Changing the river's course: western water policy reform.

Water policy has left an indelible mark on America's western landscape. During the settlement and development of the West, a set of water policies evolved to create institutions and enable construction of facilities that allocate, store, distribute, and manage water. The most stunning tangible manifestation of those policies is the built environment. Though less visible, the underlying legal and institutional framework also stands firm with its foundations deeply set. Either the built environment or the laws and institutions would be extremely difficult to remove or fundamentally change, but each must be reformed and operated differently to respond to the changing nature of the West. There is no better example of the impacts of water policy, and no clearer illustration of the needs and possibilities for reform, than the Columbia River.

The Columbia is one of the world's great rivers. It drains an area the size of France and has more than twice the flow of the Nile.(1) Explorers Meriwether Lewis and William Clark wrote in wonderment about the hordes of fish upon their first view of the upper reaches of the Columbia.(2) In 1805, they traveled down the Columbia to the ocean without a single obstruction.(3) The team only had to portage around Celilo Falls, the great narrows where the region's tribes speared migrating fish and sustained a satisfying life and rich culture.(4)

The Columbia: A Monument to Western Water Policy

Today, the Columbia River has the distinction of being the most developed river in the world. Only one fifty-mile stretch of its twelve hundred miles remains "undeveloped"--less than five percent of its length from the Bonneville Dam to the Canadian border.(5) Long steps of still water lie end to end. There are seventy-five major dams in the Columbia River system, including fourteen constructed in the mainstem of that mighty river.(6) The great hydro-electric dams of the Columbia enslaved the river for the sake of aluminum plants and hair dryers; millions of people now depend on the system for their electric power.(7) Each year, irrigators divert from the Columbia an amount of water greater than twice the entire annual flow of the Colorado River(8) turning deserts upstream at the base of the Rockies into gardens. The river also has been pressed into service to carry away wastes--sewage, toxics, salt, and silt.(9)

As throughout the West, the laws and water projects on the Columbia have spurred progress. For example, water project construction created jobs, and low power rates enhanced business expansion.(10) Also, greater crop yields through better irrigation enriched communities.(11) A Bonneville Power Administration publication a few years ago bragged that

[i]n little more than one generation Man has harnessed the tremendous water

power of the Columbia Basin . . . . [H]e has tamed floods, improved

navigation, and turned deserts into rich farmland . . . . [P]roduction of

low-cost electricity has been a major factor in the Pacific Northwest

transition from a regional economy based on agriculture and lumber to a more

balanced, widely diversified economic and social structure.(12)

This progress created costs and impacts that were largely ignored at the time the water laws were written and projects planned. The inexpensive electric power produced by the Columbia River system proved to be not so cheap after all. Although the price was low, the costs were high. Power only seemed cheap because consumers did not have to consider the inherent value of the salmon and the tribal societies that depended upon them. Consumers also could ignore the value of ecosystems, free-flowing rivers, and lost gene pools.

In recent years, billions of dollars have been spent and committed to rescuing the Pacific salmon.(13) Desperate efforts have included barging and trucking migrating juvenile fish around the dams, building fish ladders and elevators, and replacing waning natural fish populations with hatcherybred substitutes.(14) Meanwhile, plans are being drawn to sacrifice water, stored above dams for lucrative power generation and irrigation, by releasing it to restore some semblance of the river's natural flows during the times of the year when fish would benefit most.(15)

The most notorious tragedy of development on the Columbia is that three-quarters of the historical salmon population no longer can survive in the river.(16) Fish used to travel as many as nine hundred miles up the Columbia and Snake River system to reach their spawning grounds.(17) While much of their spawning habitat far upstream is in good condition, with some of it in wilderness areas or wild and scenic rivers, salmon can no longer get to these waters. Today, one or two surviving salmon, the last vestiges of their race, make news when they succeed in their struggle back to Redfish Lake in Idaho.(18)

As the Ninth Circuit said last year, "it is generally accepted that the Basin's hydropower system is 'a major factor in the decline of some salmon and steelhead runs to a point of near extinction.'"(19) However, big dams are not the sole reason that the salmon cannot survive. Fish habitat and migration are also threatened by small dams, stock-watering ponds, miners' tailing ponds, and irrigation diversion structures that glutted headwater streams and flooded spawning beds.(20)

With the demise of salmon populations came the demise of a lucrative and active commercial fishing industry that depended on the Columbia River fisheries.(21) The loss of fish-related jobs and businesses, often in families for generations, forced dislocations and suffering upon many communities. Perhaps most striking was the impact on traditional tribal societies. The salmon are the "buffalo" of the Northwest Indians.(22) Tribal society was tied to subsistence, commercial, and spiritual relationships with salmon, similar to the relationships that existed between the buffalo and the Plains Indians.(23) However, there are differences. The buffalo had virtually disappeared by 1883;(24) it has taken an additional century for salmon to be brought to the brink of extinction. Destruction of the buffalo was a purposeful enterprise for non-Indian society; destruction of the salmon was less purposeful, but it seems destined to become as severe as the near-extinction of the buffalo. The consequences for the tribes in both cases go well beyond the economic effects, eroding the very base of culture and community.(25)

The system of hydropower dams that was heralded as a great economic boon to the region is viewed these days with colder, more discerning eyes. Similarly, the big irrigation diversions and uses of the river, like logging and manufacturing, brought benefits to the area, but they can no longer be considered apart from their negative effects on the river's health. Clearly, the elaborate hydropower system on the Columbia was vastly over-built. It will never again be operated at its full, power-generating capacity because of the incredible destructive potential that the system holds. This failure has resulted in the current situation in which few people are seriously considering the eleven new hydro dams that have been proposed for the Snake River System.(26)

Water law and water policy are ultimately to blame for permitting and even encouraging what has happened to the Columbia system. Yet, I believe that the trend can be reversed on the Columbia and other western rivers by redirecting the traditional instruments of water law and policy--beneficial use, water projects, and watershed management--to serve modern values and fit modern conditions.

