A watershed issue: the role of streamflow protection in Northwest river basin management.I. INTRODUCTION
The recent crash of salmon, steelhead, and trout populations has drawn attention to the altered state of Northwest rivers. Columbia Basin salmon runs once numbered perhaps sixteen million fish; today, they hang by a thread.(1) The issue of how to save the salmon has become exceedingly large, complex, and contentious, possibly more so than any other issue in the region. These ancient species are extremely important to the economy, ecology, and culture of the Northwest, and their decline raises fundamental questions about the problems confronting the region's rivers and the plans to restore these rivers to health. While hydropower dams may be the biggest single problem on the Columbia and Snake Rivers,(2) dams are only part of the trouble with rivers in the Northwest. Many fish stocks are in serious peril even without the harmful effects of large dams. These stocks include resident fish such as the bull trout (which allegedly deserves an Endangered Species Act listing)(3) as well as salmon runs on coastal streams.(4) The region must look beyond dams if it is to restore its fish populations and rivers.
There is increasingly wide recognition of the need to look comprehensively at the problems facing rivers, from excessive water temperatures to nonpoint source pollution to dewatering. Much recent attention has been directed to the concept of the "watershed"--the entire basin drained by a particular river or stream--and to the need to address the whole range of factors affecting watershed health. Today, people ranging from federal agency heads to family farmers are discussing watershed planning, watershed restoration, and watershed management.
This focus on watersheds fits within the broader context of "ecosystem management," an approach to natural resources management that considers a broad range of ecological as well as societal factors.(5) In other words, the watershed/ecosystem approach promises comprehensive resource management that takes account of both natural and human values--a truly holistic stew.
Conceptually, comprehensive- resource management at the watershed or ecosystem level makes a good deal of sense. In the Northwest, however, this concept is confronted with a very serious and difficult problem: state water law and the prior appropriation doctrine.
Water is the key ingredient in healthy, productive, functioning ecosystems. Especially in the arid and semi-arid country east of the Cascades, water is life itself. Water nourishes all manner of organisms that inhabit rivers and riparian corridors. Water is also biologically and economically crucial to human survival. Any attempt to implement truly comprehensive "ecosystem management" must include management of water to meet both human and environmental needs.
In the Northwest, however, water is not managed that way. Instead, water is governed by a system of appropriative rights that allows private users to take all the water out of a stream to meet their needs, leaving nothing for the needs of other people or the environment. Thus, state water law does not fit well within a comprehensive approach to managing resources that considers the interests of all people and all species in maintaining sustainable ecosystems. Rather, northwestern states manage water under the simple directive of prior appropriation: "first in time, first in right."(6)
For this reason, many Northwest streams are completely dried up at certain times of year; many others are drastically lowered, with major impacts on water temperature, pollutant concentrations, the quantity and quality of aquatic habitat, and other values. Most of the water diverted and consumed goes to irrigated agriculture.(7) Lacking adequate water, many Northwest rivers cannot support the fish, birds, plants, and other creatures that depend on them. A watershed is simply not healthy if all the water is removed from its rivers. The four major Columbia Basin states (Idaho, Montana, Oregon, and Washington) have taken steps to protect some of the remaining flows in certain rivers. For most reaches of most rivers, however, instream flow protection is nonexistent or inadequate to protect aquatic life. Moreover, neither streamflow protection measures nor state water planning pro grams are well connected with many "watershed management" activities of government agencies and local groups, although some notable exceptions exist. For both legal and political reasons, watershed management efforts generally concentrate more on land use and riparian improvements than on water quantity. However, such efforts cannot be fully comprehensive or successful unless they effectively address the need for instream flows.
Part II of this Article examines existing watershed management activities in the Northwest, sampling watershed efforts at the federal, regional, state, local, and tribal level. This Part also discusses possible reasons for the popularity of the watershed approach. Part III explores the role of instream flow protection in Northwest watershed management. Instream flows are important to watershed health, as recognized by many watershed management plans. State laws provide for instream flow protection and water planning at the river basin level, but these measures often are not connected with watershed management efforts. Streamflow protection, however, can be integrated into the watershed approach and may be crucial to the success of comprehensive watershed management. Part IV concludes with some cautionary notes about the future of streamflow protection and watershed management in the Northwest.
II. WATERSHED MANAGEMENT: THE POPULAR CHOICE
Throughout the Northwest, government agencies at every level, as well as many private citizens, are beginning to advocate a watershed approach to natural resource management. The following section identifies some of the better-known "watershed management" efforts in the region and discusses some of the reasons why the watershed approach has be come popular.
A. Watershed Management Efforts by Various Agencies
"Watershed management" comes in all shapes and sizes, from multi-agency efforts to manage all federal forest lands west of the Cascades to volunteer watershed councils that concentrate on one small river basin. The following pages sample such activities in the Northwest.
1. Federal Efforts
a. U.S. Forest Service/U.S. Bureau of Land Management (BLM)
Federal natural resource agencies in the Northwest have embarked on some ambitious and high-profile attempts at ecosystem management. The key agencies, the U.S. Forest Service and BLM, manage much of the land in the Columbia River Basin. What ecosystem management actually means to these agencies is somewhat difficult to comprehend.(8) Whatever the concept may mean, the federal land management agencies seem committed to it, as the theme of ecosystem management runs strongly through the Eastside Project and its interim PACFISH strategy to protect anadromous fish habitat on public lands east of the Cascades,(9) as well as the Clinton Forest Plan for managing federal lands west of the Cascades.(10)
PACFISH is essentially a watershed management program for federal lands that provides habitat for Pacific anadromous fish. The program sets riparian goals, as well as riparian management objectives, standards, and guidelines. PACFISH also identifies key riparian management areas and watersheds, and calls for watershed analysis and restoration.(11) Because it applies only to federal lands, however, even PACFISH stops short of truly comprehensive watershed management.
Although the Clinton Forest Plan looks broadly at a huge geographic area extending from the Canadian border to San Francisco Bay,(12) it emphasizes the protection of land within certain key watersheds.(13) These key watersheds were selected either for contributing to anadromous salmonid and bull trout conservation or because they are sources of high quality water.(14) The Forest Plan aims to protect these areas through actions based on watershed analysis--"a systematic procedure for charaCterizing watershed and ecological processes to meet specific management and social objectives."(15)
b. National Marine Fisheries Service (NMFS)
NMFS released its Proposed Recovery Plan for the endangered Snake River salmon in March 1995.(16) Like the Forest Plan, the Proposed Recovery Plan aims to restore the health of an entire ecosystem, rather than focus on particular endangered species:
The goal of the Proposed Recovery Plan is to restore the health of the
Columbia and Snake River ecosystem and to recover listed Snake River salmon
stocks. Many of the recommended actions will directly benefit other species
such as other salmon stocks, sturgeon, and bull trout. Implementation of the
Proposed Recovery Plan should also conserve biodiversity, a factor that is
essential to ecosystem integrity and stability.(17)
The Proposed Recovery Plan is wide-ranging, addressing the tributary, mainstem, and estuarine ecosystems; harvest management; and artificial propagation.(18) In evaluating the problems of the tributary ecosystem, NMFS recognized that many factors have played a role in the decline of the Snake River salmon: "Land and water management actions, including water withdrawals, unscreened water diversions, stream channelization, road construction, timber harvest, livestock grazing, mining, and outdoor recreation have degraded important salmon spawning and rearing habitats."(19) The Proposed Recovery Plan's prescription for measures to address these problems is correspondingly comprehensive.(20)
To address problems of salmon habitat in Columbia-Snake tributaries, NMFS concluded that "[a]n ecosystem-based approach that considers en tire watersheds and river subbasins is needed. Such an approach will en sure that all the physical, biological, and chemical processes and conditions that contribute to the development of productive salmon habitat are maintained."(21) The Proposed Recovery Plan stressed that management planning is needed at both the ecosystem (Columbia Basin) scale and the watershed or sub-basin scale, and that ecosystem and watershed planning must be integrated.(22)
The Proposed Recovery Plan recognized ongoing watershed planning efforts in several river basins and noted that they "provide useful templates for other watersheds."(23) The basins identified are the Grande Ronde, Asotin Creek, Lemhi, Upper Salmon, and Tucannon.(24) The plan also cited the joint salmon recovery effort of Wallowa County and the Nez Perce Tribe as "an example of a productive grass-roots process."(25)
2. Regional Efforts (Northwest Power Planning Council (NPPC))
In December 1994, NPPC(26) issued its revised Fish and Wildlife Program for the Columbia Basin.(27) Like the NMFS Proposed Recovery Plan, the Fish and Wildlife Program analyzed the causes of the regional salmon crisis and recommended corrective measures. And like NMFS, the Council attempted to approach salmon recovery on an ecosystem basis.(28)
The Fish and Wildlife Program's prescription for salmon recovery addresses dam and river operations, harvest, and hatcheries, as well as habitat. Although the Fish and Wildlife Program is regional in scope, its approach to habitat restoration begins with "a `subregional' process that brings relevant interests together to address the needs of weak fish populations in particular watersheds."(29) Here again, the ecosystem management strategy relies heavily on involvement at the local watershed level.
In fact, the Council's approach to habitat protection is based largely on voluntary and cooperative watershed,planning efforts. The Fish and Wildlife Program sets forth "habitat objectives" applicable to all watersheds(30) but notes that these objectives are addressed principally to public lands within watersheds.(31) However, the Fish and Wildlife Program also recognizes the necessity of habitat conservation efforts on private lands and calls for public and private parties to voluntarily join together in developing and implementing measures to restore fish habitat.(32) The Council also specified that it expects progress toward habitat objectives to be achieved through watershed assessment, watershed management, collaboration, and locally adopted watershed plans.(33)
The Council actually went a step further, making cooperative, watershed-based habitat protection efforts a specific element of the Program. The Fish and Wildlife Program calls for state and federal agencies, along with the Bonneville Power Administration, to support local watershed efforts.(34) It also recommends that a model watershed project be implemented in each of the four major Columbia Basin states, based on the Grande Ronde, Upper Salmon and Lemhi Model Watershed, which had already been established under the Program.(35)
3. Oregon's Watershed Programs and Other State Initiatives
Oregon has the oldest and most extensive statutory program relating to watersheds of the four major Columbia Basin states. Oregon established the Watershed Enhancement Program in 1987,(36) and in recent years, the state's efforts to restore and protect watersheds have evolved and expanded.
The Watershed Enhancement Program is administered by the Governor's Watershed Enhancement Board (GWEB), an eleven-member panel comprising the heads of five state natural resource commissions and boards and six state and federal officials.(37) The Watershed Enhancement Program helps promote the state's goal to "[e]nhance Oregon's waters through the management of riparian and associated upland areas of watersheds in order to improve water quality and quantity for all beneficial purposes."(38) By 1995, GWEB had awarded nearly $2.3 million in grants for education and demonstration projects involving vegetation planting, fe(nc)ing, and other watershed restoration measures.(39)
Oregon's second program, the Watershed Health Program, was established in 1993 by House Bill 2215.(40) This Bill directed the Strategic Water Management Group(41) (SWMG), a state interagency council, to initiate a watershed management program based on a report that had already been issued by a public-private working group.(42) The report recommended a wide variety of measures whereby the state could restore and protect watershed health.(43)
House Bill 2215 also encouraged the establishment of voluntary local watershed councils as described in the working group report.(44) The report envisioned watershed councils that would "represent a balance of interested and affected persons within the watershed" and facilitate citizen involvement in developing and implementing a watershed program.(45) The report identified seven functions of these local watershed councils; these functions related more to communication, cooperation, conflict resolution, and public involvement than to actual resource management.(46) House Bill 2215 authorized SWMG to work cooperatively with any local watershed council, but provided that requests for state assistance "shall be evaluated on the basis of whether the requesting organization reflects the interests of the affected watershed and the potential to protect and enhance the quality of the watershed in question."(47) As of April 1995, no fewer than thirty-six local watershed councils had formed in Oregon.(48) Some of these councils were just getting organized, while others had produced plans and started to implement them.(49)
The 1995 Oregon legislature passed a law that gave GWEB control over the Watershed Health Program.(50) Because of the law, the Watershed Health Program has simply become a state program to support local watershed councils. The additional measures contemplated by House Bill 2215, most of which had not been implemented, were jettisoned from the law. The 1995 law provided some general guidance on the makeup of local watershed councils,(51) the plans to be developed by these councils,(52) and state priorities in promoting watershed health.(53)It also revised the Watershed Enhancement Program to be more favorable to watershed councils.(54) Thus, Oregon's watershed programs have been unified under GWEB,(55) whose main role will be funding specific projects identified by local councils.
The 1993 legislature appropriated $10.2 million to fund the Watershed Health Program for two years, the bulk of which was to be spent for the South Coast/Rogue and the Grande Ronde Basins.(56) As of early 1995, over one hundred individual projects in these basins had been completed or approved by SWMG for Watershed Health Program funding.(57) The 1995 legislature allocated approximately $2.7 million in lottery funds to GWEB.(58)
The Washington Legislature passed a law in 1994 to establish a watershed planning program, somewhat similar to Oregon's, based on state agency coordination and project funding assistance.(59) The statute made no changes in substantive law but established a Watershed Coordinating Council comprising representatives of ten state natural resource agencies. The Council was to coordinate watershed planning actions among state agencies, as well as with federal, tribal, and local governments.(61) Both the statute and a later executive order directed the Council to prepare a wide-ranging report on watershed planning and restoration matters.(62) In addition, the legislature appropriated $10 million for watershed restoration projects to be selected by state agencies.(63)
The other two Columbia Basin states have not gone so far as to establish a statewide watershed management framework.(64) (All four states do authorize water resource planning on a watershed basis, but most of these efforts do not involve comprehensive watershed management.)(65) Both Idaho and Montana, however, have legislatively approved a watershed planning/management approach in particular river basins: the Henry's Fork in Idaho(66) and the Upper Clark Fork in Montana.(67) In both cases, however, the legislatures essentially approved councils that had already formed within these basins.(68)
4. Local Efforts
Although government agencies at every level are now espousing watershed management principles, much of the activity in forming watershed councils and adopting watershed plans is coming from the local level--from within the river basins themselves. Many such efforts have been undertaken in the Northwest, each with its own story, and this Article merely samples them. The following pages identify one locally based watershed protection initiative in each of the four major Columbia Basin states and briefly explain their background, membership, and mission.
a. Idaho--The Henry's Fork Basin
The Henry's Fork of the Snake River drains a large area of eastern Idaho and a portion of northwest Wyoming.(69) The Henry's Fork is a world famous trout stream; recreation and tourism are important to the Basin.(70) Over 320,000 acres of cropland are irrigated from surface and ground water sources within the Basin.(71) The timber industry is also economically important to the area.(72)
The Henry's Fork Basin has long been the site of disputes between instream and out-of-stream water interests. The watershed council was initiated when a local environmental group, the Henry's Fork Foundation, approached the Fremont-Madison Irrigation District and asked the irrigators to support a local watershed council.(73) The district not only agreed to participate in the council but also agreed to serve with the Henry's Fork Foundation as its co-facilitators.(74) These groups formed the core of the council, which was formally recognized by the Idaho Legislature in 1994.(75)
The Henry's Fork Watershed Council chose to be very inclusive in its membership:
The Council shall be comprised of citizens, scientists and agency
representatives who reside, recreate, make a living and/or have legal
responsibilities in the Basin, thus ensuring a more collaborative approach to
resource decision making. The Council shall not be limited in the number of
participants, with members organized into the following three component groups:
(a) Citizens Advisory Group--Members of the public with commodity,
conservation and/or community development interests ....
(b) Technical Team--The team shall be composed of scientists and technicians
from government, academia and the private sector ....
(c) Agency Roundtable--The Roundtable shall have representatives of all local,
state and federal entities with rights or responsibilities in the Basin,
including the Shoshone-Bannock Tribes.(76)
The Council explained its approach as follows;
As interests in the basin have diversified, the Henry's Fork has sustained
increasing pressure to satisfy irrigation demand, hydropower requirements and
instream flow needs for fisheries and recreation. These issues are the focal
points of the Henry's Fork Basin Plan, passed by the 1993 Idaho
Legislature.... In order to implement the recommendations and achieve
long-term goals in the basin, an innovative, consensus-building process is
needed which includes all resources and people in the watershed.
. . .
