Drafting from an overdrawn account: continuing water diversions from the mainstream Columbia and Snake Rivers.

I. INTRODUCTION

The Columbia River System is an exhausted resource. Out-of-stream consumptive uses have drained the river to a state of crisis: in 1891 and 1992, the National Marine Fisheries Service (NMFS) listed several species of Snake River salmon as endangered under the Endangered Species Act (ESA).(2) In its listing decisions, NMFS cited water withdrawals in the Columbia and Snake Rivers and inadequate state regulatory programs governing water allocations as factors contributing to species decline.(3) In 1993, as required under section 7 of the ESA,(4) NMFS consulted with the federal agencies that operate the Columbia River power system and then issued a biological opinion identifying minimum flows in the Snake and Columbia Rivers as necessary for successful downstream migration of salmon.(5) Unfortunately, in 1994, flows in the Snake and Columbia Rivers were far below the minimums specified by NMFS.(6) (Columbia River flows for the spring migration were more than ten percent below target flow levels, while Snake River flows for the summer migrations were short by more than twenty-five percent.(7) The inadequate 1994 flows attest to the exhausted state of the river system and the need for states to make instream flow protection a true priority.

An essential first step toward protecting salmon runs is to halt new water withdrawals; since the ESA listings, Washington, Oregon, and Idaho have each enacted moratoria on the issuance of water withdrawal permits in their respective states.(8) Each state's moratorium differs from the others. The main purpose of Idaho's moratorium is to mitigate drought conditions, and thus it only incidentally helps salmon; however, the purpose of Oregon and Washington's moratoria, however, is specifically to protect salmon.(9) Oregon and Idaho's moratoria include tributaries, while Washington's moratorium does not.(10) Idaho's moratorium has a retroactive effect on water right applications already filed with the Idaho Water Resources Department (IDWR), while the other states grandfathered applications filed before their moratoria became effective.(11) Under Oregon's moratorium, the Oregon Water Resources Department (OWRD) may issue permits to new water use applicants only if the Director determines the proposed use is consistent with the Fish and Wildlife Program of the Northwest Power Planning Council (NPPC).(12) Washington and Idaho do not base their decision making on consistency with NPPC's Program.(13) Although each state's approach to water management is different, the end result of all three moratoria is the same: more flows in the mainstem Columbia and Snake Rivers, although the increase may be insufficient to protect the endangered salmon.

An examination of recent water diversions illustrates the need for more effective instream flow protection in the mainstem Columbia River.(14) Recent efforts to manage water resources have been effective in ratcheting down diversions of much-needed mainstem river flows; water users have diverted 26.9 cfs(15) as a result of new water right permits with priority dates subsequent to the moratoria.(16) Washington has not allowed any new consumptive use appropriations from the mainstem, but its moratorium does not apply to tributaries.(17) Oregon has approved diversions totaling 3.9 cfs from the Columbia, while Idaho has allowed diversions totaling 23 cfs from the Snake River.(18) Notwithstanding the moratoria, however, state water agencies are still approving diversions of water that should be left instream to promote the salmon recovery effort.(19)

Despite NMFS's finding that water withdrawals negatively affect salmon,(20) and despite the failure to meet flow level requirements during the spring and summer salmon migration periods of 1994,(21) the Northwest states continue to allocate a significant amount of water from the Columbia River System. As a result, the states' voluntary efforts to promote salmon recovery may be insufficient to avoid federal interference--the ESA could curtail the states' discretion over water appropriation.(22)

This Article takes a close look at the restrictions imposed on applications for water rights in the Northwest states and the exceptions that allow new water users to divert water from the Columbia River Basin. Part II describes the historic imbalance between fish runs and water diversions that challenges effective management of the Columbia River Basin. Parts III, IV, and V examine the moratoria enacted by Washington, Oregon, and Idaho, respectively, and critique their effectiveness in augmenting flows in the mainstem Columbia. Part VI briefly explores whether the issuance of new water appropriations in the Columbia River Basin violates the ESA and, if so, the potential consequences. Part VII concludes that water agencies in the Northwest are contributing to the salmon recovery effort but should account for the maintenance of the status quo of water appropriations.

