"The Supreme Court of Science" speaks on water rights: the National Academy of Sciences Columbia River report and its water policy implications.
I. INTRODUCTION
II. WATER DEVELOPMENT AND MANAGEMENT ON THE COLUMBIA
A. The Bygone Columbia
B. The Columbia Today: Dams, Water Use, and Salmon
C. Water Allocation by States Under Prior Appropriation
D. Pressure for Expanded Uses (New Rights and Uninterruptible
Status)
III. THE NATIONAL ACADEMY OF SCIENCES STUDY
A. NAS and the Committee
B. The Committee's Charge: Salmon Science and Water
Management Scenarios
C. Review of the Science
D. Findings and Recommendations
1. Six General Findings and Recommendations
2. Reaction to Ecology's Management Scenarios
IV. WATER POLICY IMPLICATIONS OF THE NAS STUDY
A. A Joint Forum for Columbia Basin Water Allocation
B. Conservation and Markets as the First Option for Meeting
New Demands
C. Tougher Requirements for Obtaining New Water Use Permits
D. Greater Flexibility in Water Allocation and Management
V. CONCLUSION: CAN SCIENCE REALLY CHANGE WATER POLICY IN THE WEST?
I. INTRODUCTION Like many rivers throughout the western United States, the Columbia has been dramatically altered by human activities. A series of major dams and diversions have radically changed the big river and its tributaries, such as the Snake, the Yakima, and the Deschutes, turning them into an economic engine for the Pacific Northwest. So thoroughly has it been exploited for hydropower, navigation, and irrigation that the Columbia has been described as a river that has "died and been reborn as money." (1) As the Columbia River system grew more industrialized, however, its legendary salmon populations declined sharply. The Columbia's salmon runs may once have numbered 16 million fish, but by the 1990s they had fallen to something like one million, and most of those fish were artificially produced in hatcheries. (2) As more Pacific salmon populations were added to the national list of threatened and endangered species, recognition grew in the Pacific Northwest that the Columbia Basin ecosystem may have been pushed too far, and that changes would be needed to restore the salmon runs. (3) The Columbia, however, still faces new demands for water from farmers, cities, and others who continue to regard the River as a viable source. These new demands are sizable--pending applications for new permits in Washington alone total up to 1.3 million acre-feet (4) of water. (5) These new demands could be viewed with some validity as either an incremental increase in use that is small in the context of the Columbia's annual flow, or as a new depletion that would further reduce river levels in the summertime when salmon are already stressed by low flows and high water temperatures. (6) Irrigators and other would-be water users have argued strongly for the former view, while environmental groups and other salmon advocates have forcefully advocated the latter position. (7) Caught in the middle is the Washington Department of Ecology (Ecology), the agency responsible for decisions regarding new permits to withdraw water from the Columbia for use in Washington. Seeking a definitive scientific answer to the dispute over the potential impacts of new water withdrawals from the Columbia, Ecology asked the National Academy of Sciences (NAS) to study the issue. (8) NAS, a nonprofit group of research scholars that is often called "The Supreme Court of Science," (9) has issued a variety of influential reports on water management and the needs of native fish species, including a much-publicized 2002 draft report that questioned the scientific basis of Klamath Basin water management. (10) Ecology's request was unusual, however, in that it came from a state agency, whereas NAS normally advises the federal government. (11) NAS released its report, Managing the Columbia River." Instream Flows, Water Withdrawals, and Salmon Survival (Report), on March 31, 2004. (12) The Report finds that additional water withdrawals from the Columbia would, indeed, increase risks to salmon during critical periods of relatively low flows and high water temperatures. These risks are exacerbated because the future of the Columbia River system contains so many big uncertainties--uncertainties regarding salmon survival, water supplies (both year-to-year and long-term), and water demands throughout the Columbia Basin. With its finding that new water withdrawals would increase salmon risks, the Report essentially says there is no such thing as a free drink, even from the mighty Columbia. The Report does not stop there, however. In response to Ecology's request for comment on various scenarios for Columbia River water management, NAS made a number of findings and recommendations regarding potential new water withdrawals from the Columbia. Briefly stated, the Report urges a new approach to water permitting decisions: review of new permit applications by a multijurisdiction Columbia Basin water forum, water markets and conservation as the first option to supply water for new uses, tougher requirements to obtain new permits, and greater flexibility in water allocation and management. (13) These recommendations may seem modest in an era when salmon recovery is a major priority of the Pacific Northwest, but they are contrary to long-standing traditions of water allocation and management in the western states. Moreover, the NAS recommendations carry major water policy implications for the Columbia Basin and beyond, because the issues and challenges facing Ecology on the Columbia are not so different from those facing water managers throughout the West. This Article identifies and briefly discusses the NAS Report's water policy implications. The point is not to analyze the Report and determine if its findings and recommendations are "correct," nor to provide a detailed evaluation of the Columbia River permitting controversy and the policy response to the Report. Instead, this Article focuses on the NAS recommendations regarding water allocation and management, explains how they differ from the traditional approach of western states, and discusses how water management might change if the states were to adopt these recommendations. In other words, the Article assumes the NAS recommendations constitute "good science," (14) and assesses how the policy toward new water demands might change if states in the West were to see the NAS recommendations as relevant and implement them. Part II of this Article provides background on the development and management of Columbia River water resources, the decline of salmon populations, and the controversy over new water withdrawals in Washington. Examining the NAS Report, Part III briefly notes the Report's scientific conclusions and restates its findings and recommendations regarding water allocation and management. Part IV identifies four major NAS recommendations that run counter to long-standing practices of the western states, and considers the water policy implications of these recommendations. Part V concludes by briefly discussing the Report's potential effects on water policy in Washington, the Columbia Basin, and the rest of the West. II. WATER DEVELOPMENT AND MANAGEMENT ON THE COLUMBIA The Washington controversy is fundamentally a dispute over the best use of the waters of the Columbia River. These waters have sustained salmon for millions of years and the human inhabitants of the Columbia Basin for hundreds of generations. In the 200 years since the Lewis and Clark expedition, however, the River and its tributaries have been dramatically altered, bringing many benefits for humans but also some serious costs--including the decimation of the once-mighty salmon runs. Water withdrawals, primarily for irrigation, are one cause of the River's altered state; while there is sharp disagreement over the impact of existing water withdrawals on Columbia River flows, irrigation is increasingly viewed as a significant part of the problem. (15) While water laws and institutions in the Pacific Northwest now take some account of the needs of salmon, water managers also face growing pressure to authorize new withdrawals that would further deplete flows in the Columbia. This section briefly addresses these background matters, providing some context for a discussion of NAS's Columbia River study. A. The Bygone Columbia In terms of flow, the Columbia is far and away the biggest river in the western United States, with an average annual discharge of 281,000 cubic feet per second (cfs). (16) By comparison, the second-biggest river on the West Coast, the Sacramento, averages 23,000 cfs. (17) The West's most storied river, the Colorado, carries less than haft the water of the Columbia's major tributary, the Snake. (18) The Columbia drains an area of 258,000 square miles, (19) including the vast majority of Idaho, Oregon, and Washington, plus sizable chunks of British Columbia, Montana, and Wyoming. Before it was harnessed by a number of mainstem and tributary dams, the Columbia, with highly variable flows and giant rapids, was a wild river in every sense. (20) The untamed Columbia may have been inhospitable to large-scale hydropower, irrigation, and navigation, but it provided an enormous natural bounty of salmon. The Columbia's annual salmon runs may once have been as great as 16 million fish, (21) a number that is roughly triple the current human population of the U.S. portion of the Columbia Basin. (22) These mighty salmon runs were the foundation of the Columbia Basin's first human society, that of the native tribes. Human residence in the Columbia Basin apparently dates back at least 12,000 years, and the tribes sustained themselves largely by catching salmon at Celilo Falls and other sites on the Columbia and the Snake. (23) As stated by the Supreme Court a century ago, for these tribes, "[t]he right to resort to the fishing places ... was ... not much less necessary than the atmosphere they breathed." (24) Nineteenth century settlers also harvested these runs extensively, and after canning techniques were refined, salmon fishing and canning became one of the region's first major industries. (25) B. The Columbia Today." Dams, Water Use, and Salmon Development of the Basin's water resources, and the resulting alteration of its rivers and decline of its aquatic ecosystems, occurred in three major stages. First, irrigation diversions on Columbia and Snake River tributaries such as the Boise, Yakima, and John Day Rivers began in the mid-to late-1800s. Such diversions were often relatively small in scale but were cumulatively significant, causing many of these rivers to be severely depleted by the early part of the 20th century. (26) Enactment of the 1902 Reclamation Act (27) brought the second stage of development: the construction of major federal dams on Columbia and Snake tributaries to store water for irrigation. Within ten years, the United States Bureau of Reclamation (then called the Reclamation Service) was building major irrigation projects on the Boise, Snake, Umatilla, and Yakima Rivers, and many others would follow. (28) When the Bureau of Reclamation completed a dam on Oregon's Owyhee River in 1932, it was the highest dam in the world at the time. (29) The third stage was the building of major dams on the Columbia and lower Snake River mainstems, largely for hydropower purposes. Construction of the Bonneville and Grand Coulee Dams began in 1933, and within 40 years there were six major federal dams on the Columbia and four on the lower Snake, along with five major nonfederal hydropower dams on the Columbia, an additional five major dams upstream in Canada, and three more nonfederal hydropower dams on the Snake at Hells Canyon. (30) This massive development "flattened" the Columbia River hydrograph, sharply reducing the Columbia's naturally high summer flows and increasing the low winter flows, (31) resulting in flow patterns very different than those in which the Basin's salmon populations evolved. Today, irrigation is easily the biggest offstream use of water in the Columbia Basin, accounting for at least 80 percent of water withdrawals for human uses. (32) The number-two use, public water supply, is small by comparison but growing along with the region's population. (33) Hydropower generation is the other major water use in the Columbia Basin states, accounting for more than half of the region's electrical supply and nearly two thirds of its generation capacity as of 2004. (34) The Pacific Northwest received many benefits from development of the Columbia River and its tributaries, but it paid with its salmon runs. Not only did dams and diversions drastically alter flows, they also blocked salmon from reaching vast areas of their historic habitat. (35) When combined with other factors such as overfishing, logging, and other land-use practices, the effects of water development on salmon have been devastating. One leading commentator, Columbia River water expert John Volkman, has summarized the decline as follows: The runs were still relatively large in the 1950s, but with the closing of the floodgates at the last Snake River dam, accelerated timber harvest and all the other changes, Snake River salmon populations went into serious decline. The declines became "synchronous" and widespread in the late 1960s. From historic peaks ranging from ten to sixteen million adult fish, the Columbia runs declined to something like a million. As bleak as this number is, it understates the decline of the wild salmon stocks that scientists see as the "seed corn" for the salmon run.... Only a handful of populations, the Hanford Reach fall chinook, the Wenatchee River sockeye and several summer steelhead stocks in Oregon's John Day River, for example, are still considered healthy. (36) Many populations of salmon and other anadromous fish (37) have been listed as threatened or endangered under the Endangered Species Act (ESA). (38) Efforts to save and restore Columbia Basin salmon populations have included some measures aimed at ensuring adequate flows in the Snake and Columbia Rivers. For example, when the Northwest Power Planning Council--a regional entity charged with seeking appropriate balance between hydropower generation and ecosystem protection in the management of federal hydropower dams in the Basin (39)--developed its original plan for the Basin's fish and wildlife in the 1980s, the key element was a "water budget" to