Fundamental Principles of Water Law: Rewarding Individuals Whose Efforts Serve the Public

Many western state statutes declare that "[b]eneficial use shall be the basis, the measure and the limit" of private rights in water.(27) Among people who compete to put water to a beneficial use, the earliest users have the best rights.(28) These simple rules sum up western water law, but their application has varied with changing conditions in the West.

What constitutes a beneficial use necessarily evolves over time with the needs and values of society. In the early days, the West was undeveloped, and water was relatively copious, though not evenly distributed. Water could be distributed in the best interests of society by allowing it to be committed to categories of use, like mining or agriculture, that were generally considered beneficial. Very early, it became necessary for the courts to compare uses and means of diversion to determine "reasonableness" and to weigh their relative efficiencies in accomplishing beneficial purposes.

The first cases that arose dealt with the prevention of "waste." As one early case said,

[i]t is elementary that the waters of the public streams of this state

belong to the people, and that appropriators acquire only a right of use.

It is also settled law that an appropriator is limited in his use of water to

his actual needs. He must not waste it. . . .(29)

A recent case has held that "[t]he owner of a water right has no right as against a junior appropriator to waste water, i. e., to divert more than can be used beneficially."(30) Therefore, beneficial use is a criterion that limits the amounts and uses of private water rights.

In 1993, the Washington Supreme Court was confronted with an appeal by Clarence and Peggy Grimes, who contested a referee's ruling in an adjudication that curtailed their right under Washington law to divert 3 cubic feet per second (cfs) based on uses going back to 1906 to only 1.5 cfs and limited their 1520 acre-feet storage right to 920 acre-feet.(31) The court upheld the reductions, stating that "[t]he key to determining the extent of plaintiffs' vested water rights is the concept of 'beneficial use'. . . . An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land."(32) However, the "amount of water necessary for a beneficial use" will be limited to a "reasonable" amount for the particular purpose.(33)

The early cases dealing with beneficial use (and the reciprocal concept of "waste") were decided in a simpler era than ours. Water was more plentiful and no one spoke up for fish or natural systems, let alone the raw beauty of a place. Today, the number and variety of competing uses have proliferated. Water users and water rights holders include fishers, boaters, and environmentalists. Although they are not always heard, there are also groups, like WaterWatch of Oregon,(34) who regularly raise issues concerning water quality and ecological integrity.

Modern courts recognize the force of changing values and expanding uses. In 1992, the Wyoming Supreme Court said that "'[b]eneficial use' is . . . an evolving concept and can be expanded to reflect changes in society's recognition of the value of new uses to our resources."(35) Similarly, the Idaho Supreme Court has said that "[w]hat is a beneficial use, of course, depends upon the facts and circumstances of each case."(36) And in Washington Department of Ecology v. Grimes,(37) the Washington Supreme Court linked the idea of beneficial use with other uses that may be possible: "A particular use must not only be of benefit to the appropriator, but it must also be a reasonable and economical use of the water in view of other present and future demands upon the source of supply."(38)

State constitutions and statutes in the West almost uniformly dedicate water to the public.(39) Accordingly, private water rights can be granted when the use is consistent with the "public interest" or "public welfare."(40) The public interest provisions in state constitutions and statutes potentially allow for a comparison of various benefits, leading to limitations on those that are less socially beneficial. For example, decision makers might opt for limiting agricultural uses to promote municipal uses, or fish and wildlife purposes might take priority over industrial or power uses. If water is a public resource, public agencies should have the power to decide whether a use is beneficial by balancing the consequences of a proposed private use of the water with a broader public interest. Officials must construe the meaning of "beneficial" in its full state law context. The context is one in which a right to water is being transferred from the public to private hands. The public trust doctrine expresses essentially the same notion: The public has a stake in all unappropriated water that cannot be defeated by official neglect.(41)

When applied to a request for new water rights, a request for changes of uses, or any other opportunity for state review, the doctrine of beneficial use should be an engine of the public interest. A progressive concept of beneficial use should influence all water decisions, including the hundreds of applications for new water rights pending in Oregon, Washington, and Idaho.(42)

Federal Water Development. Turning the Curse into a Blessing

After the turn of the century, states gladly let the federal government introduce national programs and supplant local initiative and traditional state control of water.(43) States were seduced by the idea of big spending and dreams of burgeoning economies. However, the price of receiving these subsidies included loss of state and local control as well as dramatic physical changes in the local environment; the Bureau of Reclamation (BOR) and U.S. Army Corps of Engineers (Corps) took over responsibility for planning and allocating much of the West's water. In its ninety years, BOR alone has constructed over six hundred dams and sixteen thousand miles of canals, attempting to correct the errors of nature's ways by delivering water where and when it was demanded.(44) Nowhere is the handiwork of federal water development more impressive than on the once mighty Columbia, the nation's second largest river.

The Columbia River's plumbing system is a spectacular feature of the Northwest's built environment. Unfortunately, this wonder of engineering turned out to be devastating for the natural environment, especially the salmon fisheries. When the National Marine Fisheries Service (NMFS) issued a biological opinion in 1993(45) stating that the Columbia River power generating system could operate without jeopardizing the Snake River salmon in violation of the Endangered Species Act (ESA),(46) the State of Idaho challenged the ruling.(47) This challenge resulted in the federal court throwing out the NMFS opinion, because it found that the federal agency had used data and modeling methods selectively in order to minimize the likelihood of salmon extinction.(48)

It is common in the West to think of Corps and BOR facilities as causes of environmental problems, not solutions. Dams and diversions are clearly "Public Enemy Number One" when it comes to destroying the salmon runs of the Columbia Basin.(49) Throughout the West, big mainstem dams are arguably monstrous destroyers of habitat and recreational opportunities. Anyone who has floated the Colorado River knows that there may or may not be a beach to camp on for the night because of power operations in the huge Glen Canyon Dam. The dam has stopped the flow of sediment through Grand Canyon and caused the water to be sent through the canyon in sporadic cycles corresponding to the demands of electricity users.(50) The river may be low and slow when you roll out your sleeping bag at dusk on a vestigial sandbar. By dawn, a raging river may be lapping around you.