II. THE HISTORIC IMBALANCE BETWEEN FISH RUNS AND WATER DIVERSIONS

The Columbia River System is a multiple-use resource.(23) Although many of the river's uses are complementary, certain interests conflict. Specifically, salmon runs compete with out-of-stream uses. As a result, salmon runs have declined steadily since the development of the Columbia River System.(24) Prior to development, the River supported the largest salmon populations in the world.(25) Today, however, the salmon runs are only a fraction of their historic numbers.(26) While the salmon's migratory needs have remained unchanged over time, the migration corridor has changed dramatically. Once a free-flowing river, today the Columbia River System is a series of flow-controlled reservoirs. Mainstem Columbia River reservoirs reduce the river's flow velocity. Irrigation withdrawals similarly reduce mainstem river flows. Because smolt migrate passively, they depend heavily on water currents for transportation downstream. Their timely and successful seaward migration is thus closely linked to river flows.(27) Slow fish passage through the river system increases the exposure time of out-migrating juvenile salmon to predation, higher temperatures (which in turn increase the predation rate and the susceptibility of salmon to disease), and water quality problems.(28) Higher temperatures and decreased water quality resulting from low flows also threaten the health of returning adult migrants.(29) Although reservoirs adversely affect fish flows, they are crucial to ensuring an adequate supply of water for the mid-April through late-September irrigation season in the Columbia River Basin.(30)

Irrigation is a prime use of the Columbia River water. Irrigators divert 6 percent of the Columbia Basin river flows, irrigating approximately 7.8 million acres of land for uses ranging from agriculture to recreation sites and other nonagricultural uses.(31) Agriculturalists in arid parts of eastern Washington, northeastern Oregon, and southern Idaho depend on the water to produce alfalfa, apples, corn, grapes, peas, potatoes, wheat, and a vast assortment of other crops.(32) These growers have argued that moratoria on new water appropriations severely limit their economic growth.(33) Municipal water officials have joined the opposition to the moratoria, contending that they cap municipal growth.(34) Indisputably, the moratoria interrupt a long-standing tradition to favor development over instream resource protection.(35)

Water resource agencies have historically managed the Columbia River in a manner that favors out-of-stream consumptive uses;(36) as a result, salmon runs have suffered.(37) Western water users divert water from streams for beneficial uses, and the principle of "first in time, first in right" governs the priority of the water right.(38) Historically, the state water agencies in the Northwest deferred to agricultural and municipal uses, freely granting out-of-stream consumptive use permits.(39) This practice has led to the overallocation of many streams and has contributed to the decline of the salmon runs.(40) Instream water rights and minimum stream flows only infiltrated the doctrine in recent decades.(41) As a result of the states' late start on instream resource protection, provisions reserving water instream for fish habitat are junior to many out-of-stream water rights that precede them chronologically and therefore merit seniority over these more recent rights.

A. Accounting for the Historic Management Imbalance

The Endangered Species Act (ESA)(42) salmon listing allows affected states to develop comprehensive state programs to protect flows for listed fish;(43) if the states fail to develop such a program, the National Marine Fisheries Service (NMFS) must use its authority under the Act to attempt to achieve adequate protection.(44) Even before the listing of several Columbia River salmon species, the Northwest began developing a regional salmon recovery plan at its "Salmon Summit," a conference that included federal, state, and local interests.(45) Following the Salmon Summit, the Northwest states, together with NMFS and the region's congressional delegation, called on the Northwest Power Planning Council (NPPC)(46) to expand the scope of its plan to encompass all river uses--not just power production--and devise a comprehensive salmon recovery strategy.(47) NPPC amended its Fish and Wildlife Program to make nonbinding recommendations for other river uses.(48)