provide mainstem flows for salmon. (40) More recently, the Bureau of Reclamation has essentially rented water from Idaho irrigators in an effort to provide an additional 427,000 acre-feet of Snake River water for salmon. (41) Perhaps most significantly, federal agencies operating under the ESA have established flow targets on the Columbia and Snake Rivers for salmon. (42) But Columbia River flows commonly fall below these targets, especially in the summer, largely because of water withdrawals for irrigation and other purposes. A federal study in the mid-1990s found that in the driest summers, average Columbia River flows at McNary Dam fall 90,000 cfs short of the target levels for salmon, primarily because of upstream water withdrawals for irrigation. (43) C. Water Allocation by States Under Prior Appropriation In the Columbia Basin, as in the rest of the United States, water allocation is chiefly a state matter, and water use is regulated primarily under state law. States have occupied the field of managing water resources largely because the federal government has often deferred to the states in this area, allowing each state to establish its own rules for how its waters will be allocated and used. (44) Federal agencies also play major roles in the management of Columbia Basin waters, especially where dam operations are concerned. (45) For example, the United States Army Corps of Engineers operates major dams on the Columbia, the Snake, and several of their tributaries, largely for hydropower and flood control; the Bureau of Reclamation operates dozens of dams throughout the Basin, primarily for irrigation; and the Federal Energy Regulatory Commission licenses more than a dozen nonfederal hydropower dams in the Basin, including major facilities on the Columbia and Snake mainstems. (46) Thus, Congress has left the states in charge of allocating water among users and regulating their use, (47) even though the federal government has been largely responsible for developing and managing the Basin's water resources, and even though these resources are shared by two nations and several U.S. states. (48) Washington, like Idaho, Montana, and Oregon, allocates water under a statutory system based on the prior appropriation doctrine. (49) For purposes of this Article, several classic features of prior appropriation are worth noting. (50) First, water is a public resource subject to the control of each state. Second, states recognize private rights to use this public resource if the water is diverted from its natural course and applied to a "beneficial use" such as irrigation, industry, or domestic water supply. Third, such "water rights" generally last forever. (51) Fourth, each water right's priority is based on its seniority, so that in times of shortage, older ("senior") water rights get all the water they are entitled to before newer ("junior") rights get any. (52) Fifth, each water right has a specific purpose of use, place of use, and point of diversion; for example, a particular water right may authorize irrigation of a specifically described 200 acres in Benton County, Washington, with water to be taken from a specifically described point on the Columbia. Sixth, a water right may be changed (or "transferred") temporarily or permanently to a new place of use, type of use, or point of diversion, but only if the state approves the change based on a finding that it would not harm other water users. Thus, an irrigator may sell or lease her water rights to another irrigator, or to a city or some other water user, but such changes may not adversely affect other users on the same system, nor can they improve a water right's priority date or increase the maximum quantity of water to which the user is entitled. The Columbia Basin states now require that any person seeking to make a new use of water (rather than just continue an ongoing use) first obtain a permit from the relevant state agency. (53) While each state has its own requirements, in general a state agency will not issue a new water use permit if it finds that the available water supply has been fully allocated to existing users or if the permit might somehow violate the public interest. (54) A permit provides no guarantee of a reliable water supply, however, because of the prior appropriation seniority system--a permittee cannot use water if all the available supply is required to satisfy older, higher-priority rights. Traditionally, prior appropriation did not protect water flowing in its natural course ("instream flows")--primarily because the doctrine required a diversion of water from its natural course as an indispensable element of a water right, but also because of doubts about whether instream uses were truly "beneficial." (55) Led by Oregon and Washington, the western states began easing these restrictions in the latter half of the 20th century, and today all the Columbia Basin states recognize water rights for instream flows. (56) Instream flow protections are established differently from traditional water rights under prior appropriation because they generally are created only in response to a request from a state agency, primarily for the purpose of protecting sufficient flows to provide adequate habitat for fish populations. (57) Once created, however, instream flow protections are much like regular water rights in that they carry a specific location and quantity of water, along with a fixed priority date that determines their place in the priority system. Washington established instream flow protections for the Columbia River mainstem in 1980. (58) Users with water rights senior to 1980 could continue to use water if the Columbia fell below these specified levels. Ecology continued to issue new permits, however, and these post-1980 users could have their water use cut off if the River fell below the minimum flows; (59) these junior rights came to be known as "interruptible." In the critical drought year of 2001, however, Ecology allowed irrigators holding these interruptible rights to continue their use despite low flow conditions on the Columbia. (60) Through the 1980s and into the 1990s, the states continued to issue permits for water withdrawals from the Columbia and Snake as the Basin's salmon populations continued to decline. In response to ESA listings of Columbia Basin salmon populations, Idaho, Oregon, and Washington all imposed moratoria on the issuance of further water withdrawal permits from the Columbia and Snake Rivers. (61) Although the Washington and Oregon moratoria did not absolutely prohibit all new diversions, (62) they did represent an effort to prevent additional water withdrawals from causing further risks to salmon. D. Pressure for Expanded Uses (New Rights and Uninterruptible Status) Washington's moratorium was not popular with agricultural interests and others--especially in the eastern half of the state--who believed that the economic importance of new Columbia River water withdrawals outweighed any risks to salmon caused by reduced flows. (63) In 1997, the Washington legislature passed a bill to lift the moratorium and new Governor Gary Locke signed it, although he promised that Ecology would not "process any pending or future applications for new appropriations until instream flows are established and a determination is made that water is available for withdrawal ... [or] make decisions for new appropriations that would jeopardize regional salmon recovery efforts." (64) Thus, lifting the moratorium did not immediately result in the issuance of new permits, but it raised the pressure on Ecology to authorize new withdrawals. Some existing Columbia River water users were also asking Ecology to improve the status of their water rights. Specifically, those users whose water rights were junior to the 1980 instream flows on the Columbia--and therefore "interruptible" during low-flow years--were seeking to have their rights converted to "uninterruptible" status. (65) Ecology had issued interruptible water rights exceeding 172,000 acre-feet, (66) and these users were essentially seeking to have their water rights elevated in priority over the 1980 instream flows. (67) Serious questions persisted, however, about the potential for new or expanded water withdrawals to harm salmon populations by depleting summer flows in the Columbia River mainstem. The National Marine Fisheries Service, responding to a proposal for a large new irrigation withdrawal from the Columbia River in Oregon, found that the new withdrawal could jeopardize salmon by further reducing mainstem flows that already fall below target levels in most years. (68) In Washington, two environmental organizations petitioned Ecology in 1999 for a new moratorium on Columbia River water withdrawals until it established instream flow needs for salmon. (69) Under pressure from all sides regarding Columbia River water, Ecology launched its "Columbia River Initiative," with the stated purpose of allowing access to new water withdrawals while providing support for salmon recovery. (70) Ecology acknowledged that decisions on Columbia River water management had become increasingly controversial, and that "lack of scientific consensus [had] resulted in gridlock." (71) In the hopes of resolving the gridlock, or at least providing a scientific foundation for a defensible water management regime, Ecology asked the National Academy of Sciences for a study of the relevant issues on the Columbia. III. THE NATIONAL ACADEMY OF SCIENCES STUDY A. NAS and the Committee NAS, which conducted the Columbia River study, is the most prestigious national entity for scientific research. As NAS stated in one of its reports, "NAS and its associated organizations ... constitute what has been called 'The Supreme Court of Science' and the most important independent expert advisory mechanism for science and technology in the United States and perhaps in the world." (72) The National Research Council (NRC) is the working arm of NAS, carrying out most of the studies done in its name. (73) NRC fulfills this mission primarily by "calling upon a wide cross section of the nation's leading scientists, engineers, and other professionals, who serve on its committees without pay." (74) The NAS study process has multiple safeguards to provide studies that are balanced, objective, and well-grounded in science. Once a topic is approved for study, NAS seeks to ensure that each committee has the appropriate balance and expertise for its assigned task. All reports are subject to peer review for scientific validity and to further review to ensure that the committee's conclusions and recommendations are supported by the body of its report. (75) NAS (76) drew its committee for the Columbia River study from a variety of disciplines and backgrounds. The Chair, Ernest T. Smerdon, was an expert on water resources and agricultural development who recently retired as Vice Provost and Dean of the College of Engineering and Mines at the University of Arizona. (77) The other 12 committee members included a professor of agricultural and resource economics at Oregon State University; a consulting fisheries biologist from Eagle, Idaho; the director of the International School for Water Resources at Colorado State University; a consulting fisheries scientist from Redmond, Washington; a professor of social ecology with water resources expertise from the University of California-Irvine; a professor of ecology from South Dakota State University; an emeritus professor of zoology and limnology from the University of Wisconsin-Madison; a water quality expert retired from the United States Geological Survey; an engineering professor from the University of Colorado; a watershed management coordinator from the Michigan Department of Natural Resources; an emeritus professor of hydrologic science from the University of California-Davis; and an attorney with expertise in water rights and resources. (78) The committee staff was led by Study Director Jeffrey W. Jacobs from NRC's Water Science and Technology Board. (79) The NAS committee held a series of public meetings, three in Washington State and the last in Washington, D.C., where it heard from Ecology staff and a variety of "others with specific interests or expertise." (80) A variety of experts from government, major universities, and the private sector reviewed the draft report. (81) The "prepublication" final copy of the report was released to the public on March 31, 2004. (82) B. The Committee's Charge: Salmon Science and Water Management Scenarios Ecology's requests to NAS were both general and specific. (83) The general request was for a review of the science underlying decisions regarding new water withdrawals from the Columbia River and the potential effects of such withdrawals on salmon. The Report describes the general portion of the committee's charge as follows: A key issue in this study was the pending applications for additional water rights permits from the mainstem Columbia River in the State of Washington, applications which have been on hold for some time. Our committee's charge was to consider the implications for [sic] potential additional withdrawals for Columbia River salmon and to comment on the body of scientific knowledge related to this issue and its implications. The committee was not charged to review all ecological issues (of which there are many) across the basin which affect salmon but rather to conduct a more focused investigation regarding conditions in a stretch of the mainstem Columbia River in the State of Washington. Nor was the committee charged with recommending policy decisions but rather was requested to review the scientific information available by decision makers and to comment on it. (84) More specifically, Ecology presented five management scenarios involving proposals for water withdrawals from the Columbia River mainstem and asked NAS to respond to these scenarios. The Report notes that these five scenarios "contained many assumptions and actions related to water withdrawal quantities, management actions, and water use fees.... Several possible management actions did not contain enough specificity to enable detailed evaluation." (85) In general, Ecology's management scenarios (except for the highly uncertain fifth scenario) would involve some combination of the following: i) issuing new permits for water withdrawal from the Columbia up to some defined