A more optimistic way of thinking about the built environment, including the complex of dams, canals, and irrigation systems, is to consider these facilities as resources to be manipulated to satisfy current societal values. The Natural Resources Law Center (NRLC) at the University of Colorado School of Law has recently completed a study for BOR and the Environmental Protection Agency showing the potential for managing BOR facilities for ecosystem benefits.(51) Managers of several reclamation projects around the West are actively exploring new methods of operation and achieving new, publicly beneficial purposes never anticipated during the authorization and construction of these projects. In the upper Colorado River, loss of indigenous endangered fish species habitat is a serious problem that is being addressed,(52) in part, by releasing water from Flaming Gorge Dam on the Green River in Utah and Blue Mesa Dam on the Gunnison River in Colorado.(53) The quantities and times of releases correspond with the spawning and habitat needs of endangered squawfish, humpback chub, and bonytail chub.(54)

The endangered species problem in the Colorado River is also addressed as a by-product of salinity control programs that were designed to correct another environmental phenomenon exacerbated by the dams. Irrigation return flows were turning the river downstream so saline that water was becoming unusable for irrigation.(55) BOR launched multi-million dollar projects to reduce salinity levels and attack causes of salt loading.(56) Lining irrigation ditches and making the systems more efficient has reduced the salt loading as well as the quantity of water that needs to be removed from the river.(57) As it turns out, keeping water in the river also benefits the fishery.(58)

The upper Snake River provides another example. The Snake in Idaho was historically the richest habitat for salmon in the Columbia system, but is now virtually barren.(59) At least seven major reservoirs are strung out along the upper Snake. If they are operated so that the releases downriver are in sequence with the needs of salmon, they can be used to mitigate and in some cases enhance salmon migration.(60) The solution is complicated because BOR cannot simply open and shut at will the outlet works of dams that it owns. There are contracts for the delivery of water for irrigation and hydro-electric power generation. Thus, BOR has to pay for water it uses to maintain streamflows for fish.(61)

There are other problems in using facilities like those on the Snake to restore conditions needed for salmon. The amount of water needed for the river and its fishery may be solved by releasing water, but salmon respond to a particular water temperature that provides signals to them about when and where to go. Water stored at the bottom of a reservoir is colder than the water at the top. Some dams in the reclamation system were built to be drained fully, with outlet works at the bottom, so that cold water is typically released. Others are built for hydro-electric generation with high outlet works that provide warmer water. These designs may or may not coincide with temperature needs for fish. Modifying the dams is an expensive proposition. For instance, to change the release system at Shasta Dam on the Sacramento River in California for salmon needs will cost $80 million.(62)

Progress in using BOR facilities to accomplish broader ecosystem benefits is shown by the Yakima Project on tributaries to the Columbia in Washington. The Project enjoyed impressive crop yields with a four hundred percent increase in irrigated acreage.(63) Like so many of the Yakima Project's relatives throughout the West, however, single-minded efforts to improve agricultural yields limited both the vision and reality of the project.

In the Yakima River Basin, salmon populations have declined by approximately ninety-nine percent since the turn of the century.(64) The first wave of efforts to protect salmon involved the construction of fish ladders and passageways around the dams and screens across diversion structures.(65) These efforts were limited in their success and could never counter the assaults on natural systems from dams that allowed over-appropriation of water and placed multiple obstacles in the way of migrating salmon.

The pressure to improve river conditions to meet the needs of salmon was given legal force by the recognition and enforcement of Indian treaty fishing rights. Several years ago, the Yakama Indian Nation(66) received an award of over $2 million from the United States for the destruction of the tribe's treaty-secured fishing rights by the Yakima Project.(67) Recently, the state court ruled that the Yakama Nation has certain minimum streamflow rights that are necessary to sustain the treaty fishery.(68) Therefore, the Yakima Reclamation Project must be operated to ensure the instream flows necessary for the tribe's fishery.(69)

Litigation and lessons learned from destroyed habitats and fish runs in streams periodically dried out by irrigation demands expanded local consciousness. People in the Yakima Basin began to search for ways to ensure that' secure water uses could continue while fish habitat was improved. Now, BOR and water users have instituted a "flip-flop" method of operation.(70) Under BOR's former operations, the Cle Elum Dam held back water when irrigators did not need it and released it in huge amounts when irrigators called for it. This resulted in keeping water away from salmon spawning beds in the winter when the nests of salmon eggs (reads) needed to be washed over with water. Then the stream had artificially high flows during the irrigation season, sometimes destroying the reads. Now, by operating this dam in conjunction with another dam on a different arm of the Yakima System, releases can more closely mimic nature, and water deliveries can be satisfied by releasing water stored on the other tributary.(71)

Water resources in the Yakima Basin remain over-committed, following a century of later commitments that conflict with treaty obligations to the tribes. However, recent efforts are allowing tribal and irrigation rights to be satisfied. Currently, the dams can be operated to ensure that tribal rights to water and fish are fulfilled. However, this requires the acquisition of supplemental water. To address that need, a watershed council in the Yakima Basin is now considering proposals either to create a water banking scheme or implement a water leasing and transfer program.(72) Furthermore, recent congressional legislation enables more flexible use of BOR facilities on the Yakima, holding out hope for the fish and tribal fisheries. For instance, the Yakima River Basin Water Enhancement Project Act(73) authorizes federal funding to purchase or lease water directly, which would make the proposed water leasing or banking programs possible.(74)

The project is not perfect. The price tag is high, and the solutions challenge engineers. However, the required investments are necessary to complete the Yakima Project by bringing it to the point that its operations can be more or less sustainable.