. . . Citizens and agencies are beginning to recognize the importance of
working together, as a rural community, to resolve the ecological problems in
the watershed and to work towards a sustainable future for all concerned.(77)
The council sees itself not simply as a planning body but as the implementer of management plans for the Henry's Fork Watershed.(78) Perhaps the most significant of the plans is the Comprehensive State Water Plan for the Henry's Fork Basin, approved by the Idaho Water Resources Board in 1992 and the Idaho State Legislature in 1993.(79) The council's support could advance several of the recommendations and goals of the Henry's Fork Plan, such as improved water conservation and increased screening of irrigation diversions.(80)
b. Montana--The Upper Clark Fork Basin
Arising in western Montana and flowing northwesterly into Idaho's Pend Oreille Lake, the Clark Fork River has been called "Montana's largest and perhaps most abused river."(81) The Clark Fork Basin is extremely scenic, and the mainstem Clark Fork is potentially an outstanding river for trout fishing.(82) However, dewatering of streams by irrigation diversions is a substantial and chronic problem.(83) The upper basin also has a serious water quality problem due to toxic metals, with four mining-related Superfund sites in the area.(84)
Cooperative local watershed efforts in the Clark Fork Basin grew out of conflicts over water use, especially instream flows. In 1985, the Montana Department of Fish, Wildlife, and Parks filed a request to reserve water for instream flows in the Upper Clark Fork;(85) shortly thereafter, a local conservation district filed a competing reservation request for irrigation water storage projects.(86) As the dispute came to a head, the nonprofit Northern Lights Institute convened the principals in the Upper Clark Fork to discuss how to resolve the issues. Prior to the 1991 legislative session, the irrigators agreed to a moratorium on new surface water rights from the Clark Fork, pending further talks with the other interests. The 1991 Montana Legislature then chartered the Upper Clark Fork River Basin Steering Committee.(87)
The 1991 legislation directed the Montana Department of Natural Resources Conservation to appoint the members of the steering committee, based on "their knowledge of water use, water management, fish, wildlife, recreation, water quality, and water conservation."(88) In practice, the state selected many of the same people who had been involved in the Northern Lights negotiations.(89) The statute required that the committee must at least include representatives of agricultural organizations, conservation districts, departments of state government, environmental organizations, industries, local governments, reservation applicants, utilities, and water user organizations.(90)
The 1991 statute directed the Steering Committee to complete an Upper Clark Fork River Basin comprehensive management plan by the end of 1994. The plan was to consider and balance all beneficial uses of water in the Basin and make recommendations on how to resolve the Basin's water issues.(91) The Steering Committee's plan, completed in December 1994, recommended several measures, including closure of the Upper Clark Fork to all new water rights, investigations of structural and nonstructural storage prospects, measures to "encourage" better water quality protection, and a pilot program to lease water rights for instream uses.(92) The Montana Legislature codified many of the plan's elements in 1995.(93) The 1995 statute also continued the Steering Committee, directing it to review the progress of management actions, make recommendations to the Montana Legislature, and serve as coordinator and facilitator on water issues in the Upper Clark Fork Basin.(94)
c. Oregon-Wallowa County
Wallowa County is the northeasternmost county in Oregon. The major rivers draining the county are the Grande Ronde and Imnaha, both tributaries of the Snake. Most of the county is federal land, either within the Wallowa-Whitman National Forest or the Hells Canyon National Recreation Area. Timber, grazing, and tourism are key elements of the county's economy.
Declining salmon runs in Wallowa County and the imminent listing of Snake River chinook salmon under the Endangered Species Act(95) caused Wallowa County and the Nez Perce Tribe to join forces in developing a salmon recovery plan. Wallowa County citizens expressed interest in fish restoration and the protections of existing economic uses of public lands. The Nez Perce Tribe wanted to rebuild the salmon runs, because, though it has its reservation in Idaho, the tribe holds treaty fishing rights in Wallowa County under its 1855 treaty with the United States.(96)
The county and the Tribe formed a Wallowa County Salmon Recovery Strategy Committee. The Committee comprised Wallowa County citizens (representing grazing, timber, business, community, and environmental interests); representatives of the Nez Perce Tribe; and state and federal natural agency officials (from BLM, the U.S. Forest Service, and Oregon Department of Fish and Wildlife).(97) In part, members were selected for their ability to work cooperatively on the issues; so-called "extremists" from the local community were not invited.(98)
The Committee's mission was:
To develop a management plan to assure that watershed conditions in Wallowa
County provide the spawning, rearing, and migration habitat required to
assist in the recovery of Snake River salmonids by protecting and enhancing
conditions as needed. The plan will provide the best watershed conditions
available consistent with the needs of the people of Wallowa County, the Nez
Perce Tribe, and the rest of the United States ....(99)
In August 1993, the Committee produced the Wallowa County/Nez Perce Tribe Salmon Recovery Plan.(100) The plan described salmon habitat requirements and desired conditions, analyzed habitat problems, and identified possible solutions within twenty-seven Wallowa County sub-basins. The major focus was on forestland management, although the plan also addressed factors such as irrigation diversions and recreational river uses.(101) The plan recommended implementation through a cooperative, consensus approach, even for activities involving federal lands.(102) After producing the plan, the county formed the Wallowa County Watershed Enhancement Committee to provide for its implementation.(103)
The plan already has achieved some of its goals by receiving favorable, albeit brief, mention in both the NMFS, Proposed Recovery Plan and the NPPC Fish and Wildlife Program.(104) Moreover, the larger Grande Ronde Model Watershed Program later incorporated the Wallowa County/ Nez Perce Plan.(105)
d. Washington-The Yakima River Basin
The Yakima River drains much of south-central Washington before emptying into the Columbia River at the hi Cities. The upper Basin is largely national forest land, and the Yakama Indian Reservation(106) occupies much of the Basin west of the River and below the city of Yakima. Irrigation is the region's dominant use of water and has helped the Yakima Basin become an enormously productive agricultural region.
Yakima Basin citizens launched a watershed initiative in response to a persistent drought that contributed to significant water shortages in the 1990s. The impetus came from a small group of agricultural producers and processors, area businesspersons, and concerned individuals.(107) At first the group was primarily interested in advocating a project to pump Columbia River water up into the Yakima Basin.(108) In March 1994, however, the citizens formed a more diverse Yakima River Watershed Council "to integrate a broad spectrum of water-based interests in the three-county area, encompassed within the Yakima River Basin, into a consensus process for the purpose of sustaining a sufficient water supply for all stake holders into the 21st Century."109)
The Yakima River Watershed Council claims a large and varied membership of individuals and a wide range of public and private entities.(110) Its board of directors numbers an astonishing fifty people,(111) and it has selected a twelve-member executive committee. Both the board and the committee include representatives of varied interests. In addition, the Council has set up technical committees to address a number of specific topics.(112)
The Council's mission statement is "[t]o develop and implement, through consensus, a plan to provide consistent and adequate water to meet all economic, cultural, and natural environmental needs in the Yakima River Basin."(113) The Council seems to have identified a number of possible options for meeting this goal, such as conservation, storage, and watershed restoration, but it is initially interested in acquiring streamflow data.(114)
5. Tribal Efforts
Indian tribes are involved in a number of watershed management activities in the Northwest. Tribes participate in watershed efforts at many levels and in many capacities. Tribal activities range from directly implementing watershed restoration measures on and off their reservations, to serving on local watershed councils, to participating in federal ecosystem management efforts.
The actions of the Confederated Tribes of the Umatilla Indian Reservation (Umatilla Tribes) illustrate the diversity of tribal involvement in watershed management. The Umatilla Tribes' reservation straddles the upper Umatilla River east of Pendleton, Oregon. The Tribes accepted this reservation in an 1855 treaty with the United States,(115) under which they ceded over six million acres in present-day eastern Oregon and Washington. They retained hunting and fishing rights across this vast area, however, and thus have a major interest in several watersheds outside the Umatilla Basin.(116)
The Umatilla Tribes have taken the lead in an effort to restore health to the Wildhorse Creek watershed, part of which is within their reservation. After studies showed that the Wildhorse Creek Basin created serious nonpoint source pollution problems for the Umatilla River, the Umatilla Tribes made it a major focus of their watershed restoration efforts.(117) They met with the public and local landowners and expressed an interest in working on watershed projects in the Wildhorse Creek Basin.(118) The tribal effort gained momentum after implementation of a demonstration project involving a major riparian landowner.(119) The Tribes are currently undertaking several additional projects involving measures such as fencing, check dams, and streambank planting. Public agencies and private conservation groups have participated actively in these projects.(120) The goal of the tribal effort is improved water quality and, over the longer term, restoration of salmon and steelhead to Wildhorse Creek.(121)
Representatives of the Umatilla Tribes serve on both the Umatilla and Walla Walla Basin watershed councils.(122) An Umatilla Tribal representative was also a charter member of the Grande Ronde Model Watershed Board.(123) This representative explained the Umatilla Tribes are participating in the Grande Ronde program because
[i]t is an opportunity to work with people truly affected by issues and
plans.... Tribal involvement benefits the [program] by bringing the clout of
tribal government, which often works at the federal level, to a local effort.
. . . Our hope for the Model Watershed . . . is that it will result in a
restoration of the salmon economy for the tribes and that it will mesh in a
positive way with the non-tribal economy in the basin.(124)
Because of their interest in the overall health of salmon stocks in the interior Columbia Basin, the Umatilla Tribes have also taken a basinwide approach to water and watershed management. Their 1995 Columbia Basin Salmon Policy(125) addressed the broad issues of water, harvest, and hatchery fish supplementation on a regional basis and called for actions to restore the health of the tributary, Columbia-Snake mainstem, estuary, and ocean ecosystems. The plan stated the Umatilla Tribes' support of certain measures to restore adequate instream flows and rebuild salmon habitat throughout the Columbia Basin.(126)
The work of the Umatilla Tribes illustrates the broad range of tribal involvement in Northwest watershed issues but by no means tells the whole story. Tribes have played a key role in developing watershed strategies in several areas, including the Nez Perce Tribe's partnership with Wallowa County in preparing a salmon recovery plan(127) and the Jamestown S'Klallam Tribe's role as coordinator of the Dungeness-Quilcene watershed planning effort.(128) Northwest tribes have also worked collectively to address regional salmon recovery and ecosystem health issues through the Columbia River Inter-Tribal Fish Commission and the Columbia Basin Fish and Wildlife Authority.(129)
The foregoing review of selected watershed management activities shows how popular this approach has recently become in the Northwest. Nearly all of these efforts have been launched since 1990, so they have not yet had time to produce major tangible results. Because they do not have a proven record of success, watershed approaches must be gaining acceptance for other reasons. The following section explores what these reasons might be.
B. Reasons for the Popularity of Watershed Approaches
The 1990s have been a time of strife in natural resources management in the West. Conflict has become commonplace, while consensus has proved elusive. "Ecosystem management" has itself been criticized, both by resource users who fear additional restrictions to protect natural resources and by environmentalists who oppose any weakening of current measures.(130) Federal efforts at ecosystem management have been viewed with particular suspicion, partly because neither side trusts the federal agencies and partly because no one is certain what ecosystem management actually means.
The watershed movement, however, seems to have built a diverse constituency. As explained above, the watershed approach has been initiated by federal agencies, rural counties, environmental groups, and business interests alike. Watershed protection seems to be one of the few concepts that currently enjoys support from many environmentalists, resource users, and management agencies. Of course, these groups do not necessarily support the idea for the same reasons.
1. Ecological Benefits
Watershed management offers the possibility that natural resources will be protected more effectively and comprehensively than they have in the past. Under a truly holistic approach to watersheds, individual resources and activities are not viewed in isolation. This approach acknowledges and understands the interconnectedness of everything in the watershed, all the lands, waters, and creatures, human and otherwise. The holistic approach entails recognizing all the effects resulting from humanity's actions and making decisions that protect and promote the long-term health of the watershed and all its inhabitants. In theory, at least, watershed management is truly a better approach.
The crash of Northwest salmon and steelhead runs has given the watershed approach a strong push. Not only has the salmon crisis made it necessary to do something, but it has shed light on the many factors causing the decline of freshwater salmon habitat. As stated in the NMFS Proposed Recovery Plan, "[l]and and water management actions, including water withdrawals, unscreened water diversions, stream channelization, road construction, timber harvest, livestock grazing, mining, and outdoor recreation have degraded important salmon spawning and rearing habitats."(131) Thus, federal agencies recognize that a wide variety of human activities adversely affect fish populations and habitat. Salmon advocates are hoping that watershed management can provide a stronger and more comprehensive approach to these varied threats, on private as well as public land.
2. Local Control
A second reason for the popularity of the watershed approach has more to do with economics and politics than with ecology. Many rural communities in the Northwest rely heavily on the use of public resources such as water(132) and federal lands as their economic foundation. Such communities often believe they have little control over how these resources are managed, especially given recent injunctions against logging, grazing, and other activities on federal lands.(133) Some of these communities have launched watershed councils, motivated largely by a desire to maintain existing economic activities and increase local control over public resources.(34)
In eastern Oregon, at least, the potential economic impacts of the salmon crisis seem to have driven local watershed efforts. This was certainly true of the Wallowa County/Nez Perce Salmon Recovery Plan.(135) The 1993 Oregon Legislature chose the South Coast/Rogue and Grande Ronde Basins to become the state's model watersheds-and thus to receive the bulk of $10 million in watershed program funding-because of concern that salmonid species in those basins would soon be listed under the Endangered Species Act.(136)
The membership composition of some Oregon watershed councils strongly indicates that their primary goal is the protection of existing economic activities.(137) For example, the Umatilla Basin Watershed Council was originally formed with thirteen members, of which eight to ten were closely associated with irrigated agriculture.(138) Moreover, the original representative of "fisheries" interests on the Council was president of the Eastern Oregon Irrigation Association.(139) For some watershed council members, restoring ecological health seems to be a secondary goal. As one member of the Grande Ronde board put it:
I represent private landowners on the Grande Ronde Model Watershed Board
. . . . Our goal is better use of water. We recognize that fish survival is a
major priority, but while establishing habitat for fish, we do not want to
deteriorate the economic benefits that are based on water use. We see a need
for timber production, agricultural irrigation, and flood control. Hopefully
we can do these things, and improve fish habitat.(140)
In Wallowa County, resource users played a major role in developing a salmon recovery plan. The Wallowa County Salmon Recovery Strategy Committee was heavily weighted toward grazing and especially logging, with eight of eighteen members having direct timber ties.(141) Forest management was a major focus of the Wallowa County Plan, and several of the plan's recommended management approaches could encourage logging.(142) In commenting on a draft of the plan, both the Forest Service and the Bureau of Reclamation criticized the plan's emphasis on thinning dense stands of trees and indicated that this action could do more harm than good.(143)
An additional motivation for some local watershed efforts seems to be a desire to reduce the influence of "outsiders," such as government agencies, nonresident environmentalists, and federal courts. This was certainly a strong factor in the formation of the Umatilla Basin Watershed Council: "As we move forward we seize the opportunity to control our own destiny. We will be avoiding the potential for outsiders to demand action. We can identify our own solutions to the local problems."(144)
3. Cooperation and Consensus
Many watershed management proposals provide that problems should be approached cooperatively and decisions be made by consensus. NPPC, in prescribing a coordinated approach to habitat planning, "urges all parties to undertake, collectively and voluntarily, the habitat assessment and restoration actions needed" for salmon recovery on a "truly collaborative" basis.(145) For many local watershed councils, consensus is a bedrock principle. For example, the Idaho Legislature recognized and commended the Henry's Fork Watershed Council for its "nonadversarial, consensus-based approach to problem solving and conflict resolution among citizens, scientists and agencies with varied perspectives."(146)
The consensus approach appeals to many people who believe that natural resource decisions are best made through a process of cooperation rather than conflict. Despite the increasing polarization over natural resources in the West, or perhaps because of it, these people call on all sides to come together and be reasonable. They maintain that if all sides have access to good, scientifically sound information, even traditional opponents can find common ground.
That view may be overly optimistic, but many agencies nonetheless have embraced consensus-based watershed strategies. At least two factors help explain this result. First, the agencies see voluntary, consensus approaches as the best way to gain the cooperation of private landowners and water users. Public lands cannot bear the entire burden of habitat restoration and species recovery, and the agencies believe it is better to address private property through cooperation rather than regulation. Second, many natural resource agencies seem eager to become less controversial. Battered by strong, conservative political winds, the agencies have sought to lower their profile by pursuing consensus at the local level.(147)
Local watershed councils may have other reasons for operating by consensus.(148) They may consider it the best means to promote watershed health. However, from the standpoint of conservation, the consensus approach has both benefits and drawbacks. The benefit of consensus is that it can reduce resistance and increase cooperation regarding management actions. The Wallowa County Plan states that nothing will work without consensus: "Any plan that does not have local ownership and support as well as the cooperation of government agencies will not succeed."(149) On the other hand, consensus can certainly lead to paralysis or to a result that constitutes the "lowest common denominator."