quantity, ii) converting existing "interruptible" water rights to "uninterruptible" status so that use of these converted rights during low-flow periods would not be curtailed to protect flows for salmon, iii) requiring "state of the art" water use efficiency practices for new or converted water rights, iv) imposing annual water use fees applicable to new or converted water rights, v) establishing new mechanisms for permanent or temporary transfers of existing water rights into new uses, and vi) various other management measures. Ecology's five scenarios may be summarized as follows: Scenario 1: Ecology would * issue new permits from the Columbia up to 1 million acre-feet (AF) per year; * convert existing interruptible water rights to uninterruptible status; * require "state of the art water use efficiency practices" by users of all new and converted water rights; * reassess the management program for Columbia River water withdrawals periodically, with formal reviews at ten years and twenty years, to reflect the latest scientific information; * establish a functioning water market or water bank for Columbia River water rights; * assume that Oregon may withdraw up to an additional 600,000 AF from the Columbia mainstem for its future needs; and * protect an additional 427,000 AF of Snake River instream flows through the Washington portions of the Snake and Columbia Rivers. (86) Scenario 2: Same as Scenario 1, except that Ecology would * impose an annual fee of $10 per AF on all new and converted water rights; * use proceeds of these fees to acquire water rights to improve streamflows, restore salmon habitat in the Columbia and its tributaries, and possibly develop new water storage projects; * issue new permits from the Columbia up to 700,000 AF per year; and * issue additional new permits up to 300,000 AF per year only upon a showing that "conservation investments were in place for a majority" of existing Columbia River water users. (87) Scenario 3: Same as Scenario 2, except that Ecology would * charge $20 per AF annually (instead of $10) for new and converted water rights; and * provide financial support for new water conservation measures and potential water supply improvement measures, such as new storage projects. (88) Scenario 4: Ecology would * require "direct mitigation in the mainstem" for any new water use on the Columbia, i.e., require that new withdrawals be fully offset by acquiring existing water rights, implementing new water conservation projects, or using new storage; * impose a fee of $30 per AF annually on converted water rights; and * use the proceeds of the $30 annual fee to acquire water rights for instream flows or fund other habitat improvements in the Columbia mainstem and tributaries. (89) Scenario 5: Ecology would consult with state, tribal, and federal fisheries managers on each proposal for an individual new water right. (90) "Under this scenario whether or not mitigation is required and the type and quantity of that mitigation are decisions made on each permit on a case-by-case base [sic] as a result of the consultation." (91) It is worth noting a couple of issues that Ecology did not ask NAS to address. First, there was no request to determine specific minimum flows of the Columbia River for salmon survival and recovery--that is, NAS was not asked to quantify how much water salmon "need" in the Columbia mainstem. Second, Ecology did not ask for an assessment of the harm to salmon (if any) caused by existing water withdrawals; instead, NAS was essentially directed to take existing withdrawals as a given in determining the impacts of potential new withdrawals. (92) C. Review of the Science In reviewing the science regarding the impacts of Columbia River water management on salmon populations, NAS addressed a number of subjects. NAS examined trends in water flows, temperature, and quality in the Columbia River; the relationship between these parameters and salmon survival; the existing use and allocation of water from the Columbia; the laws and institutions that govern water management in the Columbia Basin; and factors (such as ocean conditions and climate change) that create uncertainty for the future because they are hard to predict and control. NAS devoted the great majority of its Report--a full 160 pages--to an examination of existing scientific data and other information on these subjects. (93) This portion of the Report is summarized below in the briefest possible terms. In its chapter on "Hydrology and Water Management," (94) the Report notes that human activities--particularly the construction of 50-plus major dams on the Columbia River and its tributaries (95)--have dramatically altered the River's natural flow patterns. Much of this change, though certainly not all, has been caused by the operation of the Federal Columbia River Power System (96)--the system of large hydropower dams on the Columbia and Snake River mainstems. The Columbia also has a number of major water withdrawals for offstream uses, primarily for the purpose of irrigation. These existing withdrawals have little impact on Columbia mainstem flows during the winter months, but in July and August they may divert nearly ten percent of the flow in average years and more than fifteen percent in very dry years; the report stresses the need to consider the effects of water withdrawals during these low-flow periods. (97) The report also notes that mainstem Columbia water temperatures have been steadily increasing over the years, creating an additional risk to salmon, and that climate change could exacerbate this problem in the future. (98) This chapter concludes by saying, "Although precise cause-and-effect mechanisms are hard to define clearly, the changes in Columbia River hydrology identified in this chapter have greatly affected the basin's salmon populations." (99) The following chapter, "Environmental Influences on Salmon," (100) acknowledges that Columbia Basin salmon are among the world's most intensively studied fish species, but that much is not yet known about them. After noting that Columbia Basin salmon populations have declined precipitously over the past several decades, (101) the Report examines research, modeling, and alternative hypotheses regarding the declines, focusing on studies regarding the effects of Columbia River flow levels and velocities on salmon survival. (102) In the end, NAS was unable to reach a general conclusion on the importance of these factors, but found that critically low flows and high water temperatures would present a significant problem: Within the body of scientific literature reviewed as part of this study, the relative importance of various environmental variables on smolt survival is not clearly established. When river flows become critically low or water temperatures excessively high, however, pronounced changes in salmon migratory behavior and lower survival rates are expected. (103) The Report then examines "Water Laws and Institutions," (104) highlighting the many federal, tribal, and state governmental entities that have a hand in Columbia Basin water management. (105) It also notes that a multistate entity, the Northwest Power and Conservation Council (formerly the Northwest Power Planning Council), has been authorized by Congress to balance power production with fish and wildlife conservation in the Columbia Basin. (106) It goes on to discuss tribal claims to the Columbia Basin's water and salmon resources, and identifies a few of the more important federal rights and obligations regarding the Columbia (including the protection of salmon and other endangered species). (107) The chapter ends with a discussion of state water laws and institutions, with a primary emphasis on Washington. Idaho, Montana, Oregon, and Washington all allocate rights to use water under the prior appropriation doctrine (108) and require anyone seeking to make a new use of water first to obtain a permit from the state. (109) The next chapter, "Better Management of Existing Water Supplies," (110) essentially examines the prospects for meeting water demands through reallocation of existing water supplies rather than through new permits. The chapter begins with a discussion of studies on the economic value of water in various uses such as agriculture, municipal water supply, hydropower generation, and recreation. The Report finds substantial differences in the dollar value of water based on the category of use (111) and explains that "[t]he significance of the differences across uses is that there is a great potential to promote economic growth and increase overall social benefits by transferring increments of water between uses (from low- to higher-value uses)." (112) It then discusses how water markets and water banks may facilitate such transfers on either a temporary or permanent basis and notes that water banks and markets are growing in popularity across the West. (113) The chapter then notes that water conservation measures may provide a source of "new" water supply, but they tend to be expensive--often too much so for many agricultural users. (114) The chapter concludes by urging Ecology and other water management entities to promote water marketing and conservation as viable means of providing water for economic growth without the need for additional withdrawals that could harm salmon. (115) Chapter 7, "Water Resources Management, Risks, and Uncertainties," (116) synthesizes information from the previous chapters regarding the major risks and uncertainties facing both salmon and water managers in the Columbia Basin. Water supplies in the Basin are uncertain, both from year to year (drought) and over the long term (climate change). Water demands are also uncertain, especially because there are many entities with claims or interests in Columbia Basin water but no single entity with overall management authority. Risks to salmon grow with Columbia Basin water demands, and they are greatest when high demands coincide with naturally low flows in the River. (117) The take-home message is that water right permitting decisions should account for major uncertainties regarding future water supplies and demands, especially given all the other factors that pose serious risks for salmon populations. As the Report states, "[g]iven the current [legal/institutional] setting and likely future climatic and other trends, additional water withdrawals from the river during seasons characterized by low flows (particularly in drought years) will pose additional risks to salmon survival," which Ecology should consider in making decisions about proposed withdrawals during such low-flow periods. (118) The Report goes on to address how Ecology and other Columbia Basin water entities should approach such decisions on water permitting and management. First, it notes that an "interjurisdictional water organization" for the Columbia Basin--involving the Canadian and U.S. governments, state and provincial governments, and tribes--could reduce uncertainties and risks arising from uncoordinated decision making by each of these sovereign entities. (119) Second, the Report suggests dealing with multiple uncertainties through an adaptive management approach whereby today's incremental management decisions not only promote the development of new information, but also preserve maximum flexibility to make future changes in response to such information. (120) Third, and perhaps most interestingly, the Report states that science can inform policy decisions on matters such as water permitting, but cannot make these decisions or eliminate all uncertainty surrounding them. (121) "Progress toward 'comprehensive' management cannot be accomplished through scientific inquiry alone, but rather requires stakeholders and management agencies to work with scientists in a collaborative learning process, such as that framed by adaptive management principles." (122) D. Findings and Recommendations Consistent with Ecology's request, the Report effectively offers two sets of findings and recommendations: one primarily addressing general concepts, the other reacting more specifically to Ecology's five management scenarios as described above. 1. Six General Findings and Recommendations A brief "epilogue" chapter begins by noting that various human activities have affected Columbia River salmon populations and that the long-term decline of these populations is undeniable. (123) It then identifies "six key findings and recommendations" of the Report, which may be summarized as follows: 1) Critically low flows or high water temperatures can be expected to cause significant changes in salmon migratory behavior and lower salmon survival rates. (124) 2) Ecology and its Columbia Basin counterparts should continue to study and consider using water transfers and market-based programs in lieu of issuing new water right permits. (125) 3) Converting water rights to uninterruptible status is not recommended because it would reduce management flexibility in periods of low flows and high water temperatures. (126) 4) Thorough, inclusive management strategies require not only sound science, but also readiness on the part of decision makers to act despite uncertainty. (127) 5) Decisions on new water permits are ultimately matters of policy; but because new withdrawals would increase risks to salmon in low flow/high temperature periods, any new permits should provide Ecology with the authority to halt withdrawals during such periods. (128) 6) Washington and other Columbia Basin jurisdictions should establish a joint forum to document and discuss the effects of significant proposed new water withdrawals. (129) 2. Reaction to Ecology's Management Scenarios. The Report also offers a few paragraphs of "evaluation and commentary" regarding the five potential water management scenarios identified by Ecology. (130) In these paragraphs, NAS addresses a number of significant water policy issues in language that is clear, concise, and direct. Because the next section of this Article focuses heavily on the water policy implications of this piece of the Report, much of it appears here verbatim:
In general, the adoption of concepts related to adaptive
management, such as periodic review and adjustment of the program
and monitoring, and market-based conservation strategies such as
conservation, the use of water markets (or "banks"), and charging
for water rights, is commendable....