Watershed Governance: From Political to Natural Boundaries

Agencies, districts, and cities that develop and supply water typically have jurisdictional boundaries that bear little relation to the scope of the impacts of the water decisions made by these organizations. Also, the allocation of agency authority may be inappropriate. For example, water quality and quantity are usually regulated under different laws and separate agencies.(75) Washington has been an exceptional bastion of sound judgment in this respect, but is considering a regressive bill that would put water allocation in an agency other than the Washington Department of Ecology, where it is now wisely lodged along with water quality regulation.(76)

Groundwater and hydrologically connected surface water are often subject to different laws.(77) Although some states are considering proposals to reverse this ignorance of hydrology in favor of conjunctive management of surface and groundwater, others are moving in the opposite direction.(78) For instance, the Oregon Legislature was actually considering a bill to segregate the Oregon Water Resource Commission's consideration of surface water from hydrologically connected groundwater.(79)

People with interests affected by water decisions are frustrated with the water decision-making processes in state agencies that exclude their participation or influence. State laws, such as those in Colorado, do not even allow consideration of factors related to the public interest when major water decisions are made.(80)

One response to the public's frustration with water institutions has been to create parallel and sometimes conflicting institutions. More often than not, they are the result of federal legislation. Since the 1970s, Congress has passed an impressive body of laws that regulate the impacts of water use and development. They include pollution laws like the Clean

Water Act(81) and implementing statutes in each state. Although a few states have their own programs, wetlands protection comes mainly through a federal permitting program for dredge and fill operations.(82) But these programs remain piecemeal, covering parts of water-related environmental problems in a rather uncoordinated way.

Federal environmental laws often import national standards inappropriate to the local situation. These laws sometimes sweep with too broad a brush, overlooking the peculiar needs of ecosystems and communities. They are also typically ineffective in dealing with cross-jurisdictional problems. Federal environmental laws are classic command-and-control regulatory programs that can operate in a heavy-handed way and are often, like litigation, confrontational and polarizing. There is a resulting backlash against regulation that has provoked efforts to overhaul environmental law. While there are legitimate criticisms,(83) I do not believe that these laws are broken and in need of fixing.

Whatever their flaws, the federal environmental laws, not state legislation, have taken the lead in responding to public fervor for environmental protection. Insistent on maintaining autonomy in water matters, states have attempted to mute these federal laws by persuading Congress to insert language in them providing that nothing shall interfere with the states' rights to allocate water.(84) Although the states could use their autonomy to tailor environmental controls to unique situations and water allocation schemes, they have been slow to address the kinds of public concerns that led to the enactment of environmental laws, especially in the field of water resources.

Finally, states are beginning to rise to the challenge and recognize that water law must serve more than those who happened to get to the water first. A few years ago, a group announced the "Park City Principles,n which called upon states to "fashion water laws and institutions responsive to the entire range of water values and interests, including those not traditionally recognized in water law and administration."(85) This group was not comprised of environmentalists or activists; it was a group convened by the Western Governors Association and the Western States Water Council, organizations that can properly be called the heart of the western water establishment. These organizations realized that "public values [are] now protected primarily under federal laws."(86) Therefore, the Park City Principles implicitly accepted that states had effectively abdicated responsibility, and if states truly want to play the primary role in water management, they must assume commensurate leadership, authority, and accountability.(87)

Some of the most promising responses to institutional problems in water policy have begun to come from the grass-roots. Locally-generated efforts are supplanting inadequate state allocation and regulatory systems. These efforts are bringing rationality to the application of federal laws. Consider the experience of people on the Henry's Fork of the Snake River.(88) A few years ago, the tensions in this Wild West region of Idaho (and a little piece of Wyoming) were at a breaking point. Ranchers and farmers had long lived there, but with people coming from the cities to seek beauty and solitude, a tourism business was growing up and some people were building second homes. Grazing practices and irrigation return flows were at odds with fish habitat.(89) The newcomers also favored planning, while a local irrigation district preferred a laissez-faire approach.(90) These two groups were on opposite sides of a proposed mandatory watershed planning bill before the state legislature.(91) The bill was defeated, but no sooner were the warring neighbors back home when disaster hit. A construction accident at the Marysville Hydro Project resulted in the release of a huge amount of sediment into Fall River.(92) At the same time on another part of the river, drought had lowered Island Park Reservoir, and managers decided it was good time to drain it, kill the "trash fish," and let some sediment out.(93) The two surges of sediment- some 70,000 tons-choked the river, impacting water users and fish life.(94) Everyone started blaming everyone else, but they soon realized that the problem may not have occurred and solutions would not have been nearly as difficult if they had been communicating with one another.(95)

Public meetings finally brought people together in crisis and anger.(96) However, they talked and ultimately agreed to start the Henry's Fork Watershed Council.(97) The two arch-rivals in the area, the Fremont-Madison Irrigation District and the Henry's Fork Foundation, a local environmental group, miraculously agreed to co-facilitate the new Council.(98) In the next legislative session, the two groups who had been fighting with one another went back to the legislature, this time side by side.(99) They asked for and received legislation that unanimously approved a. charter giving the Council a role in reviewing all agency proposals for any development or project in the watershed.(100)

Cooperative ventures are springing up in watersheds all over the West. Exasperated that western water law, environmental regulatory laws, and state and federal agencies do not provide for their interests to be heard, respected, and reflected in the decisions, people are venturing to solve their own problems. NRLC has been studying these efforts around the West during the last two years and has collected the stories of groups in eighty different watersheds who organized and took charge of their own destinies,(101)

Rather than waiting for someone from the federal or state government to come in and solve problems, local citizens are taking responsibility. In Colorado's Yampa River Basin, people are tackling issues that arise when entrenched farming and ranching interests conflict with interests in the growing area around Steamboat Springs.(l02) Concerns include recreation, established agricultural water supply rights, water quality, sewage disposal, an endangered fish recovery program, traffic, land use, housing, school crowding, and escalating social services costs.(l03) The formation of the Yampa River Basin Partnership grew out of a meeting that approximately 260 people attended in late 1994.(104)