Local councils may also rely on consensus for economic reasons. Where a major goal of these councils is to protect existing economic uses of land and water, a consensus approach ensures that these uses will not be threatened by council actions. This is especially true where council membership is heavily weighted toward economic interests, and where community sentiment strongly favors existing water and land use activities.(150)
The major reason many people want consensus at the local level, however, undoubtedly has to do with the nature of rural communities. People within these communities often have close ties to the place they live and to the other people who live there. They see firsthand the environmental, economic, and social effects of natural resource uses and policies. For better or worse, people in rural communities are constantly confronted with the human and ecological consequences of their actions. Thus, it is not surprising that many rural communities seek to sustain their watersheds in a way that works for the local population. People have to live there.
In sum, watershed strategies have become popular in the Northwest for a variety of reasons. No one can yet say how effective they will be, because the phenomenon is too recent to have produced many tangible results.(151) But even today, many watershed approaches show a basic, and perhaps fatal, flaw: not enough attention is given to water quantity-to restoring and protecting instream flows.
III. THE ROLE OF STREAMFLOW PROTECTION IN WATERSHED MANAGEMENT
A healthy watershed requires some water to flow in its rivers. Many Northwest rivers, however, are completely dried up because water is withdrawn for consumptive uses, particularly irrigated agriculture. Watershed management strategies recognize this problem, but for various reasons they tend to concentrate more on improving land use practices and water quality. The four major Columbia Basin states all provide some legal protections for instream flows, but these protections are neither adequate nor connected to watershed management programs. If such programs are to succeed in restoring Northwest watersheds to health, they must recognize instream needs and provide means to restore and protect streamflows.
A. Streamflows and Watershed Health
Largely because of water diversions for out-of-stream uses, many rivers and streams in the Columbia Basin dry up in the summer and many others are severely depleted. The diversion of entire rivers for private uses is wholly legal under the prior appropriation doctrine that dominates western state water law.(152) The states issue permanent rights allowing a certain amount of water to be taken for a particular "beneficial use," such as irrigation or household use.(153) The owner of such a water right may take as much water as the right allows, even if a river is drained dry as a result, unless that water is needed to satisfy an older, and thus superior, water right.(154)
In identifying impediments to recovery of the endangered Snake River salmon, the National Marine Fisheries Service (NMFS) recognized low streamflows as a major problem and identified irrigation water withdrawals as the primary cause, especially in the Snake River Basin.(155) Irrigation accounts for nearly eighty-eight percent of all water withdrawals in the Pacific Northwest.(156) Irrigation water needs are greatest in the summer and early fall, during a time when streamflows are naturally at their lowest due to scarce rainfall and depleted snowpacks.
The impacts of agricultural water withdrawals in a particular watershed may be severe, whether irrigators primarily pump ground water, as in Idaho's Big Lost River Basin, or divert surface water, as in Oregon's Umatilla River Basin.(157) The Oregon Water Resources Commission found that in the Umatilla Basin, "[l]ow streamflows are the chief limiting factor to salmonid production. Low streamflows impede and block fish migration, increase water temperatures, and contribute to reduced habitat and competition from warm water fish species."(158)
Two recent studies underscore how vital instream flows are for salmon and steelhead. The Umatilla Tribes, who evaluated wild steelhead in the Umatilla River,(159) and the Center for the Study of the Environment, who evaluated spring chinook in the Rogue River,(160) both have established a strong positive relationship between river flows and returns of anadromous fish two to four years later. The Rogue River study showed that adult salmon returns were more strongly related to minimum streamflows than any other factor studied, including harvest and hatchery production.(161) It also suggested that dams and water withdrawals are major problems for salmon survival on the Rogue.(162) Daniel Botkin, Director of the Center for the Study of the Environment, concluded that the lesson of hiS study "is do everything you can to raise minimum flows."(163)
Many resource management agencies and watershed protection strategies recognize the importanCe of instream flows and call for measures to improve them. For example, the Proposed Recovery Plan repeats the Snake River Salmon Recovery Team's recommendation that State fishery agencies
ensure that actual streamflow withdrawals for diversions are not in excess
of legal water rights. If insufficient streamflows are still occurring,
reduction of irrigation withdrawals should be sought wherever such withdrawals
lead to insufficient streamflow for habitat, impede downstream or upstream
passage, or infringe upon water quality control at any downstream location.
Other management plans that recognize the need for instream flows to restore fish habitat and watershed health include the Northwest Power Planning Council's Fish and Wildlife Program,(165) the federal PACFISH strategy,(166) the Grande Ronde Model Watershed Program's Operations-Action Plan,(167) and the Umatilla Tribes' Salmon Policy.(168)
B. Water Right Troubles
Despite recognizing the importance of instream flow restoration and protection, watershed management plans generally attempt to provide fish habitat by other means, such as improving land use practices and adding "structure" to streams. Sometimes this approach can be explained largely by agency jurisdiction: Because the U.s. Forest Service and U.S. Bureau of Land Management are land management agencies, their plans focus on land use. But other plans, even though they aspire to holistic watershed management and stress the need for water instream, do not address streamflows effectively. Instead, they are stymied by western water law and politics.
As an example of this, NPPC's Fish and Wildlife Program calls for a holistic, watershed-based approach to salmon habitat: "A total watershed perspective, in which fish needs, land and water conditions, and local, private and government initiatives are viewed together, will play an essential role in the ultimate success of efforts to rebuild salmon and steelhead runs."(169) The Program specifically recognizes the need for instream flows, and calls on the states, the Bureau of Reclamation, and the Bonneville Power Administration to take certain steps to ensure adequate flows.(170) But Congress has limited NPPC's ability to address streamflows, by requiring the interstate agency to defer to state laws governing water allocation:
Congress and the Council recognize that this program must be implemented
within a complex scheme for allocating rights to use Columbia River Basin
water. As noted in the Northwest Power Act, . . . nothing in this program
authorizes appropriation of water, affects rights to water or jurisdictions
over water, or establishes the respective rights to water of the federal
government, individual states, Indian tribes or individuals. The Council
assumes that the federal implementing agencies will work hard to develop
cooperative and creative ways to implement the program's water flow measures
with those requirements in mind.(171)
Thus, NPPC maintains that although water is urgently needed for instream use, it generally cannot be provided except through "cooperative and creative" means.(172)
The Northwest Power Act's specific disclaimer on water rights(173) illuminates an important point. Watershed management efforts throughout the region proceed on essentially the same basis: Go forth and do good, saving fish and promoting ecosystem health in a holistic manner, but Don't Mess with Water Rights.(174)
This result is determined in part by legal considerations. Even though water rights confer only a limited right to use water owned by the public, they are generally considered to be property rights.(175) State law predominately determines how western waters are used. Even federal water laws, such as the Clean Water Act(176) and the reclamation laws,(177) acknowledge the primacy of state law in water allocation.(178)
The biggest constraint on watershed management efforts to improve instream flows, however, may be politics. For the most part, Northwest water users, especially irrigators, have successfully resisted changes that could provide environmental benefits.(179) Irrigators and other water right holders have enormous influence in the capitals of Northwest states. The legislatures of these states will go to great lengths to protect existing water uses and users.(180) Water users' political influence is almost certain to insulate them from any watershed management strategy at the state level. At the local level, especially in rural areas heavily dependent on agriculture, irrigation and ranching interests have even greater control.
Given that many watershed efforts seem to be motivated largely by various parties' interests in pursuing consensus, reducing public conflict over environmental issues, and asserting local control over natural resources,(181) political constraints seem even more significant. No federal or state official who wants to avoid conflict is likely to make an issue of water rights. Even more clearly, no watershed council with a strong interest in protecting the local economy is likely to propose substantial changes in water use. It is easier for all concerned to focus on somewhat less controversial matters, such as installing fish screens, planting trees along riverbanks, and keeping cattle away from riparian areas. While land use changes may improve flows at certain times by helping to restore the natural hydrograph,(182) such measures offer limited benefits on overappropriated rivers with inadequate streamflow protection.(183)
C. Water Rights and Local Watershed Strategies
In some Northwest river basins where there is enough water to meet instream and out-of-stream demands, instream flow protection need not be the top priority of a watershed management approach. In many basins, however, seasonal low flows, exacerbated by out-of-stream diversions, are a major problem, and streamflow restoration is an urgent need. Unfortunately, watershed management efforts in such basins have been hindered by water rights concerns, both legal and political
The Lemhi River Basin is a case in point. The Lemhi flows into the Salmon River in east-central Idaho, and the Basin has been heavily developed for agricultural irrigation. As explained in a 1990 state/tribal review of the Basin, "the Lemhi's flow is totally appropriated for irrigation; the use of water from the watershed for irrigation influences discharge patterns more than any other factor."(184) The review also noted that "irrigation diversions were impacting anadromous fish production in the Lemhi and the headwaters of the Salmon River as early as the 1850s" and that "[i]rrigation withdrawals have reduced flows, limiting juvenile and adult passage and increasing water temperatures, often to critical levels for anadromous fish during summer months."(185)
In 1992, the Lemhi Basin was selected as a model watershed project under NPPC's Fish and Wildlife Program.(186) A fifteen-member advisory committee was formed "representing local residents, Indian tribes and conservation groups," with the support of a technical committee of agency professionals.(187) Like many local watershed councils, the Lemhi advisory committee developed a vision statement(188) and is guiding the preparation of a watershed management plan.
Moreover, the Lemhi watershed effort has produced some actual water instream at a critical time for salmon. Under a multi-party Memorandum of Understanding, irrigators jointly agreed to forego diversions for a twelve-hour period up to three times a year if low flows cause fish passage problems in a certain reach of the Lemhi. On July 21, 1994, operation of the "Lemhi fish flush" dramatically raised flows in the targeted reach, although it is not clear the operation actually helped any fish.(189) The "flush," along with other steps taken or planned in the Lemhi Basin,(190) show a serious commitment to improving fish habitat.
Nonetheless, low flows caused by irrigation withdrawals continue to be the major problem for salmon habitat in the Lemhi watershed. As stated in the NMFS Proposed Recovery Plan,
even though the Lemhi process has been very helpful in building partnerships
and has resulted in measurable subbasin improvement, difficulties still
remain because: (1) The river is over-appropriated for irrigation, and (2)
major tributaries are regularly dewatered for irrigation. No significant
improvement in spring/summer chinook salmon passage and rearing habitat for
the Lemhi River as a whole is likely to occur unless changes in local
agricultural practices are made.(191)
In the Henry's Fork Basin, a cooperative process produced some worthy potential projects beneficial to streamflows, but legal issues involving water rights have impeded these projects. According to Jan Brown, cofacilitator of the Henry's Fork Watershed Council, "[w]e've got at least four projects that have received endorsements from the Council, where farmers want to return water to the stream, but they're running into their own water law as an obstacle."(192) Idaho water law does not allow the lease or transfer of private water rights for instream use.(193)
In Oregon, such leases are allowed by law(194) but are sometimes hindered by politics. The Grande Ronde Model Watershed Board recently refused--officially, "deferred"--a funding endorsement for a project involving a short-term, voluntary lease of water rights for instream uses in the Lostine River Basin. One board member voiced opposition, as a matter of principle, to any separation of water rights from the appurtenant land. The Board voted 6-5 to defer the proposal.(195) Thus, the Grande Ronde Board was split down the middle over the issue of a short-term voluntary lease of water rights for instream uses. This result illustrates the potential political problem that consensus-seeking local watershed councils may encounter as they attempt to do anything regarding existing water rights.
D. State Instream Flow and Water Planning Efforts
Idaho, Montana, Oregon, and Washington all have laws allowing state agencies to establish instream water rights or minimum streamflows. All but Idaho also allow private water rights to be converted to instream use, at least temporarily. In addition, each state has laws providing for a comprehensive state water plan to be developed watershed by watershed. For the most part, these streamflow protection and water planning programs are not directly connected with the watershed efforts described in Part II of this paper. Experimental planning efforts in Montana and Washington, however, produced locally driven watershed management plans that attempt to address instream flow issues at the basin level.
1. State Instream Flow Laws
State agencies have the primary role in establishing water rights for instream uses in the Northwest states. Idaho allows its Water ResourceBoard and Department of Water Resources to set minimum streamflows, subject to disapproval by the legislature.(196) Montana allows both state and federal agencies, along with political subdivisions of the state, to apply to reserve water "to maintain a minimum flow, level, or quality of water" in any of six designated river basins.(197) Oregon authorizes three state agencies to seek instream water rights for fish and wildlife, water quality, recreation, and scenic attraction.(198) Washington grants its Department of Ecology the exclusive authority to establish minimum water flows or levels to protect the public interest.(199) Oregon was the first state in the region to pass its original minimum streamflow law in 1955; Montana was last, enacting its first general law on instream flows in 1973.(200)
A basic problem with these state instream flow programs is their late inception. Many Northwest rivers were fully appropriated by the early 1900s; on such rivers, late twentieth-century water rights often receive no water, especially in the irrigation season. A junior instream water right on an over-appropriated river does have some benefits; it can keep the shortage from getting worse and may block certain transfers that could harm streamflows. But it does not stop senior water right holders from drying up a river.(201) In other words, instream water rights can protect existing streamflows but cannot necessarily restore them.
Recognizing this shortcoming, three Northwest states(202) have enacted laws allowing private water rights to be converted to instream use under certain conditions. Oregon's 1987 Instream Water Rights Act(203) allows any person to purchase, lease, or accept a gift of an existing water right and convert it to an instream water right, either permanently or temporarily.(204) Washington law authorizes its Department of Ecology to acquire water rights in certain river basins and convert them to instream use under a "trust water rights" program.(205) The 1995 Montana Legislature established two programs--one applying statewide, the other applying only to the Upper Clark Fork Basin--that allow a temporary change of water right for instream use "to benefit the fishery resource."(206)
Oregon and Washington have also provided a legal mechanism to allow a certain portion of water "saved" through water conservation measures to be dedicated for instream uses. The Oregon Conserved Water statute(2070 allots at least twenty-five percent of saved water to instream uses, and the percentage may be higher if public money finances more than twenty-five percent of the conservation measures.(208) Washington's trust water rights program provides that "net water savings" from conservation projects be treated as trust water rights, although these may be used for either instream or consumptive uses.(209) The rationale for these programs is as follows:
Historically, appropriated water which was conserved through efficiency
or not beneficially used was considered reduced waste and returned to the
stream for use by other water right holders or reappropriation by the state.
No means existed for redirecting the use of this water. Water not put to
beneficial use was considered forfeited. The trust water rights program allows
water saved through efficiency to be transferred to a new use, while
retaining the original priority date.(210)
Aside from a few recent, short-term water right leases in Oregon, however, little use has been made of these innovative programs to restore instream flows. Explanations for this lack of activity vary. Water users interested in making water available for instream uses may face uncertain results, indeterminate transaction costs, a potential reduction in property values resulting from an apparently smaller water right, and almost certain peer pressure from people and groups who believe that water should not be separated from the land. Incentives for instream water transfers, leases, and conservation projects have not yet overcome such obstacles, particularly because water users have very little to lose by maintaining the status quo.
2. State Water Planning Programs
All four Northwest states have laws requiring comprehensive state water resource planning.(211) In each case, the plans must be adopted by the state water resource agency, board, or commission. Each plan involves a mix of local public and state government involvement, with Washington's process being the most locally driven. Of the four statutes, Idaho's is the most detailed and prescriptive, while Washington's is the least so.(212) All are essentially similar, involving several common elements:
* Information gathering. Idaho, Montana, and Oregon all require that the responsible agency conduct certain studies as the basis for planning.(213)
* Comprehensiveness. The four statutes call for integrated and coordinated,(214) comprehensive(215) plans that address the use of all of the state's water resources.(216)
* Maximum development/use. All statutes but Washington's emphasize the desirability of maximizing the amount of water available for use by the people of the state.(217)
* Planning by basin. All four statutes contemplate that the state water plan will be developed at the basin or watershed level.(218)
* Public participation. Three statutes require a local public hearing before a basin plan is adopted, while the Washington statute provides for more general public participation.(219)
Despite these basic similarities in their statutes, the Northwest states produced four very different types of water plans. One major distinction between the four state water plans is their treatment of instream flows. The following subsections review selected water planning materials from each of the four states.