A pervasive aspect of the scenarios is the lack of a comprehensive basin-wide assessment of water uses and needs as a context for evaluating permit applications. Small (relative to the flows of the Columbia River) withdrawal and permitted volumes will have only small, if not miniscule, effects on the water budget of the basin as a whole. All water uses accumulate, however, both in Washington and elsewhere along the mainstem, as well as the along [sic] tributary streams. If future demands for water increase (which seems likely given recent and projected demographic and economic trends), the accumulation of risks to salmon survival will be all the greater (given the variety of risks that affect salmon survival, assigning precise and credible levels of risk to changes in flows and temperature is extremely difficult). These effects would be magnified by reductions in low flow that could attend prospective climate warming as well as during periodic unfavorable ocean conditions. The lack of a comprehensive basin-wide management structure hampers the ability to make comprehensive judgments (both in time and over space), and it supports this report's recommendation for creating a basin-wide framework for coordinating water use data and strategies. * Conversion of interruptible to uninterruptible water rights (Scenarios 1-4). Conversion of interruptible water rights to uninterruptible status makes adaptive responses more difficult. Interruptible water rights are interruptible so that at times of scarcity, instream flows can be protected. Making any out-of-stream right uninterruptible reduces flexibility to retain water in the river when salmon need it most---during periods of high demand and low flows. .... * Reevaluation at 10 and 20 years (Scenarios 1-3). The idea of re-evaluating the scenarios periodically is excellent. For this reevaluation to be meaningful, however, the program needs to be designed so that any aspect of it could be undone (reversed) if the evaluation calls for such a reversal. No evidence is provided of any such reversibility. Instead, the result will be decreasing reversibility by allowing for some interruptible water rights to become uninterruptible. In some cases, more frequent reevaluations might be necessary.... .... * Charge for water rights (Scenarios 2-4).... Charges for water rights in this scenario appear to be arbitrarily selected and out of proportion to the probable costs of mitigation and the value of water to the users. For example, the scenarios specify charges of $10 to $30 per acre-foot per year to be used (among other things) to acquire mitigation water in low-flow years. This scenario thus proposes increasing the priority of a water permit for $10 to $30 per acre-foot per year and using the money to buy water for what could be several times that amount. * Water markets (Scenarios 1-4 and perhaps 5).... [W]ater markets, water banks, and other such market-based mechanisms offer potential improvements over existing systems of water allocation. However, restricting markets only to the Columbia River's mainstem, and only to Washington, is narrowly construed. The Department of Ecology already allows for 600,000 acre-feet per year to be used by Oregon in its assumptions, but no allowances are made for uses by Idaho, Montana, or British Columbia, or by tribes.... * Structural storage measures (Scenarios 2-4 and perhaps 5). A lack of specificity in this scenario inhibits the ability to comment extensively upon it. It implies that tributaries are to be used for additional storage (which may have negative consequences for salmon), but the habitat and condition of tributaries are of critical importance for Columbia River water quality and for survival of salmon that use the river. Tributaries should thus be considered for protection and mitigation as well. (131) Thus, the Report has a great deal to say about water management. It addresses key scientific issues, certainly, but also touches upon law, institutions, and decision-making processes. The Report is also filled with significant water policy implications, not just for Washington, but for the entire Columbia Basin and beyond. The following section identifies and discusses some of these implications. IV. WATER POLICY IMPLICATIONS OF THE NAS STUDY The heart of the NAS Report is a scientific finding that may be summarized as follows: Water withdrawals that reduce Columbia River July-August flows will increase risks to salmon, but the magnitude of the risk is hard to estimate because of uncertainty about future water supplies and demands in the Columbia Basin and about other factors that pose risks to salmon. (132) This finding seems rather cautious and unremarkable, but it provides the scientific foundation for the NAS recommendations regarding Columbia River water management. Because these management recommendations flow logically from this scientific basis, they might seem unremarkable too--except that they go directly against the western states' longstanding approach to water allocation under prior appropriation, as explained below. A. A Joint Forum for Columbia Basin Water Allocation NAS found that one of the major sources of uncertainty in Columbia River water management was the lack of predictability regarding future water withdrawals, due in part to the lack of basin-wide control or coordination regarding new water permits. (133) Thus, NAS strongly recommended creating a joint forum among Columbia Basin water entities to consider the basin-wide implications of proposed significant new water withdrawals from the Columbia River system. (134) The Report states, This forum need not entail anything binding other than an obligation to refer the applications. At a minimum, proposed diversions would be subjected to professional and public scrutiny, magnitude of risk, possibilities of mitigation, and system-wide equities. A basin-wide forum for considering withdrawal permit applications would enhance unified water management across the Columbia River basin. The State of Washington and other basin jurisdictions should create a joint forum for documenting and discussing environmental and other consequences of proposed diversions that exceed a specified threshold. (135) This seemingly modest recommendation for regional review of individual permit applications is contrary to a basic assumption of water management in the West--that each state will make its own decisions about allocation of "its" waters to serve its own interests. Of course, states have staunchly resisted any federal government interference with their individual autonomy over water allocation, especially in the context of federal environmental laws. (136) The states have not been so vocal in opposing any potential "interference" by their fellow states, but neither have they commonly banded together in joint efforts to address water allocation issues on interstate rivers. To the contrary, states have routinely fought among themselves over interstate rivers as each state goes all out to protect its individual interests, as shown by the recent battle among states along the Missouri. (137) Even where states have entered into a compact that purportedly allocates the waters of an interstate river, these compacts have not precluded further litigation among the states over the management and use of the rivers' waters. (138) The chief motivation for some major compacts was the promise of federal water projects that would allow for expanded storage and use of the waters of an interstate river but would be built only if the states could agree on allocation of its waters. (139) It seems fair to say, at least in the West, that states generally have viewed interstate compacts primarily as means of protecting their individual interests. By contrast, NAS has proposed that the Columbia Basin states band together for a fundamentally different purpose: to maintain the ecological commons. (140) In other words, NAS seems to envision a joint Columbia River forum that would prioritize protection of adequate flows for salmon habitat rather than allocation of water among the states for maximum "beneficial use." Thus, while state permitting statutes allow rejection of a new water withdrawal that would impair the public interest, (141) the joint forum would essentially ask whether a new permit would harm the public interest of the entire Columbia Basin--including the interest in sustaining salmon runs. The Columbia Basin has an established regional entity, the Northwest Power and Conservation Council (formerly the Northwest Power Planning Council), charged with developing a Columbia River management regime that adequately protects fish and wildlife resources. (142) The Report notes that the joint forum "could be convened within the existing Northwest Power and Conservation Council, which includes broad representation of political entities from across the basin," (143) but stops short of recommending this arrangement. (144) The Council has been criticized for failing to take strong measures to save salmon, especially regarding mainstem flows in the Columbia and Snake. (145) On the other hand, it was the Council which in 1993 called on the states to work together in protecting adequate mainstem flows for salmon, prompting Idaho, Oregon, and Washington to impose moratoria on new Columbia-Snake water withdrawals. (146) The Washington Legislature soon acted to repeal the permitting moratorium, (147) however, which shows the difficulties of convincing any state to forego new water diversions for the good of a broader region--even if the other states are willing to participate. Under pressure from the Endangered Species Act, some of the other western states have entered into cooperative agreements regarding water use and endangered species recovery in interstate river basins such as the Upper Colorado (148) and the Platte. (149) The United States Department of the Interior, a key participant in the Upper Colorado and Platte recovery programs, has taken the position that cooperative regional approaches are the best way to address ESA issues involving river management. (150) Secretary of the Interior Gale Norton has said, "We need more Upper Colorado Endangered Fish Recovery Programs and fewer Klamaths." (151) It remains to be seen whether the Upper Colorado and Platte programs can successfully rebuild populations of ESA-listed species. (152) These two collaborative programs do seem to demonstrate, however, that interstate agreements regarding water and ecosystem management can be workable from the states' standpoint, especially given the alternatives of conflict and litigation. (153) B. Conservation and Markets as the First Option for Meeting New Water Demands The Report recognizes that the Columbia Basin will continue to see sizeable new demands for water to supply cities, farms, and other purposes over the next 20 years--demands that easily could exceed one million acre-feet in Washington alone and two to three million acre-feet throughout the Basin. (154) The Report does not suggest that these new demands should not receive water, but it does encourage the states to consider ways to satisfy them without simply issuing new permits: Increased flexibility in managing the Columbia River will require greater emphasis on nontraditional approaches to augmenting water supplies, such as water marketing and water transfers, and greater cooperation of political entities across the basin. These market-based programs may require capital investments in physical infrastructure and human resources investments in experts with skills in fields such as finances, marketing, and public administration. Programs such as water transfers, groundwater banking, and other measures to increase the efficiency of water use hold promise in helping sustain the regional economy in ways that do not require ever-increasing water withdrawals. Although water uses across the basin should not be simply channeled to the highest bidders for water, such measures hold promise for helping support both economic and environmental goals and should be carefully considered. (155) This recommendation goes against another well-established practice of the western states in allocating water: New water withdrawals should be permitted if there is water legally available for appropriation; and if there is none, the best option is to develop new water supplies through storage projects or pumping groundwater. While many observers believe that the era of major dam building in the West is over, the states have not wanted to concede this point. (156) Water right transfers and other market-based tools have not been the preferred approach to meeting new water demands in the West, as shown by the rather small number of water transactions taking place throughout the region. (157) And the states' approach to water conservation as a management tool is similar to Vice President Cheney's widely quoted view of energy conservation (158)--that is, water conservation may be a sign of personal virtue, but it is not a viable water policy. (159) The Report suggests that Columbia Basin states can no longer afford simply to accept all existing water uses as a given or to rely primarily on new permits or new storage projects (160) to meet new water demands. Instead, the states should take steps to encourage greater productivity from existing water supplies--that is, to promote more efficient use of water that has already been allocated. For example, the states could subsidize improvements in irrigation systems to reduce evaporation or seepage losses, thus improving their physical efficiency. In addition, the states could help establish water banks or other market mechanisms to facilitate the (temporary or permanent) movement of water from lower to higher valued uses, thus increasing the economic efficiency of water use. (161) Either way, existing water uses could effectively provide a source of supply to meet new demands without the need for additional withdrawals from the Columbia or its tributaries. By emphasizing water conservation and market-based approaches that would encourage (or perhaps even require) changes in established water uses, the Report runs contrary to another fundamental feature of water management in the West: nearly absolute protection of existing uses. In an earlier article, I observed that the Columbia Basin states have consistently refused to interfere with established water uses, even where the states have had to bend, change, or ignore traditional prior appropriation hales to do so. (162) Of course, one drawback of protecting the status quo is that it forces prospective new users to look elsewhere for their water supply: "By refusing to apply laws that would reduce the quantity of water legally held by existing users, states limit the amount of water potentially available for new appropriations." (163) To the extent that new demands must be satisfied by shifting water from existing uses, however, the opportunity cost of protecting the status quo goes up. The Report identifies several areas of the West where market-based approaches are being used to address difficult water resource problems. It cites examples from California, Idaho, Oregon, and Washington, as well as a newly authorized interstate water bank on the lower Colorado involving Arizona, California, and Nevada. (164) The Report certainly could have offered further examples, such as the thriving trade in shares of the Colorado-Big Thompson Project on the northern Colorado Front Range, probably the nation's best-developed water market. (165) In addition, a wide variety of "water banks," many of which have at least some environmental purposes, have been sprouting across the West in recent years. (166) In short, while the NAS