Some states provide frameworks and incentives for watershed-based efforts. In 1993, Oregon passed legislation encouraging the creation of watershed councils.(l05) Oregon is leading the way for other states by supporting local efforts to solve problems on the ground with its Watershed Management Program.(l06) One example of the Oregon program in action involves the Illinois River, a tributary to the Rogue.(l07) Initially, efforts to work together in dealing with problems of water quality and deteriorating fish habitat were hampered by the polarization of commodity and environmental interests.(l08) After the Oregon Legislature passed the Watershed Management Program, the local Natural Resources District convened people and applied for a state grant from a fund provided by lottery proceeds.(l09) In addition to district board members, the Illinois Valley Watershed Council now includes representatives of the fishing industry, educators, miners, environmentalists, and the City of Cave Junction.(110)

Watershed-based decision-making tends to reflect greater diversity of public interests and can fine-tune solutions specifically to the affected place and people. The watershed is a flexible concept, because it is an amalgam of countless sub-watersheds nested together. Watersheds can be grouped or separated to define a geographic area that coincides with the sources and effects of a particular problem. Some have called this a "problemshed" approach.(111) Therefore, if an area has a soil erosion problem, the problemshed might include land draining into a tributary where logging is taking place and an adjacent tributary where irrigators are returning silty return flow. The problemshed should include the area affected as well as the source of the problem. Thus, the drainage downstream from an erosion problem might be included if a town there draws its drinking water from the stream or a community that stakes some of its livelihood on the benefits of fishing from the stream. Larger or smaller problems can be addressed by adjusting the scope of the watershed.

The watershed ideal has succeeded where traditional water law and institutions have faltered. Can it work for big problems? What about a problemshed as big as the entire Columbia? Congress created the Northwest Power Planning Council (NPPC) in 1980 after government agencies and power interests had made disastrous, single-minded decisions that resulted in a financial crisis for the power generating complex on the Columbia.(112) The power program was confronting bond failures for massive investments made in oversized, poorly designed nuclear power facilities and an ecological crisis created by a hydro-electric system that was being operated with insensitivity to the invaluable salmon stocks of the sprawling Columbia system. The world's greatest salmon river was crashing.

In an exercise of uncommon wisdom, Congress mandated that future energy planning for the Columbia system must be a process that includes the public and considers the full economic and ecological effects of various alternative sources of energy supply.(113) Congress required the creation of a program to reverse the effects of the string of giant dams on the waning fishery.(114) The Northwest Power Act has been somewhat successful, but the tragic condition of Northwest salmon fisheries overshadows the Act's success.(115) Two hundred fourteen stocks are threatened with extinction, and fishing in recent years is close to a standstill in response to requirements of the ESA.(116)

The old decision-making process regarding the Columbia had its faults. It excluded too many people and groups, and included a range of interests and values that was too narrow. This was typical of water planning in the past. The Northwest Power Act approach forced a wider, more integrated consideration of affected interests. It fell short, though, by failing to deal with a fuller panoply of influences on the life-cycle of salmon- issues like land use, water use, and water allocation. Also, the Ninth Circuit rejected the Council's Strategy for Salmon(117) and chastised it for failing to establish leadership, thereby "sacrificing the Act's fish and wildlife goals."(118) The Council has responded with a new plan that seems to be superior to the revised NMFS biological opinion(119) that replaced the one the court found deficient.(120)

Angus Duncan, former chair of the NPPC, has proposed a watershed council for the Columbia that could be created by broadening the Northwest Power Act to consider land and water management, expanding the power and fisheries purposes of the present Act.(121) It is a bold proposal that surely will be seen by some as threatening the institutional turf of existing agencies and governments, but it certainly deserves attention and serious consideration.

Conclusion

It is tempting to dismiss western water law because it has failed so many interests in the West, but that is neither necessary nor politically feasible. The beneficial use doctrine has been flexible in the past, and it can be in the future. Through that doctrine, the law of prior appropriation can assimilate today's vision of what is "beneficial."

The physical reality of the vast plumbing systems that mark the western landscape is too great to ignore. Some dams can and must go, but the dams that will be removed are few and far between.(122) The rest, including nearly all the big ones, cannot be wished away, and there is no monkey wrench big enough to fulfill Edward Abbey's fantasy(123) even if one could discount the social and natural destruction that would go with removing all the big dams. They can be retrofitted and re-operated. That is feasible, and it is happening.

The idea of using watersheds as geographic units for solving natural resources problems is timely. They capture the appealing and currently popular idea of decentralizing political control. The beauty of these locally based solutions is that they call on people to exercise the responsibilities of citizenship-to participate in finding solutions and making them work. Fulfilling this fundamental idea of citizenship and civic action calls for unparalleled participation by members of the public in their professional and citizen roles. In this way, the public can take back the water projects, water policy, and the rivers. The public can change the course of the Columbia, for the people and for the fish.

(1) For statistics on the length, basin size, average annual runoff, average flow, irrigated acres, and hydropower capacity of the Columbia River Basin, see Western Water Made Simple 4 (Ed Marston ed., 1987).

(2) 3 Original Journals of the Lewis and Clark Expedition: 1804-1806, at 122-24 (Reuben G. Thwaites ed, Arno Press 1969) (1905).

(3) Id. at 119-210.

(4) Id. at 122-24.

(5) Charles F. Wilkinson & Daniel K. Conner, The Law of the Pacific Salmon Fishery: Conservation and Allocation of a Transboundary Common Property Resource, 32 Kan. L. Rev. 17, 36-37 (1983). (6) Sarah F. Bates et al., Searching out the Headwaters: Change and Rediscovery in Western Water Policy 97 (1993). (7) Wilkinson & Conner, supra note 5, at 40 (relating that the hydro-electric projects of the Columbia supply more than 80% of the region's electrical energy). 3 See James L. Huffman, Agriculture and the Columbia River: A Legal and Policy Perspective, 10 Envtl. L. 281, 283 (1980); Western Water Made Simple, supra note 1, at 4.