The current Idaho state water planning statute was adopted in 1988.(220) In 1978 the Idaho Legislature adopted the Water Resource Board's original water plan but specified certain "changes" that established state water policy on thirty-seven subjects. These subjects ranged from identifying unrecorded water rights, to protecting potential reservoir sites, to monitoring radioactive waste disposal.(221) Policy No. 1 is '"protection of existing water rights." Policy No. 6 states: "Water rights should be granted for instream flow purposes. The legislation authorizing this policy should recognize and protect existing water rights . . . ." Policy No. 32 sets the famous target flow of zero at Milner Dam on the Snake River.(222)
Under the 1988 law, the Comprehensive State Water Plan is to be written at the watershed or sub-basin level. The Idaho Water Resources Board is responsible for the plan, although local input weighs heavily in plan development.(223) These plans, not unlike the planning requirements under the National Environmental Policy Act,(224) consider the environmental conditions within a basin, discuss water resource issues affecting the area, and analyze alternatives.(225) In terms of "Actions and Recommendations," the plans focus heavily on designating particular stream reaches as natural or recreational.226) Within these reaches, the plans prohibit or limit such activities as the construction or expansion of dams, the construction of hydropower projects or diversion works, or the conduct of various activities within the stream channel.(227)
With respect to instream flows, the Middle Snake Plan identified minimum streamflows that have been established or applied for under Idaho law. It noted that the State Water Plan specifies a minimum flow of zero at Milner Dam.(228) The Middle Snake Plan also recognized, however, that the public interest requires increased flows in the Snake:
As a long-term goal, the Water Board will work toward higher river flows
during the summer months. The Idaho Water Resource Board would like to see
more than a zero flow at Milner and will continue to examine options to secure
flow throughout the year at the dam or main powerhouse. Increased flows would
improve some aspects of water quality and fish habitat, and restore some of
the scenic beauty to Twin Falls, Shoshone Falls, and many of the smaller, less
famous waterfalls within the reach. At this time, there is no ready mechanism
to provide this water. Increased irrigation efficiency could lead to increased
operational flexibility in the Snake River, and perhaps more water through
the Middle Snake reach during low-flow periods. . . .(229)
But while the Middle Snake Plan acknowledged the need for greater streamflows, its only recommendation was that the state study methods for increasing flows in the Middle Snake reach.(230)
The need for instream flow protection was a recurring theme of the Henry's Fork Plan. That Plan noted that irrigation water diversions create low flow problems for fish in parts of the basin, recommended an examination of the need for minimum flows, and stated that such flows should be sought where a need is identified.(231) The Plan also recommended that water of sufficient quantity and quality be protected for recreation.(232) However, the Henry's Fork Plan also supported further economic development of the Basin's waters, particularly for irrigation.(233) In general, the Plan placed greatest emphasis on new development projects; in assessing water supply and water conservation, the Plan devoted only four sentences to minimum streamflows but seven pages to potential new storage sites.(234)
The Montana statute does not provide the Montana Department of Natural Resources and Conservation with much guidance, except that the sections of the state water plan are to be developed by river basin.(235) Thus far, however, Montana's water planning has not proceeded that way. Instead, the state has produced the plan in sections addressing statewide issues, such as water storage, integrated water quality and quantity management, and drought management.(236) These sections identify and briefly discuss issues, declare state water policy on these issues in one paragraph, and set forth options and recommendations for resolving the issues.
The subsection on instream flow protection recognizes that Montana must do more to protect streamflows effectively. It adopted the following policy statement:
Instream flows are an important use of water, and mechanisms should be
developed and refined to protect and enhance instream resources. However,
instream flow protection activities must not adversely affect existing water
rights and should be weighed and balanced against alternative future uses of
The plan makes four recommendations: 1) revise the water rights permitting process to improve instream flow protections; 2) consider making instream water reservations more secure; 3) allow voluntary water right leases for instream uses; and 4) conduct research on matters related to streamflows.(238)
Montana now seems ready to move ahead with water planning at the river-basin level. The state intends to initiate pilot projects in one or two basins, beginning with the formation of basin advisory committees representing all affected water users and interests. The hope is that these local committees can address problems through a cooperative approach. The committees are to identify their basins' water resource issues, evaluate and select options to resolve them, and incorporate them into a basin plan. Such plans will be reviewed by the Department of Natural Resources and Conservation; upon approval, the plans will become part of the State Water Plan.(239)
Local water planning efforts are proceeding in roughly a dozen Montana basins, with various levels of state involvement and assistance. These basins include the Flathead, Musselshell, Muddy, Bitterroot, and Kootenai. Of these basin planning efforts, the Flathead is perhaps furthest advanced.(240)
In one Montana watershed, a local committee has already developed a plan that has essentially received legislative approval. The Upper Clark Fork River Basin Steering Committee produced a water management plan for that basin in December 1994.(241) The plan described the steps that were taken in developing the plan, including the public involvement, and discussed existing basin conditions in some detail. It also made recommendations on nine matters relating to existing and new water rights, water management, water quality, and instream flows.(242)
The Upper Clark Fork Plan acknowledged that irrigation creates a major problem of stream dewatering:(243) Over 471 miles of streams in the Basin, including nearly 93 miles of the Upper Clark Fork mainstem, are listed by the state as "chronic[ally] dewatered."(244) In response, the Plan recommended closing the Basin to most new waterlights, while protecting existing rights. It recommended a pilot program to allow the leasing of water rights for instream uses(245) and suggested that the Montana Department of Fish Wildlife and Parks "continue to seek willing landowners to help solve dewatering problems."(246)
Oregon's approach to basin planning is fairly similar to Idaho's approach. Statutes establish the basic policies under which the state water resources program is to proceed. As in Idaho, the first policy is protection of existing water rights.(247) Oregon law also favors "maintenance of minimum perennial stream flows sufficient to support aquatic life, to minimize pollution and to maintain recreation values . . . if existing rights and priorities under existing laws will permit."(248)
The Oregon water resources program is a collection of eighteen basin plans or programs, each adopted for a particular watershed.(249) Under these plans, the Water Resources Commission makes a series of findings regarding the water resources of the basin, existing instream and out-of-stream water uses, and possibilities for water demands and development in the future.(250) The primary result of basin programs is that waters from a particular source are "classified" for particular purposes-that is, new uses of water are allowed only for the purposes specified in the basin program.(251) For example, the South Coast Basin Program classified the waters of the West Fork Milicoma River and tributaries above Stall Falls for municipal, domestic and livestock uses, irrigation of lawns and noncommercial gardens not exceeding one-half acre in area and instream use for recreation, fish life, and wildlife.(252)
Most or all of Oregon's minimum perennial streamflows were adopted as a part of basin programs.(253) Minimum perennial streamflows are not water rights, but rather administrative rules protecting flows below specified levels, subject to certain exceptions.(254) In contrast, instream water rights are water rights for a given flow in a given reach with a definite priority date. The Water Resources Commission converted the vast majority of minimum perennial streamflows into instream water rights, as directed by statute.(255) The Water Resources Commission no longer sets new minimum perennial streamflows through the basin programs. Instead, it considers instream water right requests along with other water right applications.(256)
Oregon's basin programs address streamflows in several ways. For example, the Grande Ronde River Basin Program found that instream flows in the basin were insufficient to meet instream needs, and that existing consumptive water uses could cause "zero flows or flows approaching
the zero level during critical low flow periods."(257) This program also concluded that the 1961 minimum perennial streamflow for the Grande Ronde River was inadequate and that a state agency's 1985 minimum perennial streamflow request was "more appropriate for the support of aquatic life" than a previous request.(258) In addition, the Grande Ronde Program established minimum perennial streamflows in various sub-basins and stated that new appropriations would not be allowed when flows fell below those levels.(259) On the other hand, in the 1984 South Coast Basin Program, the Water Resources Commission rescinded two minimum perennial streamflows and reduced two others that had been established in the 1964 program, while retaining most of them and establishing two new ones.(260) Finally, both programs classified waters only for specified uses, and did so partly to protect remaining streamflows from impairment caused by new appropriations for other uses.
While Washington has statutes on water resource planning, a document known as the Chelan Agreement primarily guides the state's planning actions.(261) The purpose of the Agreement is to "establish procedures to cooperatively plan for the management of water resources in Washington State to best meet the goals and needs of all its citizens."(262) The Chelan Agreement resulted from a 1990 conference involving over 150 people from throughout Washington, representing agriculture, business, the environment, fishing; and recreation interests, along with state, local, and tribal governments.(263) A major impetus for the Chelan Agreement was the state's desire to resolve conflicts over tribal treaty fishing rights, as played out in the long-running U.S. v. Washington litigation.(264)
The Chelan Agreement calls for cooperative water resource planning at the river-basin level.(265) Eight interests, or "caucuses," must be invited to participate in the process: state, local, and tribal governments; agriculture; environment; sport/commercial fisheries; recreation; and business.266 Additional interests may gain "caucus" status by consensus of these groups or by petition to and upon approval by the Washington Department of Ecology (Ecology).(267) Each caucus chooses its own representatives.(268) One of the participating state, local, or tribal government entities plays a coordinating role.(269) Interested federal agencies are to be "invited to participate in whatever manner is dictated by that region."(270) The Chelan Agreement states a preference for consensus decisions, but also establishes how to proceed in the absence of consensus:
Each caucus will have one voice in decision-making. The planning group will
attempt to reach consensus whenever possible. In cases where consensus is not
possible, decisions will be made by a consensus of the government caucuses and a
majority of the interest group caucuses. Minority reports, if prepared, shall be
included in the plan document.
Where consensus among the governments (tribal, state, and local governments)
and/or a majority of the interests is not achievable, the Department of
Ecology shall assume the lead role in assuring that the plan is completed for
the pilot projects in a timely fashion, not to exceed twenty-four (24)
The regional groups are to prepare water resource management plans that must address, at a minimum: 1) ground water, 2) surface water, 3) consumptive needs, 4) nonconsumptive needs, and 5) the relationship between surface and ground water.(272) Ecology must review completed plans for compliance with applicable federal and state laws and regulations; it can accept or remand the plans, but may not change them.(273) Ecology and local governments must prepare and adopt any new regulations or ordinances needed to implement the plans.(274)
The Chelan Agreement required Ecology to select at least two pilot projects for regional planning.(275) Ecology selected the Methow Basin in north-central Washington and the Dungeness-Quilcene Basins of the Olympic Peninsula.(276) Plans have now been prepared for these basins,(277) and Ecology intends to proceed with rulemaking on both plans.(278) At the time of this writing, the Washington Legislature appeared likely to appropriate funds requested for the implementation of these plans.(279)
The Dungeness-Quilcene Plan makes a variety of findings and recommendations, many of which deal directly with instream flows. For example, the Plan recommends the setting of instream flows on certain rivers, the denial of new water rights in one area, and the use of water conservation and the trust water rights concept.(280) Even more remarkable is that the Plan contains an agreement among the various users to share shortages during periods of low water:
The gap between the needs of the fish expressed by recommended instream
flows, and the present instream flow after withdrawals for agriculture,
municipal, business and future growth needs is substantial. This is amplified
by the poor condition of fish habitat, the lack of conservation, the
inefficiency of irrigation delivery systems in some areas, and the other uses
which take water from the system. Under the gap strategy, the Regional
Planning Group agrees to acknowledge that a discrepancy exists, is likely to
continue indefinitely, and that to some extent the parties will have to live
with it. In this plan, the RPG makes recommendations intended to bring the
sides of the gap closer together. Through participating in shared sacrifice,
the members of the planning group have agreed to share the pain and share the
gain. When the weather and other conditions provide abundant flows, ample
water is available for all uses; when the opposite occurs, during times of
low flows and critical needs for both fish and human uses, ail sides agree to
restrict uses, and to share water equitably.(281)
In other words, the Dungeness-Quilcene Plan essentially contains an agreement to manage the Basin's water resources based on equity and shared sacrifice, rather than water right priorities.(282) The plan does not specify how the agreement was to be implemented.
The Methow Plan is somewhat less revolutionary but still progressive. One of its six major conclusions provides that "[i]nstream flow must be increased to improve fish and wildlife habitat and preserve and enhance the unique quality of the Methow Valley while allowing for growth."(283) New water uses must come from storage or from existing uses, through conservation, transfers, and agricultural improvements.(284) The Methow Plan also produced an interdependent package of recommendations to address the Basin's water problems. These recommendations include setting efficiency standards for domestic uses and alfalfa and orchard irrigation; establishing a "water bank" for water saved through conservation measures as the exclusive source of water for new uses; allocating saved water, with a ninety percent share for instream flows; targeting and increasing enforcement activities; and requiring measuring devices.(285)
E. Streamflow Protection as a Component of Watershed Management
A wide variety of watershed and water management activities are going on throughout the Northwest. Looking broadly at these activities, one could conclude that a unified and comprehensive approach to water and watersheds is possible. The basic elements already exist in many places. Federal and regional agencies are focusing on watersheds, with the goal of ecosystem management. All four states have streamflow protection laws, and all have water resource planning at the basin level, at least on a pilot basis. Local watershed groups have formed to address problems in many river basins, and Indian Tribes are actively involved in watershed management efforts at all levels.
Some of the local watershed groups are beginning to deal with streamflow issues. A few of these efforts--as in the Lemhi, Upper Clark Fork, Methow, and Dungeness-Quilcene Basins--have produced some initially positive results, at least on paper. In other areas, such as the Henry's Fork and Grande Ronde Basins, a framework is now in place that could produce future benefits for instream flows.
In those places where the cooperative local approach seems to be working best, a recurring theme is historic conflict.(286) In many of these basins, years of discord over water issues finally brought people to the table. This is true at least in the Henry's Fork, Methow, and Upper Clark Fork Basins.(287) Traditional adversaries such as irrigators and tribes, and developers and environmentalists, seem most likely to try cooperation when all else has failed, when all participants are sick of fighting, and when all sides have something to lose from the status quo.
Throughout the Northwest, water and salmon issues are highly controversial. Cooperation on these issues cannot always be expected, at least at the state and regional levels. For the reasons discussed above, however, the watershed approach seems likely to grow in popularity. A major unresolved question is whether these approaches will meaningfully address instream flows. The early indications from basins such as the Upper Clark Fork, Methow, and Lemhi offer some hope. And a few state and regional proposals recognize the need for watershed management to include instream flow restoration and protection.
Washington Governor Mike Lowry proposed legislation in 1995 to provide for genuinely comprehensive, statewide watershed management planning at the river basin level. This planning would be patterned after the successful Methow and Dungeness-Quilcene pilot projects, within the general framework of the Chelan Agreement. As stated in the governor's proposed legislation,
[s]uch plans will resolve uncertainties about water quality, water resources,
and habitat conservation measures necessary to preserve the environment,
provide economic prosperity, and avoid federal or judicial interventions
stemming from noncompliance with federal treaties and laws ....
. . .
It is further the intent to implement the plans through federal, state,
local, and tribal authority, including the laws related to water quality,
water allocation, public water supply, fish and wildlife protection, forest
practices, and local land-use planning. Watershed resource management plans
must therefore be comprehensive, addressing at a minimum water quality, ground
and surface water availability and use, economic development, and habitat
The plans would include recommendations on a wide variety of matters, including water use efficiency and conservation standards, water quality measures, instream flow requirements, metering and reporting requirements for new and existing water rights, conditions and limitations on new water rights, priorities for acquisition and use of trust water rights, and land use controls and incentives for habitat preservation and restoration.(289)
In Oregon, a diverse public and private working group(290) issued a report in 1992 that laid the foundation for the state's Watershed Health Program. Subsequent legislation directed the state to initiate the program using the 1992 report as "a framework and guide."(291) The primary focus of that legislation was establishing voluntary local watershed councils, which was one of the recommendations of the report. But the working group's report listed numerous other "proposed watershed management tools" and indicated that developing these tools was a high priority for successful implementation of a watershed management strategy. Many of these tools could directly or indirectly benefit instream flows, including 1) improving water use efficiency, 2) allocating a percentage of transferred water for instream uses, 3) imposing a public interest test on transfers, 4) requiring measurement and reporting of water use, and 5) improving enforcement to benefit instream flows.(292) These tools would bolster Oregon's existing, relatively progressive laws regarding instream flows, such as those allowing instream leases and transfers of water rights and allocating a portion of conserved water for instream use.(293)
The most ambitious proposal for comprehensive watershed management in the Northwest has come from Angus Duncan, former chair of the Northwest Power Planning Council (NPPC). In 1994, Duncan proposed a Columbia Basin Watershed Planning Council.(294) Duncan suggested the NPPC "be specifically charged by the U.S. Congress with setting forth a general plan for the conservation and efficient use of the waters and lands affecting those waters of the Columbia-Snake River Basin."(295) Duncan's proposal is truly far-reaching, involving Canadian and oceanic habitats as well as U.S. matters. It is equally expansive in the range of issues to be addressed: 1) water quality and water quantity, 2) consumptive and nonconsumptive water uses, 3) species conservation, 4) actions needed to achieve and maintain sustainability, 5) economic analysis, and 6) distribution of costs.(296)
These proposals have not fared well politically. Despite a cautiously worded letter of support from Senator Mark Hatfield (R-Or.),(297) Duncan's proposal proved to be a nonstarter. Most of the new tools proposed in the 1992 working group report on watersheds are not under active discussion in Oregon. That report is no longer the basis of Oregon's watersheds program, which now consists almost entirely of supporting local watershed councils and their chosen projects.(298) And Governor Lowry's proposal ran into trouble in a fractious Washington Legislature, which was unable to deal effectively with water issues.(299)
These political results are not surprising, given the anti-government attitude now prevalent in the Northwest. Any proposal that raises the prospect of regulation, or even hints at an increased state or federal role in natural resource management, is likely to go nowhere in the current political climate. At present, the major political push is for watershed strategies that are locally controlled, strictly voluntary, and purely cooperative.(300)
Such local efforts are vitally important because they can promote public understanding and involvement in watershed matters, can increase conservation activities on private lands, and can establish working relationships among institutions and people who formerly did not talk-either out of ignorance or antipathy. Perhaps most importantly, local watershed efforts can help build support for meaningful action, cooperation, and change. Without local support, most resource users will continue to distrust anything labeled "environmental"; even solutions beneficial to all sides, such as water right leases for instream flows, will be difficult to sell.