recommendation may cut against a strong tradition in the western states, it is entirely consistent with a modern trend toward greater use of market-based mechanisms. C. Tougher Requirements for Obtaining New Water Use Permits Because new water withdrawals would further deplete mainstem flows in the critical July-August period and thus increase risks to salmon, NAS indicated that it did not favor new permits from the Columbia River. At least three of Ecology's proposed water management scenarios did contemplate new withdrawals, however, so the Report addresses permitting issues in some detail. One of the Report's more significant comments on permitting is the following: A key problem in managing the basin's water is that water permitting decisions are currently made in a piecemeal fashion, with little to no consideration of their effects on other users or their degree of consistency with other decisions across the basin. If water resources and risks to salmon survival are to be better managed, Columbia River water permitting decisions must be made in a more holistic fashion, with consideration of how additional diversions would affect other users and sectors across the entire river basin. (167) While this passage deals in part with the need for regional decision making on new water withdrawals, (168) it also makes a more fundamental point: Permitting decisions should consider the full range of effects that could result from new water withdrawals, including environmental impacts that may be felt both locally and regionally. Here again, this recommendation is inconsistent with the western states' traditional approach to water allocation. Much of western water law rests on a fundamental policy of maximum utilization of scarce water resources for human "beneficial uses." (169) States generally have followed this policy in making decisions on new water withdrawals, commonly issuing a requested permit unless no unappropriated water is deemed to be available for the new use. (170) In addition, states have been reluctant to stop issuing new permits despite great uncertainty about whether the water resource can sustain the authorized uses. (171) Washington's 1997 legislation lifting the moratorium on new Columbia River water withdrawals, (172) enacted despite ongoing concerns and uncertainty about flow requirements for salmon, exemplifies this "damn the torpedoes" approach to permitting. Even though the great majority of western states (including those in the Columbia Basin) have statutes requiring that the "public interest" be considered in permitting decisions, (173) the Report's recommendations on this topic nonetheless seem to call for significant change in state practices. First, while state laws call for consideration of public interest factors, it is not at all clear that the states actually give these factors much weight in deciding on permit applications. While it is hard to determine the actual importance that state agencies give public interest factors in permitting, it seems significant that few if any reported judicial decisions involve a state agency's denial of a permit (or even issuance of a permit with stringent conditions) in the exercise of its power to protect the public interest. (174) Second, assuming that state agencies do seriously consider the public interest in deciding on permits, existing laws probably limit each agency to weighing public interest factors relevant to its own state; Idaho's permitting statute is even narrower than that, providing for consideration only of the "local public interest." (175) By contrast, the Report recommends that agencies take a broader view of the public interest in permitting, considering the implications of new water withdrawals for the entire Columbia Basin. Instream flow programs, whereby states establish minimum flows in specific river reaches, (176) represent an additional means of safeguarding fish habitat from the impacts of new water withdrawals. The Columbia Basin states establish minimum instream flows for protection of fish habitat, (177) and in some areas these minimum flows have claimed the last available water in a river, effectively precluding any new withdrawals. (178) Thus, state instream flow programs can provide meaningful protection against new depletions, but this protection is limited to those streams where instream flows have been legally created and to the specific quantities of water set aside. By calling for full consideration of the risks associated with new depletions, however, the Report suggests that these existing state programs may not go far enough in protecting fish habitat. Under NAS's recommended approach, state permitting agencies should recognize the impacts of new depletions even on streams that do not have a legally established instream flow. Moreover, the agencies should recognize that existing minimum flow levels may be inadequate, and new depletions may pose important ecological risks even if they do not reduce flows below these existing levels. (179) Thus, the Report implies that states may need to go above and beyond their instream flow programs in order to protect fish habitat from impacts caused by new permits. Finally, the Report discourages the states from relying on "mitigation" measures to address the impacts of new water withdrawals on salmon. NAS specifically criticizes the idea of allowing new water withdrawals that would further deplete Columbia River flows in exchange for an annual payment of $10 to $30 per acre-foot, saying that these payments would likely cover only a fraction of the probable cost of acquiring replacement water. (180) More generally, the Report questions the effectiveness of mitigation measures, especially those that are not on-site and in kind, as a strategy for addressing the potential harms of new water withdrawals: Although the idea of "mitigating" impacts is attractive, the reality of most mitigation measures is that they are not well coordinated; that is, a management agency may attempt to offset harmful impacts of water withdrawals in one part of a river system with mitigation measures (e.g., ecosystem restoration) elsewhere. The ultimate outcomes of such varying actions, however, are difficult to accurately predict, measure, and compare (if indeed they are ever measured and meaningfully compared, which they often are not), thus making it difficult to determine if "mitigation" was actually achieved. (181) In the end, the Report acknowledges that permitting decisions are matters of public policy, and that new permits may be issued for Columbia River water withdrawals. (182) In making permitting decisions, however, the states should consider all the ecological risks and other impacts that may result from new water withdrawals, and ensure that mitigation measures effectively address those impacts. Such requirements would make new permits less certain and more expensive to obtain, leaving them a less attractive option for prospective water users. Of course, this result is fully consistent with the Report's suggestion that water conservation and markets, rather than new permits, should be the first option for satisfying new water demands in the Columbia Basin. (183) D. Greater Flexibility in Water Allocation and Management The Report emphasizes that Columbia Basin water managers face enormous uncertainty regarding future water supplies and demands, (184) while salmon populations (and those responsible for managing them) face even greater uncertainty. (185) It recommends that water managers respond to these uncertainties by employing an adaptive management strategy--that is, by taking incremental steps to generate new information and by maintaining the flexibility to make changes in response to such new information. (186) The Report concludes, however, that state water allocation and management under prior appropriation has been too rigid, (187) and that better flexibility in these areas is crucial: Water withdrawal applications and permitting decisions are highly contentious in both the State of Washington and other parts of the Columbia River basin. Inflexibilities in traditional western U.S. prior appropriation doctrine have contributed to these tensions. A greater degree of flexibility in traditional water permitting and rights processes is paramount to better water management and to decreasing tensions and conflicts in the basin. This report recommends implementation of a joint basin-wide water management forum and the pursuit of nontraditional water marketing and conservation strategies. A water permitting and rights process that more explicitly recognizes seasonality of flows should also be devised. Decisions regarding the granting of new water rights are issues of public policy, but additional water withdrawals during the critical high demand and low-flow periods discussed in this report will increase the risks of survival to listed salmon stocks. It will also decrease the flexibility of management institutions to allocate water between different uses in critical low-flow conditions. To increase the flexibility of water management organizations and programs and to better recognize uncertainties regarding future supplies and demands, a new permitting process should be created that allows for withdrawals to be discontinued during periods of low flow and periods of comparatively high water temperature. (188) The kind of flexibility the Report recommends is the exact opposite of what western water laws and water allocations seek to provide--maximum certainty for water users. Several basic elements of western water rights offer a high degree of security for water users: Water rights are private property rights (even though water is a public resource by law), they last forever provided they are regularly used, and they hardly ever contain any sort of "reopener" provision allowing the states to impose significant new restrictions for the purpose of protecting public values. (189) Although the bedrock principle of "beneficial use without waste" could be applied to cut back excessive water uses under existing rights, (190) a state's invoking this principle would create potential uncertainty for users--and that is surely a major reason why states have rarely used this authority. (191) Water right adjudications, proceedings which attempt to determine all existing water rights in a river basin, are unbelievably long and complex proceedings, but many western states are now pursuing them in an effort to ensure greater long-term certainty for their water users. (192) Secretary of the Interior Gale Norton has emphasized that western water law (and water users) value certainty above all else: If we yield to this temptation [to resolve water disputes based on politics or public opinion rather than established water law], we will destroy the one thing that everyone who needs water seeks the most--certainty and predictability about how it will be allocated in times of shortage. Without certainty, people cannot plan for their future. Without certainty, it will be far more difficult for market-based transfers to succeed. Without certainty, we will not be able to protect our environment. It is at these times that we must renew our commitment to resolving disputes and answering tough questions within the framework of enduring principles of law. (193) Thus, while NAS clearly recognizes that its call for flexibility would represent a significant change in the western states' traditional approach to water allocation, (194) in reality the Report calls for a truly fundamental shift. (195) The management scenarios proposed by Ecology would provide very little of the kind of flexibility recommended by NAS. These scenarios emphasize 1) the conversion of interruptible water fights to uninterruptible status and 2) the approval of permits for new water withdrawals, with certain provisions for water conservation and mitigation. (196) The scenarios make no provision for limiting these allocations to a certain period of years or for revising them at a later time based on new information or changed conditions. The scenarios did propose that Ecology revisit its Columbia River water management program in ten years and twenty years; NAS endorsed this idea, but noted that such a re-evaluation would be meaningful only if any aspect of the program could be reversed based on the reevaluation. "No evidence is provided of any such reversibility. Instead, the result will be decreasing reversibility by allowing for some interruptible water rights to become uninterruptible." (197) Thus, NAS correctly saw a basic conflict between maintaining flexibility to make changes needed to protect salmon, and providing certainty to water users through permanent, uninterruptible water rights. The simple premise of the NAS recommendations is that salmon should not bear all the risk associated with new water withdrawals in the Columbia Basin. Thus, the Report urges states to avoid permanent, fixed water allocations in favor of an adaptive management strategy: "Decisions and policies should promote flexibility while their outcomes are being evaluated and better understood." (198) NAS observed that water banks, water markets, and incentives for water conservation all "tend to support greater water management flexibility and merit careful consideration." (199) If new permits are issued, the Report recommends preserving flexibility by including specific conditions to allow withdrawals to be discontinued during critical periods. (200) The NAS Report did not mention some other permit conditions that could improve flexibility, such as reopener clauses (allowing a change in permit terms based on some future contingency) or time limitations (requiring the applicant to apply for renewal after a certain number of years). (201) Some people might read this NAS recommendation as giving certainty to salmon and shifting all the risk to water users, but that interpretation seems unrealistic. In theory, adaptive management has been a key principle of Columbia Basin salmon recovery efforts since 1984. (202) In practice, the agencies overseeing these efforts have generally been quite cautious, avoiding initiatives that would fundamentally change resource allocation and use to the detriment of key industries. (203) If state agencies commit to the principle of adaptive management of Columbia Basin water resources--a big "if"--they could implement it only by taking actions opposed by water users and their allies. (204) Water use interests remain powerfully influential in every western state, as demonstrated by the 1997 Washington statute lifting the Columbia River permitting moratorium. Adaptive management will work in this context only if politics allows it to work, (205) and that, too, is a big "if." With its recommendations for a joint Columbia Basin water forum, water markets and conservation as the first option to supply water for new uses, tougher requirements to obtain new permits, and greater flexibility in water allocation and management, the Report clearly has major water policy implications. It remains to be seen, however, whether the Report will actually bring about water policy changes in Washington or anywhere else. The concluding section of this Article addresses this question. V. CONCLUSION: CAN SCIENCE REALLY CHANGE WATER POLICY IN THE WEST? One of the most notable features of water policy in the West is its resistance to major changes. (206) Because NAS recommends significant changes in the western states' usual approach to water allocation and management--the kind of changes that many states have at best been slow to adopt--one must ask whether the Report is likely to have any significant water policy impact. The Report is most directly relevant to Washington, of