(9) Charles F. Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West 192-93 (1992). 10 (10) Norman K. Whittlesey, Irrigation Development in the Pacific Northwest: A Mixed Blessing, 10 Envtl. L. 315, 317 (1980). (11) Id.

(12) Bonneville Power Admin., U.S. Dep't of Energy, Power and the Pacific Northwest: A History of the Bonneville Power Administration 101 (1976), quoted in Wilkinson, supra note 9, at 200.

(13) David Foster, Range of Once-Mighty Northwest Fish Dwindles, The Idaho Statesman, Sept. 10, 1995, available in WESTLAW, ALLNEWS Database.

(14) Wilkinson, supra note 9, at 195-96, 212; see also Michael V. McGinnis, On the Verge of Collapse: The Columbia River System, Wild Salmon and the Northwest Power Planning Council, 35 Nat. Resources J. 63, 70-73 (1995) (detailing the salmon enhancement measures undertaken by the Northwest Power Planning Council as part of a four-phase amendment to the Fish and Wildlife Program). (15) Wilkinson, supra note 9, at 211.

(16) Historically, an estimated 10 to 16 million salmon and steelhead inhabited the Columbia River system at one time. Today, an estimated 2.5 million fish are in the River annually. 1 Northwest Power Planning Council, Strategy for Salmon 5 (1992). (17) Bates et al., supra note 6, at 99.

(18) See, e.g., Rocky Barker, Saying Goodbye to the Bright Red Sockeye, High Country News, Apr. 22, 1991, at 9 (reporting that two adult sockeye made it back to Redfish Lake to spawn in 1989 and none returned in 1990); No Salmon Have Made It Back Yet to Redfish Lake, Idaho Statesman, Sept. 16, 1995, available in WESTLAW, ALLNEWS Database (reporting that "[n]o Snake River sockeye have made it back to central Idaho's Redfish Lake to spawn this year").

(19) Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1375 (9th Cir. 1994) (quoting 126 Cong. Rec. H10,687 (1980) (letter from Elmer B. Staats, Comptroller General)).

(20) Wilkinson, supra note 9, at 192-93.

(21) McGinnis, supra note 14, at 68 (discussing the substantial potential economic costs associated with the loss of Pacific Northwest salmon fisheries, which currently "produce over $1 billion in personal income per year and the equivalent of more that 60,000 jobs"). (22) See Mary Christina Wood, Fulfilling the Executive's Trust Responsibility Toward the Native Nations on Environmental Issues: A Partial Critique of the Clinton Administration's Promises and Performance, 25 Envtl. L. 733, 741-42 (1995).

(23) See Larry Barsness, Heads, Hides & Horns: The Compleat Buffalo Book 65-98 (1985).

(24) Id. at 132.

(25) Wood, supra note 22, at 741-42.

(26) For more on the proposed dams, see Stephen Stuebner, Idaho Savors Its Waters as Region Seeks More Hydropower, High Country News, Feb. 11, 1991, at 1.

(27) Or. Rev. Stat. [sections] 540.610(1) (1995); see also Ariz. Rev. Stat. Ann. [sections] 45-141(B) (1996); Nev. Rev. Stat. [sections] 533.035 (1991); S.D. Codified Laws [sections] 46-1-8 (1987); Wyo. Stat. Ann. [sections] 41-3101 (Michie 1995). (28) See, e.g., In re Water Rights of Deschutes River and Tributaries, 286 P. 563, 567 (Or.), modified, 294 P. 1049 (Or. 1930).

(29) Pulaski Irrigating Ditch Co. v. City of Trinidad, 203 P. 681, 682 (solo. 1922). 30 (30) Weibert v. Rothe Bros., 618 P.2d 1367, 1371 (solo. 1980).

(31) Washington Dep't of Ecology v. Grimes, 852 P.2d 1044, 1047 (Wash. 1993).

(32) Id. at 1049 (quoting Neubert v. Yakima-Tieton Irrigation Dist., 814 P.2d 199, 201-02 (Wash. 1991)).

(33) Id.

(34) WaterWatch of Oregon is a nonprofit environmental group that works at both the state and federal levels to restore and protect instream flows throughout Oregon. (35) In re General Adjudication of All Rights to Use Water in the Big Horn River System, 835 P.2d 273, 279 (Wyo. 1992).

(36) Idaho Dep't of Parks v. Idaho Dep't of Water Admin., 530 P.2d 924, 938 (Idaho 1974) (McFadden, J., dissenting) (quoting Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 1007 (Cal. 1935)).

(37) 852 P.2d 1044 (Wash. 1993).

(38) Id. at 1051.

(39) See, e.g., Ariz. Rev. Stat. Ann. [sections] 45-141 (1994 & Supp. 1995); Colo. Const., art. XVI, [sections] 5; Idaho Const., art. XV, [sections] 1; Mont. Const., art. IX, [sections] 3; Nev. Rev. Stat. [sections] 533.025 (1991); N.M. Const., art XVI, [sections] 2; Or. Rev. Stat. [sections] 537.110