Equally important, however, these local initiatives must be linked with state, tribal and federal activities. Land management programs, water resource planning efforts, and instream flow laws all relate directly to watershed health. These activities should support local initiatives by providing information, resources, and a legal basis for management actions. Conversely, local efforts should support federal, state, and tribal goals and programs, particularly with respect to resources owned by the public such as water, fish and wildlife, and federal lands. Actions involving natural resources typically affect many interests-private resource users, local communities, Native Americans, and the public--and any watershed management effort must take account of all these interests, as well as the needs of future generations.
Finally, it is crucial that voluntary, cooperative, local efforts do not supplant existing laws. Implementation and enforcement of federal, state, and tribal laws must not be sacrificed for the sake of consensus.(301)
Watershed planning and management activities are moving ahead throughout the Northwest. Federal and regional agencies, state legislatures, Indian Tribes, local governments, and private citizens are embracing the watershed approach. The concept has grown in popularity for disparate and sometimes conflicting reasons. Agencies and conservationists perceive a need for a more comprehensive approach to resource management and species preservation. Local communities and resource users desire greater control, often as a means of protecting existing economic activities. All parties have their own reasons for pursuing consensus.
For legal and political reasons, however, many watershed efforts focus heavily on land use and deal inadequately with instream flows. These efforts often are not well connected to state programs for water resource planning and streamflow protection. Strengthening these connections may be difficult in the current political climate that is increasingly hostile to government natural resource management. Progress in such basins as the Methow, Dungeness-Quilcene, Lemhi, Henry's Fork and Upper Clark Fork offers some hope, but it is too early to declare victory in any of these places.
In considering the future relationships among ecosystem and watershed management, cooperative approaches to natural resource issues, and instream flow restoration and protection, a few cautionary notes are in order.
First, water law and water rights will impede progress. The prior appropriation doctrine, which is the core of Northwest water law, does not recognize the concept of watershed health. This doctrine allowed rivers and streams to be drained dry long before any state got around to protecting minimum flows. State water law and water rights will not likely be flexible enough to allow large-scale streamflow restoration, at least in the near future. And virtually every watershed management, instream flow, or basin planning effort is explicitly conditioned on protection of existing water rights.
Second, politics may change everything. The federal resource agenciest focus on ecosystems and watersheds may not last much beyond 1996. The current congressional majority clearly wants these agencies to focus primarily on commodity production. The same conservative political winds are blowing through Boise, Helena, Olympia, and Salem. Thus, federal and state agencies may place less emphasis on far-ranging resource protection strategies. On the other hand, obtaining consensus may become an even higher priority for federal and state agencies, in which case they are likely to rely all the more heavily on cooperative local approaches. Consensus may become harder to reach, however, as resource user groups believe they can get better results through the political process.(302)
Third, what works in one basin may fall in another. The results of cooperative resource management efforts depend on many factors, including history, resources, personalities, circumstances, and timing. Success in a particular river basin often cannot be replicated because it is so closely tied to a particular place, time, and group of people. Cooperative approaches have helped ease longstanding conflicts in basins such as the Henry's Fork and Clark Fork. But they have had mixed results, at best, in other contentious basins such as Oregon's Umatilla and Nevada's Carson-Truckee.(303) The optimism generated by progress in some basins is tempered by setbacks in others.
Fourth, planning is important, but implementation is crucial. Translating paper gains into watershed improvements will prove difficult in every case. The potential problems--practical, legal, political, and fiscal, to name a few--are diverse, numerous, and often concealed. If these problems cannot be resolved, frustration with the plan and the process will set in, and even the most heartwarming cooperative efforts may break down. The Dungeness-Quilcene Plan recognizes these pitfalls at its conclusion:
This plan now needs implementation. That implementation must be integrated
with Federal, Tribal and State and local watershed protection programs.... The
immense effort put into this plan by an participants must not be wasted; the
time is ripe to move forward in a coordinated effort to better protect and
manage our water resources on the eastern Olympic Peninsula.(304)
Fifth, these approaches are only now being tested. The majority of the Northwest's watershed planning and management efforts began only within approximately the past three years. Some of these newly sprouted programs, such as those in the Henry's Fork, Methow and Dungeness-Quilcene Basins, show promise but they have not yet had time to develop. Similarly, while various strategies exist to restore instream flows--some based on voluntary transactions, others on water law reform and enforcement--these approaches also have not been tried on a large scale.(305) Some of these projects and good ideas might work, but it is too soon to tell. A facilitator of the Henry's Fork Watershed Council said, "I still consider this a big experiment. I hate to have people call us a model, because that implies we've figured it out."(306)
In the Northwest, we are still figuring out how to resolve many difficult natural resource issues. But given our crisis over salmon, steelhead, and other fish, we clearly need new approaches. Experiments in watershed planning and management are certainly worth trying. If these experiments are to succeed, they must address streamflows effectively. Healthy watersheds, like rivers and fish, need water instream.
(1) See Northwest Power Planning Council, Columbia River Basin Fish And Wildlife Program 1-8 (Dec. 1994) [hereinafter Fish & Wildlife Program]
(illustrating alarming decline in salmon run populations). (2) A mayor focus of Snake River salmon recovery efforts has been on the operation of the hydro dams on the Columbia and snake River mainstems. This focus seems appropriate because studies show that these darns Kill both salmon smolts and adults L massive numbers. See Nat'l Marine Fisheries Serv., U.S. Dep't Of Commerce, Proposed Recovery Plan For Snake River Salmon V-2-3 to V-24 (Mar. 1995) [hereinafter Proposed Recovery Plan]. (3) Scott Sonner, Fish Agency Ignored Its Own Advice, The Oregonian, Feb. 25, 1995, at F1 (reporting that the U.S. Fish and Wildlife Service disregarded the advice of its scientists that the hull trout should be listed as a threatened species). (4) Oregon coastal coho runs hit a record low of about 140,000 fish in 1994, as compared to historic peaks of at least 1.7 million at the turn of the century. Joan Laatz, Oregon Rejects Protection for Wild Coho Runs, THE OREGONIAN, Feb. 23, 1995, at B3.
(5) The Clinton Forest Plan defines "ecosystem management" as "[t]he use of an ecological approach in land management to sustain diverse, healthy, and productive ecosystems. Ecosystem management is applied at various scales to blend long-term societal and environmental values in a dynamic manner that may be adapted as more knowledge is gained through research and experience. U.S. Forest Serv. & Bureau Of Land Mgmt., Final Supplemental Environmental Impact Statement On Management Of Habitat For Late Successional And Old-Growth Forest Related Species Within The Range Of The Northern Spotted Owl at glossary 5 (Feb. 1994) [hereinafter Clinton Forest Plan EIS]. The Clinton Forest Plan defines "ecosystem approach" as "[a] strategy or plan to manage ecosystems to provide for all associated organisms, as opposed to a strategy or plan for managing individual species." Id. (6) See Joseph L. Sax Et Al., Legal Control Of Water Resources: Cases And Materials 137-38 (2d ed. 1991) (explaining the prior appropriation doctrine).
(7) The U.S. Geological Survey estimates that irrigation accounts for nearly 88% of water withdrawals in the Pacific Northwest. Wayne B. Solley Et Al., U.S. Dep't Of The Interior, Estimated Use Of Water In The United States In 1990, at 12 (1993).
(8) A recent federal agency document explaining the Eastside Ecosystem Management Project relies heavily on diagrams to explain the following concept:
The general planning model for ecosystem management is iterative, containing
assessments, decisions, implementation, and monitoring. Dependent on
monitoring, changes in decisions and implementation could occur without new
assessments. Each element has strong tribal and public participation and
information components. Furthermore, the model is founded in natural resource
management ethics 'and consistent with ecosystem principles and ecosystem
management components. Science Interration Team, Eastside Ecosystem Management Project, Scientific Frame Work For Ecosystem Management In The Interior Columbia River Basin at vii, 15 (Oct.1994) (draft version 2) [hereinafter Science lntegration Team]
(final draft is forthcoming in spring 1996). This text is accompanied by a dynamic diagram of arrows indicating constant feedback. The four components of ecosystem management are an ecological approach, partnerships, participation, and scientific knowledge. These components are illustrated by a more static diagram. These agencies offered a less involved definition of ecosystem management in the Clinton Forest Plan EIS, supra note 5.
(9) Science Integration Team, supra note 8, app. A, at 65-67; U.S. Forest Serv. & Bureau Of Land Mgmt, Decision Notice/Decision Record, Finding Of No Significant Impact, Environmental Assessment, Interim Strategies For Managing Anadromous Fish-Producing Watersheds In Eastern Oregon And Washington, Idaho, And Portions Of California (Feb. 1995) [hereinafter PACFISH EA]. The Eastside project is a federal project that examines existing watershed conditions and management options for the interior Columbia Basin east of the Cascades.
(10) U.S. Forest Serv. & Bureau Of Land Mgmt., Record Of Decision For Amendments to Forest Service And Bureau Of Land Management Planning Documents Within The Range Of The Northern Spotted Owl (Apr. 1994). Even the Bureau of Reclamation, which has never been a paragon of holistic resource management, is now making ecosystem noises in the Northwest. In the words of Regional Director John Keys, "Reclamation welcomes the challenge of taking water management and supply into a new era-an era of greater awareness of and concern for the ecosystem, and melding the values and attitudes of many cultures-past, present, and future." John W. Keys, Salmon Recovery a priority for the Bureau of Reclamation, Idaho's Sockeye Scene, Summer 1994, at 6.
(11) PACFISH EA, supra note 9, at 23-24.
(12) Clinton Forest Plan EIS, supra note 5, at 2-17.
(13) For a thorough analysis of the Clinton Forest Plan's watershed provisions, see Henry Lacey, New Approach or Business as Usual? Protection of Aquatic Ecosystems under the Clinton Administration's Westside Forests Plan, 10 J. Envtl L. & Litig. (forthcoming 1996). (14) Clinton Forest Plan EIS, supra note 5, vol. 2, at B-91.
(15) Id. at B-93.
(16) Proposed Recovery Plan, supra note 2.
(17) Id. at ES-2
(18) Id. at ES4 to ES-7
(19) Id. at ES-4
(20) See id. at V-1-1 to V-1-67 (consisting of the Tributary Ecosystem Recovery Tasks).
(21) Id. at V-1-7 (citations omitted).
(22) Id. at V-147
(23) NMFS seems to have chosen the words "useful template" carefully, as the term appears three times in four paragraphs in the Proposed Recovery Plan's discussion of local watershed planning efforts. Id. at V-148 to V-149
(24) Id. at V-148
(25) Id. at V-149
(26) NPPC is a planning body established under the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. [Sections]839-839h(1994). The Council is made up of representatives appointed by the governors of Idaho, Montana, Oregon, and Washington. The Council attempts to balance the needs of the region's fish and wildlife against the maintenance of a cheap and dependable power supply.
(27) Fish & Wildlife Program, supra note 1.
(28) In the Columbia River Basin Fish and Wildlife Program, the Council provides:
The Columbia River Basin is a diverse set of local ecosystems
interconnected by the rivers, streams and creeks that flow through the system.
Managing the basin effectively requires a systemwide approach that recognizes
the importance of the health of the natural system.
The Council system goal is a healthy Columbia Basin, one that supports both
human settlement and the long-term sustainability of native fish and wildlife
species in native habitats where possible, while recognizing that where
impacts have irrevocably changed the system, we must protect and enhance the
ecosystem that remains. To implement this goal, the program will deal with
the Columbia Basin as a system
Id. at 2-1.
(29) Id. at 7-1
(30) Id. at 7-37 to 7-38.
(31) Id. at 7-34.
(32) Id. at 7-39 to 741
(33) Id. at 7-34 to 7-39.
(34) Id. at 740 to 743.
(35) Id. at 741 to 743.
(36) OR REV. STAT. [Sections]541.350-.395 (1995)
(37) The five voting members of GWEB (pronounced G-web) are the heads of the Oregon Environmental Quality Commission, the Oregon State Fish and Wildlife Commission, the Oregon State Board of Forestry, the Oregon State Soil and Water Conservation Commission, and the Oregon Water Resource Commission. The nonvoting members are the Governor's natural resources adviser (who chairs GWEB), the Oregon Director of Agriculture, and the director of the agricultural extension service at Oregon State University, plus representatives of the U.S. Forest Service, U.S. Bureau of Land Management, and U.S. Natural Resources Conservation Service (formerly Soil Conservation Service). Id. [SubSection] 541.360(2). (38) Id. [SubSection]541.355(2)(a)(A). Domestic, municipal, irrigation, power development, industrial, mining, recreation, wildlife, fish life, and pollution abatement uses are all "beneficial" by statute in Oregon. Id. [SubSection] 536.300(1).
(39) Watershed Health Program, Oregon's Watershed Health Program, Report Summary To The Oregon Legislative Assembly 9 (Feb. 1995) [hereinafter Oregon's Watershied Health Program] (on file with author).
(40) 1993 Or. Laws 601 (codified as amended in scattered sections of OR. REV. STAT. ch. 541 (1995))
(41) SWMG was abolished by the 1995 Oregon Legislature. 1995 Or. Laws 690, [SubSection] 1. SWMG comprised the Governor and the following state agency members: the Directors of the Departments of Administrative Services, Environmental Quality, Water Resources, Fish and Wildlife, Agriculture, Energy, Land Conservation and Development, Parks and Recreation, Economic Development, and Division of State Lands; the State Forester; the State Geologist; and the Assistant Director of the Health Division of the Department of Human Resources. OR. REV. STAT. [Subsection]536.100 (1993), repealed by 1995 Or. Laws 690, [Sections] 25, 26. (42) 1995 Or. Laws 690, [SubSection]2(1). (43) SWMG Policy Work Group, Proposal: A Watershed Management Strategy For Oregon (1992) (on file with author) [hereinafter SWMG Work Group Proposal]. For more information on the SWMG Policy Work Group and its report, see infra notes 290-93 and accompanying text.
(44) SWMG Work Group Proposal, supra note 43, at 7.
(46) Id. at 8. The seven functions were to 1) "[f]oster communication and cooperation among all interests within a watershed," 2) "[p]rovide a forum for conflict resolution and decision-making," 3) "[e]nsure a high level of citizen involvement in all aspects of decisionmaking," 4) "[p]repare and implement a Watershed Action Program," 5) [m]onitor program implementation and success," 6) "[s]eek funding," and n "[c]onduct all meetings as open public meetings." Id. (47) 1993 Or. Laws 601, [SubSection]3 (codified at OR. REV. STAT. [SubSection]541.388 (1995)). (48) Oregon's Watershed) Health Program, supra note 39, at 2. (49) Id.
(50) 1995 Or. Laws 187, [SubSection]4 (codifled as amended at OR REV. STAT. [SubSection] 541.370 (1995)). (51) Local watershed council members may represent local governments, federally recognized Tribes, public interest groups, industry, private landowners, state or federal agencies, academic or scientific organizations, or others. Id.[SubSection] 7 (amending 1993 Or. Laws 601, [SubSection] 3). (52) The state program shall provide that watershed councils develop local plans that may assess the condition of a watershed, create a watershed action plan, and develop a strategy for implementing it. Id. [SubSection] 6(1) (amending 1993 Or. Laws 601, [SubSection] 2). (53) "The program shall focus state resources on the achievement of sustainable watershed health, including funding major projects that contribute to the overall health of a watershed In addition, [GWEB] shall fund smaller, voluntary projects for watershed enhancement and for restoration of riparian areas and associated uplands." Id. (54) 1995 Or. Laws 187, [SubSection] 7(2). (55) The success of GWEB and the abolition of SWMG resulted from the agricultural community's view of these councils. Agricultural interests were comfortable with GWEB, which for years had simply funded local watershed projects, but distrusted SWMG because it had held up recognition of watershed councils that SWMG believed were too heavily weighted toward local economic interests. Interview with Doug Myers, Lobbyist for WaterWatch of Oregon, in Portland, Or. (Oct. 20, 1995).