course, the state that requested the NAS study. Because the Report was not released until March 31, 2004, it was too early as of this writing to determine how it might affect Washington's management of the Columbia. On the other hand, the reaction of key stakeholder groups has been both unmistakable and unsurprising: environmental groups love it, (207) while agricultural interests hate it. (208) One irrigation group told state officials that their characterization of the Report's findings regarding the risk to salmon from new July-August water withdrawals "reflects a fanatical desire to support a 'no net loss' water policy, an extraordinarily ill-founded basis for your 'water bank' proposal." (209) The agricultural community's harsh criticism of the Report shows how difficult it is to resolve contentious water issues through science, or even to gain acceptance of a National Academy of Sciences study by those who oppose its conclusions. (210) Ecology's initial response to the Report came in the form of a discussion proposal unveiled on April 30, 2004. Ecology identified two major goals, "[m]eet the water supply needs" and "[r]educe risks to fish," requiring 500,000 to 750,000 acre-feet per year in the period from April through September; one-third of this water would be allocated instream for salmon, and two-thirds offstream for human consumptive uses. (211) To provide this water, Ecology proposed a state-sponsored water bank, with water made available from conservation measures, storage projects (existing and new), and water right acquisitions. Funding would come from a mix of state and private sources, including fees for new water users. (212) Six months later, Ecology produced both a draft administrative rule (213) and a draft bill (214) regarding Columbia River water management. These draft documents, like the initial proposal, call for Ecology to acquire water for the Columbia mainstem from a variety of sources, to allocate two thirds of this water for consumptive uses and one third for instream flows, and to use both public and private money to fund these acquisitions. (215) Thus, the agency proposed a program that is consistent with the NAS recommendations favoring conservation and markets over new permits, although the proposal ignores the recommendation for regional review of permits and is somewhat contrary to NAS's call for greater flexibility in water allocation and management. (216) As of early 2005, Ecology's plans were to accept comments on the proposal through May 12 and adopt a final rule in June 2005. (217) Will the Report directly affect water policy in states beyond Washington? That seems unlikely, at least for now. The Report focuses specifically on the Columbia, especially the Columbia mainstem, so its findings and recommendations are most relevant for Idaho and Oregon, the two states (other than Washington) that lie predominantly within the Columbia Basin. These states have already established rules that seriously restrict the issuance of new permits in the Columbia River system, (218) so they may believe that their policies are already consistent with the Report. (219) Moreover, there has been no significant push to establish the kind of joint Columbia River water forum recommended in the Report. This situation could change if one of the Columbia Basin states begins to authorize major new water withdrawals; such action would cause would-be water users elsewhere in the Basin to turn up the pressure on their own state governments to ease restrictions on new water allocations from the Columbia and its tributaries. Thus, if one state begins to issue new Columbia permits (despite the opposition of environmental groups and other salmon advocates), others may well follow suit. At that point each state could be expected to face questions on whether its water policies were truly consistent with the NAS recommendations, and the proposal for a regional water forum may seem more ripe for discussion. Thus, if the floodgates--or more aptly, the headgates--open on major new Columbia River water withdrawals, the Report and its recommendations may gain added significance throughout the Pacific Northwest. Western states outside the Columbia Basin might dismiss the Report as irrelevant; every river system is unique and every species has its own biological requirements, so the science of water and salmon in the Columbia does not translate directly to other places. (220) Moreover, most western states might disregard any study of the Columbia because they see it as a bigger river--with bigger ESA issues--than may be found in the more and parts of the West. While the Columbia certainly has more water than other western rivers, it shares many of their common characteristics: Its natural flow patterns have been dramatically altered by human development; its waters have been extensively allocated for offstream uses, primarily irrigation; its management is shared by numerous state, federal, and tribal entities; it provides habitat for fish and wildlife species protected by the ESA; and it faces new demands for water for municipal, agricultural, and other uses. In these respects the Columbia is a classic western river, only bigger. And given NAS's finding that new water withdrawals would raise significant ecological concerns on the mighty Columbia, it might well identify equal or greater concerns on smaller rivers that provide habitat for rare fish or wildlife species--if, of course, it was asked to study the issue. Given that many states in the West would resist implementing the kind of recommendations that NAS made for the Columbia, the states might be reluctant to make such a request. To the extent that the NAS findings and recommendations are meaningful beyond Washington, might they indirectly affect water policy in other states? In other words, if other states regarded the Columbia River report as "good science" relevant to their own water resource issues, might they consider adopting its recommendations regarding water management in interstate river systems, water markets and conservation, requirements for new permits, and flexibility in water allocation and management? The most realistic answer seems to be no, given the western states' evident lack of interest in significant water law reform since at least the 1980s. (221) On the other hand, there are at least three reasons to believe that some western states might be open and responsive to this type of scientific input in making decisions on water allocation and management. First, there is now an important precedent: Washington asked NAS for a study of its water management options on the Columbia--a remarkable step by a western state. Just as significantly, Ecology responded to the study with a proposal that was largely consistent with the NAS recommendations. It is certainly true that Washington is just one state, that its water policy is in some respects more progressive than that of other western states, (222) and that its Columbia River management policy is still a work in progress which ultimately may not follow the recommendations. (223) On the other hand, Washington is a fast-growing western state with a powerful agricultural community and a water code based on prior appropriation. If science can have a real water-policy impact in Washington, it potentially can do so elsewhere. Second, the western states have repeatedly supported the use of science, and of adaptive management principles, in managing their natural resources. For example, the Western Governors' Association has espoused a set of principles for environmental management and decision making, one of which advocates the use of "a range of respected scientists and peer-reviewed science" to help establish basic facts and determine key areas of uncertainty. (224) More directly relevant are the "Park City Principles," developed under the leadership of the Western Governors' Association and the Western States Water Council to guide future water resources decision making in the West. (225) One of these principles states that water policies must be able to adapt to changing conditions, needs, and values; accommodate complexity; and allow managers to act in the face of uncertainty. This principle recognizes the complex implications of the holistic approach to water management. Policies, and the managers who implement them, must provide flexibility to adjust as needed while ensuring predictability for those involved in and affected by water decisions. As decisions become more complicated, managers may want better and more certain information and guidelines. That will not always be possible, and the system must recognize and allow managers to act in the face of uncertainty. (226) While not mentioning science per se, this principle is generally consistent with the Report's endorsement of an adaptive management strategy for water resources that recognizes the need to make decisions despite uncertainty and relies on science to test hypotheses and inform decision makers. Thus, at least in concept, "good science" is a key part of the western states' vision of good resource management. Third, science is just one of many factors that are nudging the western states toward changes in their standard approach to water allocation and management. The other factors include the increase in species listed under and protected by the ESA; the enormous population growth under way across the West; the ongoing economic transition, as agriculture and other traditional industries account for an ever-smaller slice of the region's economic pie; and the growing demand for environmental and recreational amenities, many of which rely on an adequate supply of water. (227) None of these factors is primarily scientific in nature, but they all have exerted some pressure on the states to revise their water policies and practices, often (though not always) in ways that are consistent with the NAS recommendations. (228) Thus, while science by itself is not powerful enough to bring about water policy reform at the state level, it may add some important influence to the nonscientific forces that create pressure for such reform in the West. How would a state allocate water based on the NAS recommendations for good management? It would engage other states and other governmental entities, including tribes and federal agencies, in making decisions about new water withdrawals. It would look to existing water rights to provide the necessary supply for new uses through a combination of conservation projects and market-based transfers. It would consider potential impacts and risks to a range of public values, beyond the prospective economic benefits, in making decisions on new permits. And if new permits were issued, they would provide flexibility to make meaningful changes in the future as necessary to respond to changed conditions or new information. Such proposals are certainly not new. Similar ideas have appeared in various water policy prescriptions over the past several years, such as the Park City Principles, (229) the report of the Western Water Policy Review Advisory Commission, (230) the report of the Longs Peak Working Group, (231) and most recently the Interior Department's Water 2025. (232) In general, such recommendations for water policy reform have had only minor practical effects on water policy in the western states. With the new Report, however, the recommendations have now been grounded in extensive scientific studies and delivered by an objective and highly credible scientific source. In a policy arena where conflicting values often result in gridlock, that scientific credibility should count for something. Of course, unlike the United States Supreme Court, NAS does not get the final word in matters of law. Nonetheless, "the Supreme Court of Science" speaks with a strong and authoritative voice, and its Columbia River Report may thus have a significant influence on water policy in Washington and beyond. (1) Donald Worster wrote, "What those northern rivers, the Missouri and Columbia, were still struggling toward, the Colorado had become--a part of nature that had died and been reborn as money." DONALD WORSTER, RIVERS OF EMPIRE 276 (1985). (2) NORTHWEST POWER PLANNING COUNCIL, RETURN TO THE RIVER (2000), available at http://www.nwppc.org/library/return/ch1.pdf. (3) Speaking of the Columbia and Klamath Basins, then-Oregon Governor John Kitzhaber stated, The tragedy in the tale of these two watersheds is not that we exploited them. We exploited much of the West, yet when we began doing so, it could not rightly be called exploitation--because the bounty seemed without limit. And to be sure there were tangible benefits to the region. No, the tragedy lies not so much in our past actions, but rather with our refusal to modify and mitigate them in the face of growing evidence of their cost to our natural environment. Governor John Kitzhaber, A Tale of Two Rivers at the Address at the National Conference of Trout Unlimited (Aug. 16, 2000), http://arcweb.sos.state.or.us/governors /Kitzhaber/web-pages/governor/speeches/s010816.htm. (4) An acre-foot is the quantity of water that will cover an acre of land 12 inches deep--roughly 326,000 gallons. (5) NAT'L RESEARCH COUNCIL, MANAGING THE COLUMBIA RIVER: INSTREAM FLOWS, WATER WITHDRAWALS, AND SALMON SURVIVAL 2 (2004) [hereinafter MANAGING THE COLUMBIA RIVER], available at http://books.nap.edu/books/0309091551/html. (6) Recent statements by agricultural and environmental interests reflect these points of view. The Washington State Farm Bureau, arguing in support of new water withdrawals from the Columbia, wrote that the impact of current water withdrawals from the River cannot be measured "because the volume of the river is so large. After all, the Columbia River is the largest river flowing to the largest ocean in the world. Less than two percent of the Columbia River is consumed by all out-of-stream uses, around 16.7 percent evaporates, and about 81 percent flows to the ocean." Letter from Dan Wood, Washington State Farm Bureau, to Gerry O'Keefe, Washington State Department of Ecology (June 23, 2004) (on file with author). By contrast, the environmental group American Rivers maintained that new water withdrawals from the Columbia in the summer would harm salmon: "Keeping enough water in the river during the summer months is critical to protecting Columbia and Snake River salmon and steelhead that migrate at that time of the year. We are kidding ourselves if we think we can keep draining the Columbia River during the summer and recover wild salmon and steelhead." Press Release, American Rivers, Stop Additional Water Withdrawals During Summer Months to Protect Salmon, National Science Panel Concludes, (Mar. 31, 2004), http://www.amrivers.org/index.php?module=HyperContent& func=display&cid=2741. (7) As stated in the document laying out the scope of the National Academy of Sciences study,
There are hundreds of pending applications for new water rights
from the Columbia; and there is disagreement between agencies
and others on the streamflows that are needed to support salmon
and their habitat. The lack of a common understanding of instream
flow requirements for salmon and how these affect out-of-stream
uses is at the heart of the debate.
As a result, stakeholders are broadly divided into two camps:
those interested in preserving and enhancing the quantity of water
available to increase streamflows to support salmon recovery, and
those who share an interest in accessing water for out-of-stream
uses. Scientific work in the region has often been tainted by
charges of value-laden and biased conclusions. Middle ground in the
Columbia basin water debate is submerged by strongly held viewpoints
on either side of the issue.