(1995); Utah Code Ann. [sections] 73-1-1 (1989); Wash. Rev. Cook [sections] 90.03.010 (1994). (40) A. Dan Tarlock, Law of Water Rights and Resources [sections] 5.13 (1988). (41) The public trust doctrine imposes a duty on the state as a trustee of all public natural resources. William Goldfarb, Water Law 114 (1988). The state owes a fiduciary obligation to the trust beneficiaries--the general public--to maintain public uses unless diminishing them would achieve a countervailing public benefit." Id. Even though a state takes title to the land underlying its navigable waters, the lands--and waters--are held to a public trust, and any use must promote a public purpose. David H. Getches, Water Law in A Nutshell 224 (2d ed. 1990). The doctrine ensures the protection of several public rights, including navigation, commerce, fishing, recreation, and ecological preservation. Goldfarb, supra, 114; see, e.g., National Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709, 71924 (Cal.), cert. denied, 464 U.S. 977 (1983) (holding that, under the public trust doctrine, the State of California has a duty to protect the public's "common heritage" in the state's waters and may surrender that right "only in rare cases when the abandonment of that right is consistent with the purposes of the trust"). (42) See, e.g., Eric Goranson, PGE Water Claims Paise Alarin, The Oregonian, May 14, 1993, at C7 (reporting an estimated 3900 pending water rights applications in the state of Oregon); Cindy D. Brown, Growth Slows as Backlog Grows for State Water Permits, Morning News Trib. (Tacoma, Wash.), May 1, 1994, at B1 (reporting an estimated 1800 pending applications for water rights in the state of Washington); cf. In re SRBA, No. 39576, 1995 WL 515240 (Idaho Aug. 31, 1995) (holding that the public trust doctrine is not used to determine the priority of competing water rights claims under the special legislation authorizing the Snake River Basin adjudication).

(43) See David H. Getches, Water Planning: Untapped Opportunity for the Western States, 9 J. Energy L. & Pol'y 1, 12 (1988) (describing the scope of federal involvement in water planning).

(44) See Bureau of Reclamation, U.S. Dep't of Interior, Summary Statistics 1 (1991).

(45) National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion on the Federal Columbia River Power System (1993). Section 7 of the Endangered Species Act requires federal agencies proposing to take action that may adversely affect a listed species to consult with the relevant federal fish and wildlife agency (NMFS in the case of salmon) to ensure that the proposed action is not likely to jeopardize the continued existence of the species or its critical habitat. 16 U.S.C. [sections] 1536(a)(2) (1994). As part of the consultation process, NMFS is required to issue a biological opinion detailing how the proposed action affects the species. Id. [sections] 1536(b)(3)(A). If NMFS believes the action would jeopardize the species, it must suggest "reasonable and prudent alternatives" that would avoid jeopardy. Id. (46) 16 U.S.C. [subsections] 1531-1544 (1994)

(47) Idaho Dep't of Fish & Game v. National Marine Fisheries Serv., 850 F. Supp. 886 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995).

(48) Id. at 899-900.

(49) See supra note 19 and accompanying text.

(50) Clayton L. Riddle, Protecting the Grand Canyon National Park from Glen Canyon Dam: Environmental Law at Its Worst, 77 Marq. L. Rev. 115, 124-25 (1993).

(51) Natural Resources Law Ctr., University of Colorado, Restoring the West's Waters: Opportunities for the Bureau of Reclamation (forthcoming 1996, to be published in two separate volumes) [hereinafter NRLC Report I and NRLC Report II]. (52) Larry MacDonnell, The Upper Colorado River Basin, Colorado, in NRLC Report II, supra note 51, at 5-23 to 5-27.

(53) U.S. Fish & Wildlife Serv., U.S. Dep't of the Interior, What has this Program Accomplished?: Recovery Program for the Endangered Fishes of the Upper Colorado 8 (Summer 1994).

(54) MacDonnell, supra note 52, at 5-26 to 5-27.

(55) Id. at 5-12 to 5-16.

(56) Id.; see also Colorado River Basin Salinity Control Act of 1974,43 U.S.C. [sections] 1571 (1988) (directing the Secretary of the Department of Interior to establish salinity control programs in the Colorado River Basin to improve and enhance the quality of the water). 57 MacDonnell, supra note 52, at 5-27 to 5431. 58 Id. at 5-23 to 5-27.

(59) Teresa Rice, The Upper Snake River Basin, Idaho, in NRLC Report II, supra note 51, at 2-19 to 2-20.

(60) Id. at 2-26 to 2-29.

(61) See, e.g., id. at 2-29 (explaining that BOR must lease or purchase water released for the benefit of salmon migration from area water banks in the Upper Snake River Basin in Idaho). (62) See Beth Doherty, Shasta Dam, Central Valley Project, Sacramento River, CA, in NRLC Report I, supra note 51, at 15-20.

(63) Larry MacDonnell, The Yakima Basin, Washington, in NRLC Report II, supra note 51, at 1-33.

(64) Id. at 1-13 to 1-16.

(65) Wilkinson, supra note 9, at 195-98, 200.

(66) In 1994, the tribal council of the Yakama Indian Nation changed the spelling of its name from "Yakima" to "Yakama" to reflect the spelling in its treaty with the government. See Wood, supra note 22, at 763 n.139.

(67) Yakima a Tribe of Indians v. United States, 20 Ind. Cl. Comm. 76, 84 85 (1968).

(63) Washington Dep't of Ecology v. Yakima Reservation Irrigation Dist., 850 P.2d 1306, 1317 (Wash. 1993); see also Kittitas Reclamation Dist. v. Sunnyside Valley Irrigation Dist., 763 F.2d 1032 (9th Cir. 1985) (holding that the Yakama Nation has a right to maintain instream flows for the protection of fisheries).

(69) Yakima Reservation Irrigation Dist., 850 P.2d at 1318.

(70) MacDonnell, supra note 63, at 1-31 to 1-33.

(71) Id.

(72) Id. at 1-34 to 1-35; Interview with Larry MacDonnell, Principal, Sustainability Initiatives, in Boulder, Colo. (Nov. 29, 1995) (providing information about current water banking proposals in the Yakima Basin).

(73) Pub. L. No. 103-434, tit. XII, 108 Stat 4526, 4550 (1994).

(74) Id. [subsections]1203(i)(3). 75 See generally David H. Getches et al., The Unfinished Business of Water Protection (1991) (examining and suggesting approaches to address the relationship between current water quality problems and the laws governing allocation and use of water L the West).

(76) Wash. S.B. 5517, [subsections] 1, 54th Leg., Reg. Sess. (1995) (creating a 10-member Water Resources and Water Quality Commission to take over much of Ecology's authority).

(77) Tarlock, supra note 40, [subsections]4.03.