(56)1993 Or. Laws 765, [SECTIONS] 103-108, 131;Budget Note S. 81, Senate Ways and Means Committee, 67th Oregon Legislative Assembly (1993); Telephone Interview with Mary Lou Soscia, Oregon Department of Water Resources (Mar. 13, 1995).
(57) Oregon's Watershed Health Program, supra note 39, at 4; see also Watershed Health Program, Monthly Project Status Report (Apr. 1995) (on file with author) (briefly describing 57 projects in the Grande Ronde Basin and 36 projects in the South Coast/Rogue Basin). Most of these projects involve such matters as public education, fish screening, riparian fencing, instream structures, and streambank planting
(58) 1995 Or. Laws 404, [SUBSECTION] 4.
(59) 1994 Wash. Laws 239.
(60) Id. [SUBSECTION] 3(1) representatives are from the following Washington State agencies: Commissioner of Public Lands; Department of Transportation; Department of Agriculture; Department of Ecology; Department of Fish and Wildlife; Department of Health; Department of Community, Trade and Economic Development; Interagency Committee for Outdoor Recreation; Puget Sound Water Quality Authority; and Conservation Commission. Id.
(61) Id. [SUBSECTION] 3(1)-(3)
(62) The legislature asked for a report on data collection and bureaucratic and funding matters. Id. [subsection] 4. The governor asked for a somewhat more action-oriented report on how to proceed with various aspects of watershed planning, implementation, and restoration activities. Washington Governor's Exec. Order No. 94-04, Coordinated Watershed Planning, Implementation, and Restoration for Fish and Wildlife [SUBSECTION] IV
(Apr. 1, 1994) [hereinafter Exec. Order 94-04].
(63) See Exec. Order No. 94-04, supra note 62, at 1.
(64) Montana, however, does have a renewable resource grant and loan program that, after 1993 statutory changes, has been used to fund watershed restoration projects and planning studies. Telephone Interview with Jean Doney, Montana Department of Natural Resources and Conservation
(May 4, 1995); see also Mont. Code Ann. [SECTIONS] 85-1-601 to 85-1-602 (1995)
(explaining purposes and objectives of the renewable resource grant and loan program).
(65) See infra part III.
(66) H. Con. Res. No. 52, 52d Idaho Legis., 2d Sess. (1994) [hereinafter Henry's Fork Resolution].
(67) Mont. Code Ann. [SUBSECTION] 85-2-338 (1995).
(68) See infra part II.A.4.a-b.
(69) Idaho Water Resources Bd., Comprehensive State Water Plan: Henry's Fork Basin 17 (1992) [hereinafter Henry's Fork Plan] (approved by the Idaho Legislature and codified at Idaho Code [SUBSECTION] 42-1734(A)
(1990 & Supp. 1995).
(70) Id. at 41.
(71) Id. at 56.
(72) Id. at 96.
(73) Telephone Interview with Jan Brown, Executive Director of the Henry's Fork Foundation and Co-Facilitator of the Henry's Fork Watershed Council
(Apr. 17, 1995).
(75) Henry's Fork Resolution, supra note 66.
(77) Henry's Fork Watershed Council The Henry's Fork Watershed Council (undated flyer) (on file with author).
(78) Interview with Jan Brown, supra note 73. Under the state's water planning laws, see infra part III.D.2.a, the Idaho Legislature approved the Comprehensive State Water Plan for the Henry's Fork Basin in 1993. See Idaho Code [subsection] 42-1734A (1990 & Supp. 1995).
(79) Henry's Fork Plan, supra note 69.
(80) Id. at 178-79.
(81) Upper Clark Fork River Basin Steering Comm., Upper Clark Fork River Basin Water Management Plan 29 (Dec. 1994) [hereinafter Upper Clark Fork Plan]. The Upper Clark Fork plan states:
More than a century of mining and smelting, agriculture and timber
harvesting, hydropower development, and population growth have impacted water
quality in the Clark Fork River in Montana The upper river has long been
polluted with toxic metals, sediment, and nutrients and has been subject to
significant dewatering. The consequences to the upper river are impaired
fisheries, excessive developments of river algae, and a contaminated public
(82) Id. at 31, 34.
(83) Id. at 30, 58
(84) Id. at 41. "Superfund sites" refers to areas designated on the federal priority list for hazardous waste cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. [SECTIONS] 9601-9675 (1988 & Supp. V 1993). (85) Upper Clark Fork Plan, supra note 81, at 20. (86) Id.
(87) Id. at 10-11; Telephone Interview with Bruce Farling, Montana Trout Unlimited and an original member of the Upper Clark Fork River Basin Steering Committee (Apr. 1995). The Committee's organic act, codified at Mont. Code Ann. [SUBSECTION] 85-2-338 (1995), was amended by the 1995 Mont. Laws 487, [SUBSECTION] 3. (88) Mont. Code Ann. [SUBSECTION] 85-2-338(1) (1995)
(89) Telephone Interview with Bruce Farling, supra note 87. The Steering Committee had 21 original members: nine represented irrigators, two represented environmental groups, three were locally elected officials, two represented electric utilities, one represented industry, three represented state agencies, one represented a municipality, and one represented the U.S. Environmental Protection Agency. Gerald Mueller, a contractor to the Northern Lights Research and Education Institute, facilitated the Steering Committee. Upper Clark Fork Plan, supra note 81, at 10-11.
(90) Mont. Code Ann. [SUBSECTION] 85-2-338(1)(a)-(i) (1995).
(91) Mont. Code Ann. [SUBSECTION] 85-2-338(2) (1991), amended by 1995 Mont. Laws 487, [SUBSECTION] 3. (92) See Upper Clark Fork Plan, supra note 81, at 4-7, 50-63 (outlining possible solutions to area's water problems).
(93) 1995 Mont. Laws 487.
(95) Endangered Species Act of 1973, 16 U.S.C. [SECTIONS] 1531-1544 (1994).
(96) Wallowa County/Nez Perce Tribe, Salmon Habitat Enhancement Plan 1 (1995)
(a flyer distributed at a presentation to the Umatilla Basin Watershed Council) [hereinafter Wallowa County Flyer]; see also Treaty between the United states and the Walla Walla, Cayuses, and Umatilla Tribes and Bonds of Indians in Washington and Oregon Territories, June 9, 1855, 12 Stat. 945
(1855) [hereinafter 1855 Treaty. (97) Wallowa County/Nez Perce Tribe, Salmon Recovery Plan at A-1 to A-8 (Aug. 1993) [hereinafter Wallowa County Plan].
(98) Wallowa County Commissioner Ben Boswell, Presentation to the Umatilla Basin Watershed Council (Mar. 28, 1995) [hereinafter Boswell Presentation]. Boswell did not state how many "extremists" were excluded or how they were so identified. He did not mention any of these "extremists" by name, but he clearly indicated that one of them was Andy Kerr, Wallowa County resident and Executive Director of the Oregon Natural Resources Council. (99) Wallowa County Flyer, supra note 96, at 1. (100) Wallowa County Plan, supra note 97.
(101) Id. at 16-85.
(102) Id. at 101.
(103) Wallowa County Forms Sub-Basin Group, Grande Ronde Watershed Report
(Grande Ronde Model Watershed Program, LaGrande, Or.), Fall/Winter 1993, at 2.
(104) See Proposed Recovery Plan, supra note 2, at V-1-49 (citing the Plan as an example of a comprehensive productive grass-roots process that developed strategies for the protection of local salmon populations); Fish & Wildlife Program, supra note 1, at 7-40 (applauding private efforts, including the Wallowa County Plan, that protect fisheries habitat in the region and that involve broad ranges of different affected interests). (105) Telephone Interview with Patty Perry, Program Coordinator, Grande Ronde Model Watershed Program (Apr. 24, 1995). The Wallowa County/Nez Perce watershed effort was a forerunner of the Grande Ronde program. In May 1994 the Grande Ronde Model Watershed Program produced a draft "Operations-Action Plan." Grande Ronde Model Watershed Program Operations-Action Plan (May 1994) (draft) [hereinafter Grande Ronde Watershed Program] (on file with author).
(106) The Yakama Indian Nation, formerly "Yakima," officially changed the spelling of its name in 1994. Act of Oct. 31, 1994, Pub. L. No. 103-434, [SUBSECTION] 1204(g), 108 Stat. 4667 (1994). (107) Yakima River Watershed Council, The Yakima River Watershed Council 2 (1994-96) [hereinafter Yakima River Watershed Council. (108) Telephone Interviews with Katherine Ransel, Member of the Yakima River Watershed Council, Co-Director of the Northwest Regional Office of American Rivers, Inc. (Apr. 19, 1995) and Walt Fite, U.S. Bureau of Reclamation, Yakima Office (Apr. 19, 1995). (109) Yakima River Watershed Council, supra note 107, at 1. (110) "The Council, as of October 1, 1994, had a membership of approximately 900 individuals, private and public corporate entities, federations and advocacy groups including the Yakama Indian Nation, agricultural producers, fruit packers, hop processors, environmental groups, business and financial institutions, government, electric utilities, local schools, and higher education." Id.
(111) The Council describes the board as "representative of a broad spectrum of communal interests, including schools, government, agriculture, food processing, timber, the environment, business, finance, fish, wildlife, electric utilities, the cultural, and the aesthetic." Welcome A Board!, Watershed Events (Yakima River Watershed Council, Yakima, Wa.), Oct. 1994, at 1 [hereinafter Welcome A Board!]. (112) Yakima River Watershed Council Named, Watershed Events (Yakima River Watershed Council, Yakima, WA) (undated) at 1.
(114) The Council provided:
Quantifying in-stream flows on an accurate, real-time basis, is an
essential first step in the process of identifying any solutions which
potentially would alleviate our perennial shortages. Without such an
established, accurate base line, any solution, whether it be conservation,
some form of storage, water transfers, market mechanisms, delivery system
enhancement, or improved watershed eco-system management, will have no basis
Welcome A Board!, supra note 111, at 1.
(115) 1855 Treaty, supra note 96.
(116) Confederated Tribes Of The Umatilla Indian Reservation, Columbia Basin Salmon Policy 2 (1995) [hereinafter Umatilla Tribes Salmon Policy].
(117) Telephone Interview with Todd Shaw, Staff Member, Umatilla Tribes Fishery Program (May 10, 1995).
(119) Id. The project was called the Wildhorse Creek Demonstration Watershed Project. Id. (120) Id.
(123) Grande Ronde Model Watershed Program, Program Charter (1993)
(on file with author).
(124) Meet the Board--Rick George, Grande Ronde Watershed Report (Grande Ronde Model Watershed Program, LaGrande, Or.), Fall/Winter 1993, at 3
(quoting Rick George of the Umatilla Tribes' natural resources staff).
(125) Umatilla Tribes Salmon Policy, supra note 116, at 1-16.
(126) Id. at 45, 10-11.
(127) See supra part II.A.4.c.
(128) See infra part III.D.2.d.
(129) The Columbia River Inter-Tribal Fish Commission (CRITFC) represents the Nez Perce, Umatilla, Warm Springs, and Yakama Tribes, while the Columbia Basin Fish and Wildlife Authority is a collective entity representing all the federal, tribal, and state fish and wildlife agencies working in the four major Columbia Basin states. The four Columbia River tribes published their own anadromous fish plan in 1995, taking a holistic approach to recovery of salmon, Pacific lamprey, and white sturgeon. Columbia River Inter-Tribal Fish Commission Wy-Kan-Ush-Mi Wa-Kish-Wit (Spirit Of The Salmon) (1995). (130) See, e.g., Scott Sonner, New Rules Proposed to Manage U.S. Forests, The Oregonian Apr. 15, 1995, at A12 (discussing criticism by environmentalists and industry regarding the Clinton Administration's proposal for forest management).
(131) Proposed Recovery Plan, supra note 2, at ES-4. "Assessments by researchers indicate that stream systems throughout California, Oregon, Washington, and Idaho have been degraded considerably by human-induced cumulative effects [including] [s]uch activities as livestock use, road construction, timber harvest, recreational use, channelization, and other watershed management projects and activities . . . ." PACFISH EA, supra note 9, at 10. (132) Water is not always recognized as a public resource, but the laws of Idaho, Montana, Oregon, and Washington all provide that the waters of those states are owned by the public. Idaho Const. art. XV, [sections] 1; Idaho Code [sections] 42-101 (1990); Mont. Const. art. IX, [sections] 3(3); Mont. Code Ann. [sections] 85-2-101 (1995); Or. Rev. Stat. [sections] 537.110 (1995); Wash. Rev. Code [sections] 90.03.005
(133) See, e.g., Joan Laatz & Richard Cockle, Eastern Oregon Ranchers Brace for a Fight, The Oregonian Aug. 13, 1994, at A1 (discussing Eastern Oregon ranchers' frustration with injunction that pulled loggers, cattle, and road-building crews out of two national forests in order to protect the endangered Snake River Chinook Salmon); Rob Eure, Idaho Insurrection, The Oregonian, Jan. 29, 1995, at A1 (discussing local opposition to an injunction issued to protect salmon by a federal judge in Pacific Rivers Council v. Thomas, 873 F. Supp. 365 (D. Idaho 1995)).
(134) Wallowa County, for one, clearly wants control over all the resources inside its borders. Voters there passed a referendum in 1994 purporting to seize control over federal lands within the county. See Bill Crampton, Sagebrush Revolt Carries Worthy Message, East Oregonian, Apr. 4, 1995 at 6A.
(135) A flyer on the Wallowa County/Nez Perce Tribe Salmon Enhancement Plan notes: Fish runs [of Snake River salmon, which would soon be listed under the Endangered Species Act] had dropped to 10 to 15 percent of historic numbers. This situation caused concern to the citizens of Wallowa County because of their desire to have viable fish runs return to the county and their realization that natural resource extraction activities on public land might be curtailed, causing a negative impact on the socio-economic health of the community. Wallowa County Flyer, supra note 96, at 1.
(136) Telephone Interview with Mary Lou Soscia, supra note 56.
(137) The makeup of local watershed councils was formerly subject to scrutiny by SWMG, a panel of ranking state officials. SWMG challenged the membership balance of some councils, which may have been a major factor in SWMG's legislative demise. See supra part II.A.3. A 1995 law essentially ratified all the existing council is regardless of their membership. See Or. Rev. Stat. [sections] 541.366(2)(b)(A) (1996). (138) Umatilla County Names Watershed Council Members, East Oregonian, May 16, 1994, at 3.
(139) Id. The Council was initially defensive about its makeup. See Letter from Umatilla County Board of Commissioners to Strategic Water Management Group (June 23, 1994) (on file with author). Recently, however, the Council has added new membership and ceased to require its members to represent particular interests, creaking a somewhat more balanced panel. Minutes of the Umatilla Basin Watershed Council (Mar. 28, 1996) (on file with author). (140) Meet the Board-Bill Howell, Grande Ronde Watershed Report (Grande Ronde Model Watershed Program, LaGrande Or.) Fall/Winter 1993, at 4 (quoting Bill Howell). (141) The Committee's members included three who represented grazing interests, two who represented "small woodlands," and one who represented the logging industry. However, both "labor" and "large landowners" had two representatives each, all of whom worked for Boise Cascade. And the representative of the Wallowa County Court was a long-time rancher and logger. The committee also had two representatives from the Oregon Department of Fish and Wildlife and one each from the U.S. Bureau of Land Management, the U.S. Forest Service, the Nez Perce Tribe, and business and environmental interests. Wallowa County Plan, supra note 97, at app. A.
(142) Key recommendations include the need to "maintain appropriate average density of trees," "encourage land managers to retain riparian fuel loads at not more than 35 tons/acre average," "encourage land managers to maintain upland fuel loads at an average of 25 tons/ acre or less," and "encourage land managers to harvest salvage as rapidly as possible while meeting environmental concerns." Id. at 89-90. (143) Id. at app. E
(144) Umatilla County Soil & Water Conservation Dist., Press Conference Statement on Formation of a Task Force to Create the Umatilla Basin Watershed Council (undated) (on file with author); see Steven Brown, Task Force to Oversee Basin Council, East Oregonian, Jan. 25, 1994, at 3.
(145) Fish & Wildlife Program, supra note 1, at 7-34 to 7-35.