NAT'L ACAD. OF SCIENCES/NAT'L RESEARCH COUNCIL, EXHIBIT B-SCOPE OF WORK AND BUDGET (n.d.), available at http://www.ecy.wa.gov/programs/wr/cri/Images/PDF/NASRCbgt.pdf. (8) The State of Washington contracted with NAS to perform the study, with a total budget of $488,000. Id at 5. (9) For example, when the United States Environmental Protection Agency and the Department of Defense disagreed over the health effects of the chemical perchlorate, an Air Force official stated, "IT]he best thing to do is take it to the NAS--the Supreme Court of science." Academy to Mediate Debate Over Rocket-Fuel Contaminants, 299 SCIENCE 1829 (2003). (10) The 2002 NAS Klamath report was only a draft, but it paved the way for the U.S. Department of the Interior to establish a new 10-year operations plan for the Bureau of Reclamation's Klamath Project that was favorable to irrigators. Holly Doremus & A. Dan Tarlock, Fish, Farms, and the Clash of Cultures in the Klamath Basin, 30 ECOLOGY L.Q. 279, 324-28 (2003). Other river basins where NAS has studied the environmental effects of water management include the Missouri, see NAT'L RESEARCH COUNCIL, THE MISSOURI RIVER ECOSYSTEM: EXPLORING THE PROSPECTS FOR RECOVERY (2002), available at http://www.nap.edu/books/0309083141/html, and the Platte, see NAT'L RESEARCH COUNCIL, ENDANGERED AND THREATENED SPECIES OF THE PLATTE RIVER (2004), available at http://www.nap.edu/books/0309092302/html. (11) The NAS website describes its responsibility as "advising the federal government, upon request and without fee, on questions of science and technology." Nat'l Acads., About the National Academies--The Associated Organizations, at http://www.nationalacademies.org/about/faq2.html (last visited Feb. 20, 2005). (12) MANAGING THE COLUMBIA RIVER, supra note 5, at ii. (13) See infra Part III.D. (14) "Good science," which has become a common term in matters of environmental policy and natural resources management, requires some explanation. When I use the term "good science" in this Article, I mean scientific studies or opinions that are sufficiently credible to provide a sound basis for government decision making, even though they do not offer absolute certainty. See Holly Doremus, Purposes, Effects, and Future of the Endangered Species Act's Best Available Science Mandate, 34 ENVTL. L. 397, 414-17 (2004) (discussing utilization of and debate over "sound science" in administrative regulation). (15) According to Columbia River water expert John Volkman, certain events in the mid-1990s brought increased scrutiny of the impact of irrigation withdrawals on Columbia River flows. Until that time, "by far the primary culprit in the mainstem was the dams. No doubt they will remain the primary culprit, but not by so large a margin. For the first time, data seem to point to irrigation diversions as a significant contributor to the Columbia's streamflow problems." JOHN M. VOLKMAN, A RIVER IN COMMON: THE COLUMBIA RIVER, THE SALMON ECOSYSTEM, AND WATER POLICY 110 (1997) [hereinafter A RIVER IN COMMON], available at http://www.waterwest.org/reading/readingfiles/fedreportfiles/columbia.pdf (citations omitted). (16) LUNA B. LEOPOLD, A VIEW OF THE RIVER 99 (1994). By this measure, the Columbia is the eighteenth largest river in the world. Id. (17) Id at 101. (18) TIM PALMER, THE SNAKE RIVER: WINDOW TO THE WEST 5 (1991). (19) LEOPOLD, supra note 16, at 99. (20) The Columbia River of the early 1800s has been described as "'a cataract of wildly seasonal flows, impassable falls and rapids, deep canyons, desolate desert terrain, and Canadian mountains with incredible winter snows.' With immense rapids and a vagrant course, the River was described by one early navigator as 'undoubtedly the most dangerous river on the western side of the American hemisphere.'" Mary Christina Wood, Reclaiming the Natural Rivers: The Endangered Species Act as Applied to Endangered River Ecosystems, 40 ARIZ. L. REV. 197, 204 (1998) (citations omitted). (21) MANAGING THE COLUMBIA RIVER, supra note 5, at 1. (22) A 1995 federal report noted that about 5 million people live in the Columbia Basin portions of Washington, Oregon, and Idaho. A RIVER IN COMMON, supra note 15, at 14. The largest metropolitan area in the Pacific Northwest, the Seattle-Tacoma area, is outside of the Columbia Basin. Today, the three states of Idaho, Oregon, and Washington still have "only" 10.6 million people, even though all three grew by more than 20% in the 1990s alone. U.S. CENSUS BUREAU, POPULATION CHANGE AND DISTRIBUTION 1990 TO 2000, at 2 (2001), available at http://www.census.gov/prod/2001pubs/e2kbr01-2.pdf. (23) A RIVER IN COMMON, supra note 15, at 14. (24) United States v. Winans, 198 U.S. 371,381 (1905). (25) The first Columbia River salmon cannery was established in 1866. By 1883, there were 55 canneries along the lower Columbia. WILLIAM G. ROBBINS, Political and Economic Culture, 1870-1920." New Salmon Markets, in THIS LAND---OREGON, at http://www.ohs.org/education/ oregonhistory/narratives/subtopic.cfm?subtopic_ID=53 (last visited Feb. 20, 2005). (26) "Even before federal reclamation development, the Basin's salmon rivers were degraded.... In the summer of 1906, [Yakima River] flows had dropped from an average of 3900 to 105 cubic feet per second.... [I]rrigation diversions eliminated populations in the lower reaches of many tributaries like the Boise, John Day, Umatilla and Walla Walla." A RIVER IN COMMON, supra note 15, at 55. Irrigation diversions had essentially dried up the Walla Walla River at the Washington-Oregon state line by the turn of the 20th century. See Washington v. Oregon, 297 U.S. 517, 522 (1936) (discussing Oregon's 50-year practice of irrigation by using "crude or temporary dams across the Walla Walla River"). (27) Act of June 17, 1902, ch. 1093, 32 Stat. 388 (codified as amended at 43 U.S.C. [subsection] 372, 373, 381, 391,392, 411,414, 419, 421, 431,432,434, 439, 461,491,498, 1457 (2000)). (28) Pacific Northwest Region, U.S. Bureau of Reclamation, Learn About Recitation Projects in the Pacific Northwest at http://www.usbr.gov/prdproject/index.html (last visited Feb. 20, 2005). In Reclamation's Pacific Northwest Region today, there are a total of 39 projects, with 72 dams, dikes, and diversions and 4700 miles of canals, irrigating about 2.9 million acres. Id (29) Pacific Northwest Region, U.S. Bureau of Reclamation, The Story of The Owyhee Project, at http://www.usbr.gov/pn/project/owyhee_index.html (last visited Feb. 20, 2005). (30) MANAGING THE COLUMBIA RIVER, supra note 5, at 36-45. (31) Id. at 46-48. (32) The United States Geological Survey (USGS) estimated that irrigation accounted for 80% of offstream water withdrawals in the Pacific Northwest in 1995; the next biggest use, public water supply, accounted for only 6%. Because this figure includes the Seattle-Tacoma metropolitan area around Puget Sound, however, even this percentage overstates the amount of water used for public water supply in the Columbia Basin. WAYNE B. SOLLEY ET AL., U.S. GEOLOGICAL SURVEY, ESTIMATED USE OF WATER IN THE UNITED STATES IN 1995, at 7, 10 (1998). The latest such report from USGS does not contain similar figures for regional water use by category. See SUSAN S. HUTSON ET AL., U.S. GEOLOGICAL SURVEY, ESTIMATED USE OF WATER IN THE UNITED STATES IN 2000 (2004). (33) As of 2000, public water supply accounted for 14.5% of water withdrawals in Washington and 7.5% of withdrawals in Oregon, but less than 1% of withdrawals in Idaho. HUTSON ET AL., supra note 32, at 8. (34) Northwest Power and Conservation Council, How Much Northwest Energy Comes from Hydropower?, at http://www.nwppc.org/energy/powersupply/source.htm (last visited Feb. 20, 2005). (35) "The development of Grand Coulee, Hells Canyon, Dworshak [in Idaho's Clearwater River system] and other projects blocked an estimated 18,700 miles of historically accessible streams in the United States portion of the Basin alone, almost 38 percent of the historic 49,300 mile range." A RIVER IN COMMON, supra note 15, at 58 (citation omitted). (36) Id. at 60 (citations omitted). (37) Anadromous fish are those which spawn in fresh water but spend much of their lives in the ocean. (38) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). As of 2004, 26 different populations of West Coast salmon and steelhead were listed as endangered or threatened, although several of these populations were outside the Columbia Basin. NOAA FISHERIES, ENDANGERED SPECIES ACT STATUS OF WEST COAST SALMON AND STEELHEAD (June 17, 2004), available at http://www.nwr.noaa.gov/1salmon/salmesa/pubs/1pgr.pdf. (39) See Michael C. Blumm, Reexamining the Parity Promise: More Challenges than Successes to the Implementation of the Columbia Basin Fish and Wildlife Program, 16 ENVTL. L. 461, 468-(69) (1986) (describing the Council's formation and responsibilities). (40) When the Northwest Power Planning Council adopted its first FIsh & Wildlife Program in 1982, [t]he most significant element of the program was the Water Budget, a block of about four-and-a-haft million acre-feet of water, designed to facilitate downstream anadromous fish migration in the spring. Essentially, the Water Budget is designed to augment flows to simulate the lost spring freshet, now largely stored behind the Basin's dams for hydroelectric and other purposes. Water Budget flows come from water that would otherwise be saved to generate electricity later in the year. The program gave control over the use of this water to representatives of the region's fish and wildlife agencies and Indian tribes. Id. at 469-70 (citations omitted). (41) For an explanation of this program and its results in the early- to mid-1990s, see A RIVER IN COMMON, supra note 15, at 92-94. (42) The National Marine Fisheries Service, now called NOAA Fisheries, has called for biweekly average flows at the following levels: * Snake River (at Lower Granite Dam), April 3 to June 20: 85,000-100,000 cfs * Columbia River (at McNary Dam), April 10 to June 30: 220,000-260,000 cfs * Snake River (at Lower Granite Dam), June 21 to August 31: 50,000-55,000 cfs * Columbia River (at McNary Dam), July 1 to August 31: 200,000 cfs NAT'L MARINE FISHERIES SERV., BIOLOGICAL OPINION, REINITIATION OF CONSULTATION ON OPERATION OF THE FEDERAL COLUMBIA RIVER POWER SYSTEM, INCLUDING THE JUVENILE FISH TRANSPORTATION PROGRAM, AND 19 BUREAU OF RECLAMATION PROJECTS IN THE COLUMBIA BASIN 9-56 (2000), available at http://www.nwr.noaa.gov/1hydrop/hydroweb/docs/Final/chap9_2.pdf. (43) According to a federal study of the effects of water withdrawals on Columbia River flows, But for irrigation withdrawals, summer streamflow objectives would be met seventy-four percent (74%) of the time, compared to twenty-six percent (26%) under the [biological opinion for the Federal Columbia River Power System]. For the lowest eight streamflow years [of fifty years studied], summer streamflow objectives are missed by an average [90,000 cfs]; irrigation withdrawals account for two-thirds of the total shortfall. NAT'L MARINE FISHERIES SERV., BIOLOGICAL OPINION, INLAND LAND, INC., COLUMBIA RIVER 9 (1997) [hereinafter INLAND LAND BIOP], available at http://www.nwr.noaa.gov/1publcat/bo/1997 /199600130_inland_pumping_05-16-1997.pdf. (44) See generally California v. United States, 438 U.S. 645, 653-70 (1978) (reviewing examples of congressional intent to defer to state water laws, especially in the context of the Reclamation program). Professor Getches, however, has called federal deference to state water laws a "time-honored myth," because this deference has never been so absolute or so universal as its proponents have claimed. See David H. Getches, The Metamorphosis of Western Water Policy: Have Federal Laws and Local Decisions Eclipsed the States' Role?, 20 STAN. ENVTL. L.J. 3, 7-8, 24 (2001). (45) MICHAEL A. SCHOESSLER ET AL., A SURVEY OF COLUMBIA RIVER BASIN WATER LAW INSTITUTIONS AND POLICIES, at vii (1997), available at http://www.waterwest.org/reading/readingfiles/fedreportfiles/col2.pdf. (46) Id. In addition, since many Columbia Basin fish species are now listed as threatened or endangered, the federal ESA applies to water management activities in the Basin. See 16 U.S.C. [section] 1536 (2000). (47) Allocation of water from federal (Bureau of Reclamation) water projects is not left entirely to the states, however. Although these projects require water rights issued under state law, and states thus have some authority over these projects, Reclamation has considerable control over who uses water from its projects and how such water may be used. See Reed D. Benson, Whose Water Is It? Private Rights and Public Authority over Reclamation Project Water, 16 VA. ENVTL. L.J. 363, 408-26 (1997). (48) Unlike some other interstate fiver basins in the U.S., the states of the Columbia Basin have not established a "compact" allocating the waters of the Basin or establishing institutions to address interstate water issues. Efforts in the 1950s and 1960s to develop a Columbia River Compact ultimately failed when Washington failed to ratify a proposed agreement. A RIVER IN COMMON, supra note 15, at 44-47. (49) See generally SCHOESSLER ET AL., supra note 45, at 199-288 (discussing the water allocation systems of the four states). (50) See generally JOSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES 98-100 (3rd ed. 2000) (discussing basic elements of the prior appropriation doctrine). (51) If a water right goes unused for several consecutive years, it may be subject to loss through forfeiture, or through abandonment if the nonuse is coupled with intent to give up the right. See Janet C. Neuman, Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency in Western Water Use, 28 ENVTL. L. 919, 928-33 (1998) (tracing case law creating a uniform rule that nonuse of all or part of a water right constitutes lack of beneficial use). Thus, even though a water right under prior appropriation may last forever, it may he terminated for lack of use. This aspect of the doctrine is commonly referred to as "use it or lose it." (52) This priority aspect of the doctrine is commonly referred to as "first in time, first in right." (53) In Washington, the relevant state agency is Ecology, see WASH. REV. CODE [section] 43.21A.064 (1998), and it makes permitting decisions regarding proposed new uses of surface water as provided in id. [section] 90.03.290. (54) See, e.g., Id. [section] 90.03.290(3) (requiring that Ecology approve a requested permit "if it shall find that there is water available for appropriation for a beneficial use, and the appropriation thereof as proposed in the application will not impair existing rights or be detrimental to the public welfare"). (55) Cynthia F. Covell, A Survey of State Instream Flow Programs in the Western United States, 1 U. DENV. WATER L. REV. 177, 178-79 (1998). (56) Id. at 180-82. (57) Id. at 180-88. (58) Washington set minimum flows for five different locations on the Columbia for 17 different time periods during the year. WASH. ADMIN. CODE [section] 173-563-040 (2003). These flow protections are in the form of an administrative rule, but they function like a water right in that they do not protect these minimum flows against "senior" water rights which were in place prior to the rule's 1980 adoption. Id. [section] 173-563-020(3). (59) In low flow years, however, Ecology could reduce the minimum flows by up to 25%, subject to certain restrictions. WASH. ADMIN. CODE [subsection] 173-563-050 (2003). (60) See Janet C. Neuman, Drought Proofing Water Law, 7 U. DENV. WATER L. REV. 92, 108 (2003) (noting that in 2001, "the State bent over backwards to avoid cutting off the interruptible rights"). (61) Another factor that prompted the states to impose the moratoria was a call from the Northwest Power Planning Council to stop issuing water permits that could further deplete salmon flows. A RIVER IN COMMON, supra note 15, at 86-89. For a full explanation of these moratoria and their background, see Joy Ellis, Drafting from an Overdrawn Account: Continuing Water Diversions from the Mainstem Columbia and Snake Rivers, 26 ENVTL. L. 299 (1996). (62) Unlike Idaho, which imposed a moratorium on issuing new permits even if they were applied for before the ESA salmon listings, Oregon imposed a seasonal restriction on new diversions for which applications were filed after the listings. Washington's moratorium also applied only to applications filed after the listings, and only to the mainstems of the Columbia and Snake rivers. Oregon and Washington both had substantial backlogs of diversion applications, so the moratoria were not expected to cut off all new diversions right away. A RIVER IN COMMON, supra note 15, at 89-90. (63) See Ellis, supra note 61, at 303 (discussing irrigation uses of Columbia River water to produce alfalfa, apples, corn, grapes, peas, potatoes, wheat, and other crops). (64) Letter from Hon. Gary Locke, Governor of Washington, to Hon. Philip E. Batt, Governor of Idaho (May 19, 1997), quoted in A RIVER IN COMMON, supra note 15, at 108. The statute, House Bill 1110 (1997), is found at ch. 439, 1997 Wash. Laws. See Washington State Legislature, History of HB 1110, at http://www.leg.wa.gov/pub/billinfo/1997-98/house/1100-1124/1110_history.txt (last visited Feb. 20, 2005). (65) The NAS Report characterizes this proposal as follows:
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.... 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 [as envisioned by
Ecology] encourage more efficient use and application of water.