(78) See, e.g., Neb. L.B. 108, 94th Legis., 1st Sess. (1995) (providing for the management of integrated ground and surface water resources); see also Jeffrey Fereday, Conjunctive Ground and Surface Water Management in Idaho, Big River News, Spring 1995, at 11 (discussing the recent litigation and the adoption of rules by the Idaho Department of Water Resources regarding conjunctive management of ground and surface waters); Musser v. Higginson, 871 P.2d 809, 812 (Idaho 1994) (holding that the state engineer lacks discretion to avoid enforcing a call for water by a senior surface user that would shut off all water supplies to junior well-pumpers).

(79) Or. H.B. 3091, 68th Legis. Assembly (1995) (vetoed by the Governor on July, 21, 1995).

(80) See Colo. Rev. Stat. Ann. [sections] 37-92-102 to -103 (West 1990); see also In re Application for Water Rights of the Bd. of the County Comm'rs of County of Arapahoe, 891 P.2d 952, 971 (solo. 1995) (holding in part that Colorado law does not require a water court to consider environmental factors, such as effects on wildlife, habitat, recreation, and water quality, in determining whether to grant a conditional water right decree).

(81) Federal Water Pollution Prevention and Control Act (Clean Water Act), 33 U.S.C. [sections] 1251-1387 (1994).

(82) Id. [subsections]1344

(83) Arizonans argue against the federal government's insistence on having the state set water quality standards for a dry wash that flows only in flood times. Also, water rights holders along the Upper Colorado River, who cannot take any more water out of the river because flows are now too low to protect the squawfish, may have a reason to ask that the federal government take a fair share of the burden of recovering endangered fish that a massive federal fish poisoning program brought to the brink of extinction several years ago. Paul B. Holden, Ghosts of the Green River: Impacts of Green River Poisoning on Management of Native Fish, in Battle Against Extinction: Natived Fish Management in the American West 43 (W.L. Minckley & James E. Deacon eds., 1991); Richard S. Wydoski & John Hamill, Evolution of a Cooperative Recovery Program for Endangered Fishes in the Upper Colorado River Basin, in Battle Against Extinction, supra, at 123.

(84) See, e.g., 33 U.S.C. [subsections] 1251(g) (1994) (declaring that federal regulations may not supersede, abrogate, or impair each state's authority to establish and allocate quantities of water within the state's jurisdiction); Pacific Northwest Electric Power and Conservation Act (Northwest Power Act), 16 U.S.C. [subsections] 839g(a)(2) (1994) (providing that the Northwest Power Act may not affect or modify a state's right to"develop and implement plans and programs for the conservation, development, and use of resources").

(85) D. Craig Bell et al., Retooling Western Water Management: The Park City Principles, in Water Law Trends, Policies & Practice 347 (Kathleen M. Carr & James D. Crammond eds., 1995).

(86) Id. at 350

(87) Id. at 349

(88) See Natural Resources Law Ctr., University of Colorado, the Watershed Source Book: Watershed-Based Solutions to Natural Resource Problems 2-15 to 2-18 (1996) [hereinafter The Watershed Source Book].

(89) Id. at 2-16 to 2-17.

(90) Id. at 2-15.

(91) Id.

(92) Id.

(93) Id.

(94) Id.

(95) Id. at 2-18 .

(96) Id. at 2-15.

(97) Id. 98 Id. 99 Id.

(100) Id.; see Idaho H. Con. R. 52, 52d Legis., 2d Sess. (1994).

(101) The Watershed Source Book, supra note 88.

(102) Id. at 2-214.

(103) Id. at 2-214 to 2-215.

(104) Id. at 2-214.

(105) 1993 Or. Laws 765, [subsections]104 (codified at Or. Rev. Stat. [subsections] 541.345 (1995)).

(106) Or. Rev. Stat. [subsections] 541.345 (1995)

(107) The Watershed Source Book, supra note 88, at 2-68.

(108) Id.

(109) Id.

(110) Id.

(111) See, e.g., Charles H.W. Foster & Peter P. Rogers, Federal Water Policy: Toward an Agenda for Action 104 (1988); Robert H. Nelson, Government as Theatre: Toward a New Paradigm for the Public Lands, 65 U. Colo. L. Rev. 335, 357 (1994); William Goldfarb, Watershed Management: Slogan or Solution?,21 B.C. Evtl. Aff. L. Rev. 483, 484, 497-501 (1994).

(112) Pacific Northwest Electric Power and Conservation Act (Northwest Power Act), 16 U.S.C. [subsections] 839b(a) (1994). The Northwest Power Planning Council is the popular name for the Pacific Northwest Electric Power and Conservation Planning Council created under the Northwest Power Act.

(113) Id. [subsections] 839b(g).

(114) Id. [subsections] 839b(h).

(115) See Willa Nehlsen et.aL, Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, 16 Fisheries 4 (Mar.-Apr. 1991).

(116) Id.

(117) Northwest Power Planning Council, supra note 16.

(1180 Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371, 1395 (9th Cir. 1994); see Northwest Power Planning Council, Resident Amendments to the Columbia River Basin Fish and Wildlife Program (Phase 4) (1993).

(119) National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion on the Federal Columbia River Power (1995).

(120) See David M. Howitt, An Analysis of Salmon Recovery Programs, Big River News, Spring 1995, at 3 (offering a comprehensive comparison of NPPC's Strategy for Salmon and the NMFS 1995 biological opinion in the areas of drawdowns, transportation, spills, and costs).

(121) Angus Duncan, Proposal for a Columbia Basin Watershed Manning Council, 10 Illahee 287, 299-302 (1994).

(122) See generally River Voices, Fall/Winter 1995 (entire journal devoted to the issue of dam removal as a viable restoration strategy for western rivers).

(123) See Edward Abbey, the Monkey Wrench Gang (1975).

David H. Getches, Raphael J. Moses Professor of Natural Resources Law, University of Colorado School of Law. This Essay is an edited and expanded version of a speech presented on May 20, 1995 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.