(146) Henry's Fork Resolution, supra note 66.
(147) The Department of the Interior has pursued this approach in an attempt to resolve heated conflicts over management of federal grazing lands. See, e.g., Jill Lawrence, Babbitt Struggles to Reassure Western Officials, East Oregonian, May 21, 1994, at 2. (148) At least two Oregon watershed councils excluded potential members in the name of consensus. Applicants seeking positrons on the Umatilla Basin Watershed Council had to promise to work by consensus. Umatilla County Bd. of Commissioners, Watershed Council Application (Mar. 21, 1994) (on file with author). And local "extremists" were excluded from participating in the Wallowa County/Nez Perce Tribe Salmon Habitat Enhancement Plan. Boswell Presentation, supra note 98. (149) Wallowa County Plan, supra note 97, at 102.
(150) In a recent article, Russ Lehman, former counsel to the legislative Joint Select Committee on Water Resource Policy and a former water policy advisor to Washington Governor Mike Lowry, strongly argued that an obsession with consensus is crippling water management in Washington. As Lehman sees it, a major problem with consensus-based groups is that their members are all too willing to push their own special interests in other venues, thus undercutting the group and its search for consensus. Russ Lehman, Abdicating Responsibility for the Holy Grail of Consensus, 11 Illahee 18, 19-20 (1995). Perhaps even worse, he says,
is the arbitrary, politically motivated design of the "table" in the first
place: the groups chosen to participate often do not accurately or equitably
represent the public. In addition, these groups typically define consensus in
terms of unanimity--a convenient definition, whether stated or not, when the
primary reason behind the process is political cover. Thus it is not only
feasible but all too common for a small group that does not want change to, at
best, reduce a proposal to a nice-sounding but utterly worthless document or,
at worst, completely obstruct the process. This behavior makes filibusters in
the U.S. Senate look positively democratic.
Id. at 20-21.
(151) NMFS noted that the South Fork Salmon River Basin Plan and its implementing actions represent "the only documented instance of restoring degraded habitat in the Snake River Basin. Proposed Recovery Plan, supra note 2, at V-1 49.
(152) Charles Wilkinson, eminent scholar and critic of Western water law, explained the prior appropriation doctrine and itS place in the proverbial trig picture in Charles F. Wilkinson The Eagle Bird 43-61 (1992); see also Sarah F. Bates et. al., Searching Out the Headwaters (1993) (discussing the context and history of Western water issues).
(153) See Joseph L. Sax et al., supra note 6, at 137, 164-69.
(155) "'Within the Snake River system, the major consumptive use of water is for agricultural irrigation.' Water use may divert entire streams during low flow periods, thereby eliminating habitat." Proposed Recovery Plan, supra note 2, at V-1-5 (citation omitted) (quoting unidentified 1991 National Marine Fisheries Service document). (156) Solley et al., supra note 7, at 12.
(157) See, e.g., Steve Stuebner, No More Ignoring the Obvious: Idaho Sucks Itself Dry, High County News, Feb. 20, 1995, at 1, 8-11; Paul Koberstein, Draining Oregon's Rivers Dry, The Oregoniann Nov. 8, 1992, at A1; Nov. 9, 1992, at A1; Nov. 10, 1992, at E1 (a three-part series).
(158) Oregon Water Resources Comm., Oregon Water Plan 19 (June 24, 1988).
(159) Attachment to Letter from Antone Minthorn, Water Committee Chairman, Confederated Tribes of the Umatilla Indian Reservation, to Walt Fite, U.S. Bureau of Reclamation (July 29, 1994) (on file with author).
(160) Center for the Study of the Env't, Status and Future of Salmon of Western Oregon and Northern California: Findings and Options/Executive Summary at fig. 5A (Dec. 1994) (draft).
(161) Id. at 14.
(162) The Rogue River study found
[i]f low flow is a causal factor, then activities affecting low flow would be
important in the abundance of chinook. In addition to the obvious factor of
drought, low flow on the Rogue River is strongly influenced by direct human
factors that include dams and potential water removal for agricultural and
urban uses . . . .
. . . .
A plausible, but not definitive, argument can be made that the past 20
years' variation in chinook abundance on the Rogue and the Umpqua Rivers has
not been strongly affected by variation in forest cover within the watershed;
variation in chinook abundance may be directly affected by dams and removal of
water for irrigation.
Center for the Study of the Env't, Status and Future of Salmon of Western Oregon and Northern California: Findings and Options 72-73 (Dec. 1994) (draft). ((163) Phil Cogswell, Salmon Houndering in Low Data Level, Oregonian, July 5, 1994, at B6 (quoting Daniel Botkin). Botkin's statement was based on an earlier draft of the December 1994 study.
(164) Proposed Recovery Plan, supra note 2, at V-1-53.
(165) Fish & Wildlife Program, supra note 1, at 7-47 to 7-48.
(166) The "Riparian Goals" of the PACFISH strategy call for "instream flows to support healthy riparian and aquatic habitats, the stability and effective function of stream channels, and the ability to route flood discharges." PACFISH EA, supra note 9, at C-3 to C-4. (167) Grande Ronde Watershed Program, supra note 105, at 18. (168) The Umatilla Tribes' Salmon Policy concluded:
Inadequate instream flows are killing salmon by the millions, throughout the
Columbia Basin tributaries and in the mainstream of the Snake and Columbia
Rivers. Hydropower management changes the quality, timing and quantity of
river flow. Irrigation permanently removes large quantities of water from the
The water itself is sick. Grazing, timber, mining, agricultural and
recreational practices in the tributaries are drastically changing and damaging the health of our rivers.
. . . .
From time immemorial, water has been the giver of all life. We must honor and
protect it, from the tributaries to the ocean.
Umatilla Tribes' Salmon Policy, supra note 116, at 3-4.
(169) Fish & Wildlife Program, supra note 1, at 7-1.
(170) Id. at 7-47 to 7-8.
(171) Id. at 1-15.
(172) The most significant limitation on the Fish and Wildlife Program, however, is that state and federal agencies are not bound to follow it, but only take it into account "at each relevant stage of decisionmaking processes to the fullest extent practicable." 16 U.S.C. [sections] 839b(h)(11)(A)(u)
(1994) (173) Id. [sections] 839g(h)
(174) For examples of watershed management documents that explicitly provide for the protection of existing water rights, see Upper Clark Fork Plan, supra note 81, at 5, 52; Henry's Fork Resolution, supra note 66; Resolution from the Office of the Governor of Washington, Chelan Agreement 2 (Mar. 8, 1991) [hereinafter Chelan Agreement] (on file with author).
(175) See, e.g., Joseph L. Sax et al., supra note 6, at 137.
(176) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [sections] 1251(g) (1994) (noting that the "authority of each State to allocate quantities of water within its jurisdiction shall not be superseded").
(177) Reclamation and Irrigation of Lands by Federal Government Act, 43 U.S.C. [sections] 383 (1988) (noting that nothing in the Act shall be construed to affect any state law "relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder"). (178) Streamflow restoration and protection may be achieved through various legal means, including water law reform, improved enforcement, and the application of federal environmental laws. Though none of these approaches has been tried and proven on any large scale, they all hold some promise for improving streamflows. See generally Reed D. Benson, Water Rights Deals, Water Law Reform: Restoring Water to Northwest Rivers, 11 Illahee 12 (1995). (179) For a critical examination of Idaho irrigators' attitudes toward changing their water use practices to benefit streamflows, see Tim Palmer, The Snake River 83-139 (1991). (180) Laws passed in Idaho and Oregon allow irrigators to legitimize past illegal water transfers, so long as the changes do not cause harm to other water right holders. In Idaho's massive Snake River Basin Adjudication, statutes allow retroactive approval of certain unauthorized changes that have already occurred. Idaho Code Ann. [subsections] 42-1425 to 42-1426 (1990 Supp. V. 1995). Oregon allows irrigation districts to seek "remapping," so a district's water right will reflect its actual-rather than legally authorized--use of water. Or. Rev. Stat. [sections] 541.329 (1995); see also id. [subsections] 541.325-541.333. The 1995 Oregon Legislature continued this trend of protecting water uses whose existing practices were legally questionable. See, e.g., 1995 Oregon Laws 218. (181) See supra part II.B.2-3.
(182) Some watershed management efforts rely heavily, though not exclusively, on such measures as a means to provide instream flows. See, e.g., Grande Ronde Watershed Program, supra note 105, at 18. "Flows could be increased through changes in vegetative management, changes in irrigation practices, reestablishment of healthy wetlands, a variety of impoundments, etc." Id. This short list is interesting, both for the items it includes and for those it does not. "Changes in irrigation practices" could include a variety of measures, perhaps even drying up cropland. But the list does not mention even such obvious actions as purchasing or leasing water rights for instream use, improving water law enforcement, or implementing water conservation measures. Instead, it suggests building impoundments and changing land use practices, starting with "vegetative management." which could easily be read as "cutting trees." see supra notes 137-39 and accompanying text.
(183) For an explanation of why streamflow protection measures under state law are often inadequate to provide sufficient flows, see infra part III.D.1
(184) Idaho Dep't of Fish &c Game et al., Salmon River Subbasin Salmon and Steelhead Production Plan, A Columbia Basin System Planning Report 28 (Sept. 1, 1990).
(185) Id. at 54.
(186) Idaho Soil Conservation Comm'n, Lemhi, Pahsimeroi and East Fork of the Salmon River Model Watershed Planning Project (undated) (on file with author).
(187) Id. The model watershed project encompasses the Lemhi Basin along with the nearby Pahsimeroi and East Fork of the Salmon River Basins. The State of Idaho selected this basin, and the Idaho Soil Conservation Commission is the lead agency. Id.
(188) The Committee's vision is "[t]o provide a basis of coordination and cooperation 'between local, private, state, tribal and federal fish and land managers, land users, land owners and other affected entities to manage the biological', social and economic resources to protect, restore and enhance anadromous and resident fish habitat." Id.
(189) Lemhi Fish Flush--A Success Story, Model Watershed News (Lemhi, Pahsimeroi and East Fork of the Salmon Model Watershed Project, Salmon, Idaho), Fall 1994, at 1.
(190) Many of these steps relate to improving and consolidating irrigation diversion structures to reduce fish passage and water management problems. See Coordinator Comments, Model Watershed News (Lemhi, Pahsimeroi, and East Fork of the Salmon River Model Watershed Project, Salmon, Idaho), Winter 1995, at 3.
(191) Proposed Recovery Plan, supra note 2, at V-1-49 (citation omitted). The project coordinator for the Lemhi watershed project agreed that the Proposed Recovery Plan's conclusion regarding agricultural practices and salmon habitat in the Lemhi Basin was "probably true." Telephone Interview with Ralph Swift, Project Coordinator for Lemhi Watershed Project (Apr. 21, 1995).
(192) Telephone Interview with Jan Brown, supra note 73.
(193) It is possible, however, that Idaho's "water bank" may provide a means of making privately held water available for instream flows. See James D. Crammond, Leasing Water Rights for Instream [low Uses: A Survey of Water Transfer Policy, Practices, and Problems in the Pacific Northwest, 26 Envtl. L. 225, 233 (1996).
(194) Or. Rev. Stat. [sections] 537.348 (1995); Or. Admin. R. 690-77-070 (1993).
(195) Telephone Interview with Patty Perry, supra note 105. Perry stated that, in more than two years of working for the program, she could not recall such a closely divided vote on any project. Id. Although that specific project was not brought back to the board, a similar project involving Oregon Water Trust, the Bureau of Reclamation, and a private landowner was approved by the board in January 1996.
(196) Idaho Code [subsections] 42-1501, 1503 (1990). Any person may file a written request asking the Water Resource Board to consider appropriating a minimum stream flow. Id. [sections] 42-1504.
(197) Mont. Code Ann. [sections] 85-2-316(1) (1995) (allowing "[t]he state or any political subdivision or agency of the state or the United States or any agency of the United States" to apply to reserve instream flows). The six identified basins are the Clark Fork, Kootenai, St. Mary, Little Missouri, Missouri, and Yellowstone. Id. [sections] 85-2-316(2).
(198) Or. Rev. Stat. [sections] 537.336 (1995) (allowing the State Department of Fish and Wildlife, Department of Environmental Quality, and State Parks and Recreation Department to request instream water rights).
(199) Wash. Rev. Code [subsections] 90.03.247, 90.22.010 (1994).
(200) For considerably more history and greater detail on the instream flow laws and programs of Idaho, Montana, Oregon, and Washington, see Instream Flow Protections in the West (Lawrence J. MacDonnell & Teresa A. Rice eds., rev. ed. 1993).
(201) See, e.g., Water Resources Div., Dep't of Natural Resources & Conservation, Montana Water Plan: Management Section, Subsection: Instream Flow Protection 3 (Feb. 1989) [hereinafter Montana Water Plan: Instream Flow]. Instream resources are often threatened in streams that are subject to regular or periodic low flow conditions. The issue here is not how to maintain existing flow levels, but how to increase or enhance the flow levels in certain streams." Id.
(202) While Idaho law does not allow water rights to be directly converted to instream use, it may authorize instream rentals from the state's "water bank." See Crammond, supra note 193, at 233.
(203) 1987 Or. Laws 859 (codified at Or. Rev. Stat. [subsections] 537.332-.360 (1995)). (204) Or. Rev. Stat. [sections] 537.348(1) (1995)
(205) See Wash. Rev. Code [subsections] 90.38.040, 90.42.010-.090 (1994). The trust water rights program authorizes the Washington Department of Ecology to acquire water for public benefits through buying or leasing water rights, or through financing water conservation projects and receiving a portion of the water saved. A letter from the Washington Department of Ecology explained that
[t]he state has two trust water rights statutes. The Yakima river base 's
1989 statute is specific to that area. The second law, passed in 1991, calls
for the trust water rights program to be implemented in the regional pilot
planning areas of the Dungeness-Quilcene and the Methow river basin, as well
as in a limited number of other Water Resource Inventory Areas (WRIAs).
Letter from Hedia Adelsman, Washington Department of Ecology, to Interested Citizens, Agencies, Indian Tribes, Organizations (Feb. 8, 1993) (on file with author). The Yakima Basin trust water rights statute is codified at Wash. Rev. Code [sections] 90.38.040 (1994); the other statute, amended in 1993, is at id. [sections] 90.42.010-.090. (206) The statewide legislation is H.R. 472, 54th Leg., 1995 Mont. Laws 322 [sections] 1, while the Upper Clark Fork bill is S. 144, 54th Leg., 1995 Mont. Laws 487 [sections] 1. Montana law allows temporary changes to be approved for up to 10 years. Mont. Code Ann. [sections] 85-2407 (1995).
(207) Or. Rev. Stat [subsections] 537.455-.500 (19953
(208) Id. The statute was amended in 1993 to provide that the public share of conserved water must match the public portion of funding for the conservation measures, provided that both the public and the water user get at least 25%. Id. [sections] 537.470(3). The 1995 Oregon Legislature passed a bill that would grant the public an amount agreed upon by the water user and the public funding source. H.R. 2471, 68th Leg., 1995 Or. Laws. However, Governor John Kitzhaber vetoed the bill.
(209) See Wash. Rev. Code [sections] 90.42.040(1) (1994). Just water rights acquired by the state shall be held or authorized for use by the department for instream flows, irrigation, municipal, or other beneficial uses . . . ." Id. Yakima Basin trust water rights must be used either for instream flows or irrigation. Id. [sections] 90.38.040(3).
(210) Letter from Hedia Adelsman to Interested Citizens et al., supra note 205.
(211) Idaho Code [subsections] 42-1734A-1734B (1990 & Supp. 1995); Mont. Code Ann.[sections] 85-1-203 (1993); Or. Rev. Stat. [subsections] 536.300-.310
(1995); Wash. Rev. Code [subsections] 0.54.040-.045 (1994).
(212) In Washington, however, water resource planning is currently proceeding under the terms of the Chelan Agreement of March 8, 1991, which is considerably more detailed and prescriptive than the statutes of the four Northwest states. For more on the Chelan Agreement, see infra part III.D.2.d.
(213) Idaho Code [subsections] 42-1734A(1), 42-1734B(2) (1990); Mont. Code Ann. 85-1-203(1) (1995); Or. Rev. Stat. [sections] 536.300(1) (1995). The Oregon statute is particularly sweeping, directing the Water Resources Commission to
proceed as rapidly as possible to study: Existing water resources of this
and methods of conserving and augmenting such water resources; existing and
contemplated needs and uses of water for domestic, municipal, irrigation,
power development, industrial, mining, recreation, wildlife, and fish life
uses and for pollution
abatement, all of which are declared to be beneficial uses, and all other
related subjects, including drainage, reclamation, flood plains and reservoir
sites. Or. Rev. Stat. [sections] 536.300(1) (1995).