In its ensuing 1992 Strategy for Salmon,(49) a new section of the Fish and Wildlife Program, the Council recommended reducing salmon harvest,(50) reducing reservoir pool levels,(51) controlling predation,(52) improving hatchery practices,(53) and significantly increasing flow levels of the Snake and Columbia Rivers to aid salmon migration.(54) Included in the plan was a call(55) for regional agreement on future water appropriations and instream flows.(56) The Council's Strategy for Salmon called upon the states to "deny new water appropriations that would harm anadromous fish."(57) Later, in its 1994 Fish and Wildlife Program, the Council again encouraged "a halt to new water appropriations that could harm salmon."(58)

B. Recent History of Diversions

Listing salmon stocks in the Snake River was not a new idea in 1991; NMFS and the U.S. Fish and Wildlife Service (FWS) initiated an evaluation of Columbia River salmon and steelhead stocks in 1978 to determine whether these species merited protection under the ESA.(59) The two federal fishery agencies suspended their evaluation pending creation of the 1980 Northwest Power Act.(60) Since the enactment of the 1980 Act, the state water agencies have issued hundreds of new water right permits.((61) In all, new permits with priority dates post-dating 1980 appropriated 1319.1 cfs of water from the mainstem Columbia and Snake Rivers.(62) Of this amount, 977.2 cfs came from the Columbia.(63) Washington allocated 449.4 cfs to new consumptive uses, and Oregon allocated 527.8 cfs.(64) In the Snake River, permits appropriated 347.1 cfs of water. Washington allocated 219.3 cfs, while Idaho allocated 127.8 cfs.(65) Despite Congress's clear directive to protect and restore Columbia salmon runs, the Northwest Power Act was unable to prevent the ESA listings of several stocks.(66)

A decade after the Northwest Power Act, many salmon stocks had gone extinct or were on the brink of extinction.(67) In March 1990, the Shoshone-Bannock Tribe petitioned the Secretary of Commerce to list the Snake River sockeye salmon as endangered;(68) the agency listed the species on December 20, 1991.(69) Since then, irrigators have diverted at least 29.5 cfs of water from the mainstem under permits with priority dates subsequent to the ESA listing.(70) Of this amount, at least 4.1 cfs came from the Columbia (allocated by both Washington and Oregon)(71) and 25.4 cfs came from the Snake (allocated by Idaho).(72) In part to respond to the salmon listings, the Northwest states have taken steps toward ratcheting down new appropriations.

Since the listing of the sockeye, Washington, Oregon, and Idaho all have enacted rules or orders that limit new appropriations of water from the mainstem Columbia and Snake Rivers.(73) While Washington and Oregon adopted moratoria in recognition of the region's uncertainty of water availability for appropriation and in response to the Strategy for Salmon,(74) Idaho adopted a moratorium in response to its drought.(75) Since the states' moratoria went into effect, new water right permits have authorized diversions totaling 26.9 cfs.(76) Washington, whose moratorium limits new withdrawals as of the date of the sockeye listing,(77) has only issued a handful of temporary consumptive use permits.(78) Oregon has allocated 3.9 cfs from the Columbia, and Idaho has allocated 23.0 cfs from the Snake River.(79) These figures suggest that recent efforts to manage the water resource have been effective in ratcheting down diversions of much-needed mainstem river flows. The following Part takes a closer look at the moratoria, examining the restrictions imposed on applications for water rights.

III. WASHINGTON'S MORATORIA

On March 13, 1992, in response to federal and regional concerns raised by the Endangered Species Act (ESA) listings,(80) the Washington Department of Ecology (Ecology) adopted emergency rules imposing two moratoria on new water appropriations from the mainstem Columbia and mainstem Snake Rivers.(81) The purpose of Washington's moratoria was to allow the Department to determine what flows fish needed for survival and how much unappropriated water was still available after Ecology met those needs.(82) Washington's moratoria expired on June 30, 1994, but after a controversial notice-and-comment period,(83) Ecology extended the moratoria until July 1, 1999.(84)

A. The Scope of Washington's Moratoria

Washington's moratoria apply to applications filed after December 20, 1991, for water from the mainstem Columbia and Snake Rivers.(85) The rules except existing rights and applications submitted before the December 20, 1991 ESA listing.(86) The rules do not apply to tributaries to the mainstem, but cover only mainstem surface water and ground water that is tributary to the mainstem.(87)