Apparently, these more efficient rights would be satisfied before
legally senior water rights.... [However,] it is unclear how
uninterruptible rights could be immunized from other uses and
demands on the river unless base flows for salmon are diminished.
MANAGING THE COLUMBIA RIVER, supra note 5, at 139. (66) Id. at 138. (67) It appears that Ecology may regard converting these junior rights to uninterruptible status as the top priority for the Columbia, even higher than issuing new permits. When Ecology proposed its five "management scenarios" to NAS, all but the "no action" scenario proposed making the post-1980 rights uninterruptible in return for certain commitments from the users. One of the four action scenarios, however, involved no new Columbia River permits. See id. at 223-28 (outlining the five "management scenarios"). Thus, Ecology was willing to propose closing the Basin to new permits, but not leaving the existing junior users in interruptible status. (68) The proposed irrigation project was known as "Inland Lands," and the National Marine Fisheries Service issued a jeopardy opinion after consulting under ESA [section] 7 on a Clean Water Act permit for the project. INLAND LAND BIOP, supra note 43, at 14-15; see also A RIVER IN COMMON, supra note 15, at 108-09 (explaining the National Marine Fisheries Service's consultation with Bureau of Reclamation). John Volkman aptly wrote, "Indeed, the gulf between the Inland Lands opinion and the Washington legislature's suspension of its water diversion moratorium is so wide that it is hard to imagine it being bridgeable." Id. at 109-10. (69) The National Research Council and The National Academy of Sciences Advise Washington State on Managing the Columbia River, 8 W. WATER L. & POL'Y REP. 189 (2004). (70) Wash. Dep't of Ecology, Columbia River Initiative, at http://www.ecy.wa.gov/programs/wr/cri/crihome.html (last visited Feb. 20, 2005). (71) GERRY O'KEEFE, WASH. DEP'T OF ECOLOGY, STATE ENVIRONMENTAL POLICY ACT NON-PROJECT REVIEW FORM 2 (2003), available at http://www.ecy.wa.gov/programs/wr/cri/Images/PDF/npsepafinal110703.pdf. (72) COMM. ON TOXICOLOGY, NAT'L RESEARCH COUNCIL, THE FIRST 50 YEARS 1947-1997, at 3 (1997), available at http://books.nap.edu/books/NI000230/html/index.html. (73) Nat'l Acads., About the National Academies--The National Research Council, at http://www.nationalacademies.org/about/faq3.html (last visited Feb. 20, 2005). The NRC is jointly administered by the NAS, the National Academy of Engineering, and the Institute of Medicine. Id. (74) Id. (75) Nat'l Acads., About the National Academies The National Research Council Process, at http://www.nationalacademies.org/about/faq4.html (last visited Feb. 20, 2005). (76) Although it may be more technically correct to attribute the Report to the National Research Council, or to the Water Science and Technology Board, this Article attributes the Report to NAS, largely because Ecology itself generally refers to the Report as being the work of the National Academy of Sciences. See, e.g., Wash. Dep't of Ecology, Columbia River Initiative, at http://www.ecy.wa.gov/programs/wr/cri/crihome.html (last visited Feb. 20, 2005). (77) MANAGING THE COLUMBIA RIVER, supra note 5, at 238. (78) Id. at 238-42. (79) Id. at 242. (80) Id. at ix. (81) Id. at x-xi. (82) NAT'L RESEARCH COUNCIL, MANAGING THE COLUMBIA RIVER: INSTREAM FLOWS, WATER WITHDRAWALS, AND SALMON SURVIVAL, at front cover (Prepublication Copy for Release March 31, 2004), available at http://www.ecy.wa.gov/programs/wr/cri/Images/PDF/nascrivrpt.pdf. It is perhaps worth noting that the wording of the final report is not exactly the same is the prepublication version; the earlier report stated, "Although the substance of the report is final, editorial changes may be made prior to publication." Id. Also, the page numbers in the prepublication copy do not match those in the final (hardcover) report; the latter version ends with page 246 (including appendices), while the former version ends on page 159. (83) The "Statement of Task" for the Columbia River study was as follows: The committee will assess the risks to salmonids at critical stages in their life cycles under a range of different Columbia River water management scenarios--including diversions for hydropower and other purposes--under both historical and present hydrological conditions. The study will: 1. Work with a science advisory panel (to be appointed by the Washington Department of Ecology) to gather information necessary to accomplish tasks 3 and 4, from the scientific community with direct experience in the Columbia River Basin, to include holding a workshop in Eastern Washington State. 2. Review and evaluate existing scientific data and analyses related to fish species listed under the Endangered Species Act in the Columbia River basin, as necessary to accomplish tasks 3 and 4. 3. Review and evaluate parameters critical to the survival and recovery of listed fish species as they relate to the hydrology of the Columbia River system in the context of the continued operation of the Federal Columbia River power system and other mainstem power generation facilities. This will include instream flows sufficient for fish and wildlife as well as the potential effects of decreased natural storage capacity on river hydrology. 4. In light of existing withdrawals, describe the risks to salmonid survival of a range of water withdrawals, and the cumulative effects of other factors, during critical times of the salmon life cycle. (Note: the State of Washington Department of Ecology suggests an appropriate range of water withdrawals to consider is 250,000 acre-feet to 1,300,000 acre-feet). 5. Evaluate the effects of proposed management criteria, specific diversion quantities, and features of potential water management alternatives (such management information will be provided by the State of Washington). 6. Identify gaps in the knowledge and scientific information that are needed to develop comprehensive strategies for recovering and sustaining listed species and managing water resources to meet human needs. MANAGING THE COLUMBIA RIVER, supra note 5, at 24. (84) Id. at viii. (85) Id. at 10. (86) Id. at 224-25. (87) Id. at 226. (88) Id. at 226-27. (89) Id. at 227. (90) Id. at 228. (91) Id. In a consultation under the Endangered Species Act in the late 1990s, the National Marine Fisheries Service (NMFS) took the position that a significant new water withdrawal from the Columbia mainstem would have unacceptable adverse effects on salmon, largely because flows in the River were already falling below levels established to protect salmon. NMFS proposed to approve a federal permit for the project only if the flow impacts of the new withdrawals were fully offset, resulting in "no net loss" of Columbia mainstem flows. INLAND LAND BIOP, supra note 43, at 15. The substantive result of that consultation--"bucket for bucket" replacement of new depletions--was similar to that described in Ecology's Scenario 4 although the ad hoc determination of mitigation followed the process described in Scenario 5. (92) NAS's "Statement of Task" includes the following charge: "In light of existing withdrawals, describe the risks to salmonid survival of a range of water withdrawals, and the cumulative effects of other factors, during critical times of the salmon life cycle." MANAGING THE COLUMBIA RIVER, supra note 5, at 24 (emphasis added). (93) Id. at 15-174. (94) Id. at 42-70. (95) Id. at 44-45. This total includes federal and nonfederal dams for water storage, hydropower, and flood control. Five of these dams are in Canada. Even this number of dams appears low, however, because it ignores several significant Bureau of Reclamation dams on such rivers as the Crooked, Deschutes, Malheur, Owyhee, and Powder. (96) Id. at 46-57. (97) Id. at 58-59. A table showing the minimum, average, and maximum Columbia flows and existing diversions, all by month, appears id. at 53. (98) Id. at 63-69. (99) Id. at 70. (100 Id. at 71-106. (101) Id. at 76-83. The "catches [of salmon by commercial fishermen] on the Columbia are one measure of the decline. From 1880 to 1930 the catch was 33.9 million pounds a year. From 1931 to 1948 it declined to 23.8 million. From 1949 to 1973 the yearly average fell to 10.9 million pounds. In 1993 the catch was 1.4 million pounds." Id. at 82 (citation omitted). (102) Id. at 83-104. (103) Id. at 105-06 (emphasis omitted). (104) Id. at 107-45. (105) "The Columbia River is one of the nation'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 resources responsibilities in the basin." Id. at 107 (citation omitted). While it is technically true that the Columbia Basin covers parts of seven states, in reality, Idaho, Montana, Oregon, and Washington have been significant players in Columbia River water management, while Nevada, Utah, and Wyoming have not. (106) Id. at 113-14. Over the years, however, the Council has been criticized for favoring power production and other traditional economic uses of the River over salmon. See, e.g., Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 ENVTL. L. 657, 727-34 (1991). (107) MANAGING THE COLUMBIA RIVER, supra note 5, at 116-32. (108) See supra notes 49-57 and accompanying text. (109) MANAGING THE COLUMBIA RIVER, supra note 5, at 134-43. |