(214) Mont. Code Ann [sections] 85-1-203(2) (1995); Or. Rev. Stat. [sections] 536.300(2) (1995). Idaho and Oregon laws also support integration and coordination of water uses. Idaho Code [sections] 421734A(1)(b) (1990); Or. Rev. Stat. [sections] 536.310(2) (1995). (215) Idaho Code [sections] 42-1734A
(1990); Mont. Code Ann. [sections] 85-1-203(2) (1995); Wash. Rev. Code [sections] 90.54.040(1) (1994). (216) Idaho Code [sections] 2-1734A(1)(c)
(1990); Mont. Code Ann. [sections] 85-1-203(2) (1995); Or. Rev. Stat. [sections] 536.300(2) (1995); Wash. Rev. Code [sections] 90.54.040(1) (1994).
(217) Idaho's statute calls for "conservation, development, management and optimum use of all unappropriated water resources and waterways of this state in the public interest." Idaho Code [sections] 42-1734A(1) (1990). The Montana law requires the state water plan to "set out a progressive program for the conservation, development, and utilization of the state's water resources and propose the most effective means by which these water resources may be applied for the benefit of the people." Mont. Code Ann. [sections] 85-1-203(2) (1995). And Oregon's planning law states that it is in the public interest that augmentation of existing supplies for all beneficial purposes be achieved for the maximum economic development thereof for the benefit of the state as a whole." Or. Rev. Stat. [sections] 536.310(2) (1995).
(218) Idaho Code [sections] 42-1734A(2) (1990); Mont. Code Ann. [sections] 85-1-203(2) (1995); Or. Rev. Stat. [sections] 536.300(3) (1995); Wash. Rev. Code [subsections] 90.54.040(1), 90.54.045(2) (1994).
(219) Idaho Code [sections] 72-1734A(1) (1990); Mont. Code Ann. [sections] 85-1-203(2) (1995); Or. Rev. Stat. [sections] 536.300(3) (1995); Wash. Rev. Code [sections] 90.54.045(1) (1994). (220) 1988 Idaho Sess. Laws 370, [sections] 5 (codified at Idaho Code [subsections] 42-1730, 42-1731, 42-1734A-I (1990 & Supp. 1995)). (221) Idaho H. Con. Res. 48, 1978 Idaho Sess Laws 345, reprinted in compiler's note following Idaho Code [sections] 2-1736B (1990). (222) Id.
(223) In the Henry's Fork Basin, the Board formed a local advisory group to assist in planning. The Henry's Fork Advisory Group waS comprised of 13 members, who were either commissioners of one of the three affected counties, or private citizens representing a particular interest. Henry's Fork Plan, supra note 69, at 15.
(224) National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. [sections] 4321-4370a (1988). NEPA requires a detailed statement regarding environmental impacts and alternatives to a project. Id. [sections] 4332(C)(i), (iii).
(225) See, e.g., Idaho Water Resource Bd., Comprehensive State Water Plan, Snake River: Milner Dam to King Hill 7-72 (1993) [hereinafter Middle Snake Plan].
(226) See Idaho Code [sections] 42-1734A(4)-(7)
(227) Id.; see also Middle Snake Plan, supra note 225, at 75-79. The Henry's Fork Plan established 31 protected stream reaches. Henry's Fork Plan, supra note 69, at 162-77.
(228) Middle Snake Plan, supra note 225, at 24.
(229) Id. at 74
(230) Id. at 80.
(231) Henry's Fork Plan, supra note 69, at 45.
(232) Id. at 93.
(233) Id. at 65.
(234) Id. at 131, 13542. The plan's first recommended action is to "[e]ncourage water resource-related economic development funding for private, city, county, state and federal projects." Id. at 178.
(235) "The state water plan may be formulated and adopted in sections, these sections corresponding with hydrologic divisions of the state." Mont. Code Ann. [sections] 85-1-203(2) (1995).
(236) The Management Section was adopted in February 1989, comprising four subsections dealing with the Montana Water Information System, Agricultural Water Use Efficiency, Federal Hydropower Licensing and State Water Rights, and Instream Flow Protection. Two additional sections on Drought Management and Water Storage were adopted in December 1990. In November 1992, the Integrated Water Quality and Quantity Management section was adopted. These Sections comprise the Montana Water Plan. Water Resources Div., Dep't of Natural Resources & Conservation, Montana Water Plan (1989-92).
(237) Montana Water Plan: Instream Flow, supra note 201, at 2.
(238) Id. at 34
(239) Montana Dep't of Natural Resources & Conservation, Basin Planning undated flyer) (on file with author).
(240) Telephone Interview with Mary Vandenbosch, Montana Department of Natural Resources and Conservation (Apr. 28, 1995); see Flathead Basin Comm'n, 1993-1994 Biennial Report 14 (undated) (on file with author) (describing the initial phase of the Commission's watershed management strategy).
(241) Upper Clark Fork Plan, supra note 81; see also supra part II.A.4.b.
(242) Specifically, the recommendations addressed closure of the basin to new water rights; basin-wide and sub-basin management committees; protection of existing water rights; Forest Service reserved rights claims; structural and nonstructural water storage; water quality, including toxic metals, nutrient and nonpoint pollution; fishery restoration through streamflow and other habitat improvements; a pilot program to lease water rights for instream flows; and a continuing hold on agricultural and instream reservation requests. Id. at 4-7, 5063. Several elements of the Upper Clark Fork Plan were approved by the 1995 Legislature, although some were eliminated or altered. 1995 Mont. Laws. 487. The plan has also been approved by the Montana Department of Natural Resources and Conservation. Telephone Interview with Mary Vandenbosch, supra note 240 (May 1995).
(243) Upper Clark Fork Plan, supra note 81, at 30, 58.
(244) Id. at 30, 58, 70-72. Montana law requires the state to prepare a list of "chronically dewatered watercourses" using a specified set of criteria Mont. Code Ann. [sections] 85-2-150(1) (1995).
(245) Upper Clark Fork Plan, supra note 81, at 59-63.
(246) The plan also recommends that a pending request for an instream flow reservation, along with a competing reservation request for irrigation and storage, continue to be held in abeyance with their priority dates intact. Id. at 5743.
(247) Oregon law provides that existing rights are to be protected "subject to the principle that all of the waters within this state belong to the Public for use by the people for beneficial purposes without waste. Or. Rev. Stat. [sections] 536.310(1) (1995). 248 Id. [sections] 536.310(7)
(249) Portions of these programS are adopted as rules and appear in the Oregon Administrative Rules. Or. Admin. R. 690-501 to -518 (1994). 250 See Water Resources Comm'n, Oregon Water Management Program: State Water Resource Policies Basin Plans and Rules (1985) [hereinafter Water Resource Commission Findings] (on file with author) (containing findings of state Water Resource Board). 251 Or. Rev. Stat. [sections] 536.340(1) (1995)
(252) Or. Admin. R. 690-517-001 (1993) [hereinafter South Coast Basin Program].
(253) Interview with Karen Russell, WaterWatch of Oregon, in Portland, Or.
(Apr. 26, 1995). This occurred despite an Oregon law allowing minimum perennial streamflows to be adopted separately from basin programs. Or. Rev. Stat. [sections] 536.325(2) (1995). 254 Or. Rev. Stat. [sections] 536.325
(1995); (254) Or. Admin. R. 690-77-000(1) (1993).
(255) Or. Rev. Stat. [sections] 537.346 (1995)
(256) See id. [sections] 537.336; Or. Admin. R. 690-77-000(2) (1993).
(257) Water Resource Commission Findings, supra note 250, at 1-2. It also finds that restricting new water uses may protect flows in some areas, but "[w]here streams are seasonally overappropriated, the establishment of restrictive actions would have no major practical effect until additional flows became available from return flows of major upstream developments, storage, or the implementation of other measures." Id. at 3. (258) Id. at 5-6.
(259) Id. at 7 (Upper Grande Ronde), 11 (Middle Grande Ronde), 14 (Lower Grande Ronde), 18 (Wallowa), 21 (Imnaha).
(260) South Coast Basin Program, supra note 252, [sections] 690-517-003, tbls. 1-3.
(261) Washington's 1991 statute clearly contemplates that water resources planning should proceed on a regional basis under the Chelan Agreement model. Wash. Rev. Code [sections] 90.54.045 (1994)
(262) Chelan Agreement, supra note 174, at 1. The Chelan Agreement was never signed by anyone or adopted by the State of Washington. Telephone Interview with Lloyd Moody, Executive Fellow, Office of the Governor (Apr. 26, 1995).
(263) Washington Legislature Office of Program Research, The Chelan Regional Planning Model 1 (1994).
(264) Telephone Interview with Lloyd Moody, supra note 262. A footnote in the Chelan Agreement preamble discusses the relationship of the agreement to the litigation. Chelan Agreement, supra note 174, at 1-2; see United States v. Washington, 506 F. Supp. 187 (W.D. Wash. 1980), vac'd, 759 F.2d 1353 (9th Cir. 1985).
(265) "The planning region will be one or more Water Resource Inventory Areas
(WRIAs), unless there is a specific need for a smaller area within a WRIA which is a specific hydrologic area" Chelan Agreement, supra note 174, at 7. Ecology has established 62 WRIAs in Washington, corresponding to watersheds in the state. Wash. Admin. Code [sections] 173-500-040 (1995).
(266) Chelan Agreement, supra note 174, at 3.
(267) Id. at 6.
(270) Id. at 6-7.
(271) Id. at 12.
(272) The agreement specifies a number of items to be considered under each of these five main headings. "Water quality" and "conservation" are issues to be considered under both the ground water and surface water headings. Instream flows are to be considered under both surface water and nonconsumptive needs. Id. at 10-11. (273) Id. at 12.
(274) Id. at 13.
(275) Id. at 5. The Department was to select the pilot projects in cooperation with the Water Resources Forum, also established by the Chelan Agreement. The Forum is a consensus based policy advisory group with representation from the eight "caucuses" listed above. Id. at 3-4. (276) The 1991 Washington planning statute provided for planning on a pilot basis in two regions to be selected by Ecology. "One region shall encompass an area within the Puget Sound basin in which critical water resource issues exist. A concurrent pilot process may encompass a region east of the Cascade Mountains." Wash. Rev. Code [sections] 90.54.045(2) (1994). (277) Methow Valley Water Planning Pilot Project, Draft Methow Basin Plan (Jan. 27, 1994) [hereinafter Methow Plan (on file with author); Jamestown S'Klallam Tribe, Dungeness-Quilcene Water Resource Pilot Planning Project, Dungeness-Quilcene Water Resources Management Plan (June 30, 1994) [hereinafter Dungeness-Quilcene Plan] (on file with author). (278) The nature and timing of these rulemakings are not finally determined. It is likely, however, that the Dungeness-Quilcene plan will be adopted through a negotiated rulemaking involving the regional planning group. The Methow Plan will be the basis for an amendment to Washington Administrative Code [sections] 173-548, the current water resources program for the Methow River Basin. Telephone Interviews with Doug Rushton, Washington Department of Ecology (Apr. 28, 1995; May 9, 1995); Telephone Interview with Lloyd Moody, supra note 262.
(279) Telephone Interview with Lloyd Moody, supra note 262.
(280) Dungeness-Quilcene Plan, supra note 277, Executive Summary at xvi, xix, xxii. (281) Id. at xiv.
(282) Doug Rushton of the Washington Department of Ecology, who was heavily involved in the development of the Dungeness-Quilcene Plan, gave two primary reasons for the remarkable shared-sacrifice agreement. First, local tribes and irrigators in the area had historically cooperated, operating informally on a shared-sacrifice basis for several years. Second, strong individuals represented both irrigators and tribes on the Regional Planning Group. Rushton had particularly high praise for the vision and leadership of Roger Schmidt of the irrigation caucus and Ann Seiter of the tribal government caucus. Telephone Interviews with Doug Rushton, supra note 278.
(283) Methow Plan, supra note 277. at vii.
(284) Id. at vii.
(285) Id. at vii-ix; Telephone Interview with Dale Bambrick, Yakama Indian Nahon Fisheries Staff, Member of the Methow Planning Group (Apr. 27, 1995).
(286) Such is not the case in every basin. The Dungeness-Quilcene regional planning effort, for example, was based on years of cooperation between irrigators and Native Americans. See supra note 281 and accompanying text.
(287) See Telephone Interview with Jan Brown, supra note 73 (Henry's Fork); Telephone Interview with Dale sambrick, supra note 285 (Methow); Telephone Interview with Bruce Farling, supra note 87 (Upper Clark Fork).
(288) S. 5494, 54th Wash Legis., 1995 Regular sess. [subsections] 1, 2(1)
(1995). (289) Id. [sections] 9(3)
(290) The Strategic Water Management Group (SWMG) Policy Work Group comprised state and federal officials, agricultural representatives, environmentalists, cities and counties, and other water users. This group produced the SWMG Work Group Proposal, supra note 43. (291) For an explanation of the Watershed Health Program, SWMG, and the 1993 legislation, see supra part II.A.3.
(292) SWMG Work Group Proposal, supra note 43, at 9-10.
(293) See supra part III.D.1.
(294) Angus Duncan, A Proposal for a Columbia Basin Watershed Planning Council, 10 Illahee 287 (1994).
(295) Id. at 299.
(296) Id. at 299-300. Within this comprehensive ecosystem framework, Duncan proposed that "[i]ndividual subbasins--the Grande Ronde, the Lemhi--should be free to fashion watershed programs to meet their circumstances, consistent with regional standards that ensure basin-wide watershed health." Id. at 299.
(297) Hatfield stated that his purpose was "not to endorse this approach as the best and final word on the subject, but to encourage broad regional debate on the need for such new approaches to managing our Basin, and to solicit constructive commentary and alternative solutions." Letter from Senator Mark O. Hatfield to My Fellow Northwesterners (June 2, 1994) (on file with author).
(298) See supra part II.A.3.
(299) Telephone Interview with Lloyd Moody, supra note 262.
(300) This fact is best illustrated by the recently enacted amendments to Oregon's watershed programs, in which some form of the word "voluntary" appears eight times, "cooperate" six times, "partnership" four times, and "local" twenty-eight times. See 1993 Or. Laws 601 (H.R. 2215) and 1995 Or. Laws 187 (H.R. 3441) (both codified as amended in scattered sections of Or. Rev. Stat. ch. 541 (1995)). House Bill 2215 also provides: "State agencies responding to local watershed protection and enhancement efforts are encouraged to foster local watershed planning, protection and enhancement efforts before initiating respective action within a watershed." 1993 Or. Laws 601, [sections] 1(2)(c). (301) Russ Lehman has sharply criticized water officials in Washington for failing to enforce and uphold the laws, thus allowing continued paralysis in water management. "At every level of government, an almost total reliance on consensus-based processes has taken the place of decision and policy making." Lehman doesn't say whether this over-reliance on consensus is more a cause or effect of the paralysis, but it appears to be both. Lehman, supra note 150, at 19. (302) After Republican gains in 1994, Washington business and agricultural interests lost whatever enthusiasm they had for the Water Resources Forum, a multi-interest, consensus-based state water policy group formed under the Chelan Agreement. Telephone Interview with Lloyd Moody, supra note 262. Russ Lehman describes the political reality as "grotesque":
Those groups that have historically fought to keep the status quo--those
whom antiquated laws and policies have served very well--will be the first to
argue for consensus approaches when political power is held by those they
consider a threat to business as usual. When political tides change, however,
those recent converts to consensus revert to their old ways--aggressively
pursuing and advocating an agenda of resource exploitation.
Lehman, supra note 150, at 20.
(303) See Steve Meyers, Water Spreading Pact Breaks Down, East Oregonian, July 7, 1994, at A1; Jon Christensen, No Final Solutions for Farmers, High Country News, Apr. 3, 1995, at 23-24.
(304) Dungeness-Quilcene Plan, supra note 277, Executive Summary at xxiv.
(305) See Benson, supra note 178, at 12.
(306) Telephone Interview with Jan Brown, supra note 73.
Reed D. Benson, Reclamation Issues Director for WaterWatch of Oregon (Portland). B.S. 1985, Iowa State; J.D. 1988, University of Michigan. The author has worked as a lawyer in private practice, for the U.S. Environmental Protection Agency, and for the nonprofit Land and Water Fund of the Rockies in Boulder, Colorado. He has broad experience in western water law and has worked extensively for conservation groups on Northwest water issues. This Article was originally presented on May 20, 1996 at the Conference on Water Policy and Sustainability in the Columbia River Basin, sponsored by the Northwest Water Law & Policy Project of Northwestern School of Law of Lewis & Clark College.