a claim constituted a waiver and relinquishment of the water use. Since 1917, water adjudications have also been used to determine surface water rights, especially in basins where tribes and federal agencies assert reserved water rights claims. The largest adjudication involves the Yakima River basin, commenced in 1977 and now nearing completion.
According to the current permitting procedure prescribed by
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:
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
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
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
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
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 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-
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.
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
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 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
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.
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
in many parts of the country, and Chapter 7 discusses strategies for better managing risks and uncertainties.