Because the moratoria exclude Columbia and Snake River tributaries, the limited scope of Washington's moratoria has the potential to hinder its effectiveness.(88) Tributaries contribute to mainstem flows; consequently, consumptive appropriations of tributary water diminish mainstem flows. Ecology enacted its moratoria because it questioned "whether sufficient information and data is available for making sound decisions on water availability and the public interest for additional appropriations from the mainstem of the Columbia River."(89) New tributary appropriations, if made, could thwart resolution of this uncertainty by continuously decreasing mainstem flows and irretrievably committing water resources.

Ecology extended its moratoria to complement the "regional effort to acquire additional flows for imperiled fish stocks."(90) Diminished mainstem flows attributable to decreased tributary flows would frustrate this effort. Flows in the mainstem Columbia River are critical for salmon migration.(91) Reservoir operations shape flows, but so does water from tributaries. Effective management of the Columbia mainstem requires careful management of the waters that contribute to the mainstem flows on which salmon stocks depend for survival. From the perspective of salmon recovery, moratoria that restrict appropriation of water from the mainstem while ignoring tributary streams have the potential to be greatly ineffective. Salmon stocks spawn and rear in the tributaries of the Columbia and Snake Rivers and depend on cool, clean stream flows for survival during the nonmigratory part of their life cycle. Even without listed fish in certain tributaries, tributary streams nevertheless should be subject to the moratoria because they contribute to mainstem flow levels. Washington's moratoria should be extended to include Columbia River and Snake River tributaries.

B. The Moratoria's Exceptions

One of the moratoria's largest exceptions is for applications filed by the federal government for withdrawals for the Columbia Basin Project.(92) The Columbia Basin Project irrigates approximately 600,000 acres of eastern Washington with water diverted above Grand Coulee Dam.(93) Water pumped directly from the mainstem Columbia irrigates approximately 42,000 acres.(94) Originally intended to irrigate 1.1 million acres, the project currently holds reserved rights to water for the second half of the agricultural scheme.(95) The Columbia Basin Project has a priority date of 1938.(96) Ecology excepted the project because the state cannot control the Bureau of Reclamation (BOR) water contract.(97) In June 1993, BOR announced its own moratorium on new water contracts involving the upper Columbia and Snake Rivers.(98) This exception, therefore, should not weaken the effect of the state moratoria unless BOR changes its policy.

The Washington moratoria also except nonrecurring temporary projects that last up to six months, with a possible extension of the water right for no more than six additional months.(99) Ecology intended this exception to apply primarily to road construction watering projects, and it has issued a handful of water permits for this purpose.(100)

Washington's moratoria exclude nonconsumptive uses.(101) The Department defines a "nonconsumptive" use to mean that there is no diversion from the water source or that the user diverts the water but returns it immediately following its use to the source at the point of diversion in the same quantity and with no degradation in water quality.(102)

The recently extended moratoria add two new exceptions. The moratoria except uses that are necessary for emergency public health and safety needs when all other reasonable methods of obtaining water have been exhausted.(103) In addition, the rules except uses that are specifically intended to benefit weak fish stocks.(104)

C. Evaluating the Washington Moratoria

Washington has issued water permits sparingly for applications filed after December 20, 1991 to appropriate water from the mainstem Columbia

and Snake Rivers. Ecology has authorized a handful of temporary permits, but no substantial, more permanent permits.(105) At the same time that it is restricting new mainstem appropriation, however, Ecology has the power to approve diversions of tributary waters. Another weakness of the moratoria is the grandfathering of all previously filed water right applications. Grandfathering old applications allows Ecology to allocate water even though it does not know if water is available. Washington's water code requires Ecology to determine that water is available for appropriation and that the appropriation is not detrimental to the public welfare before allocating the resource.(106) Ecology has admitted it is unaware of the amount of available water in the Columbia mainstem;(107) consequently, the water code seems to require rejection of any applications. To be more effective, Washington's moratoria should include Columbia and Snake River tributaries and should apply to all applications pending after December 20, 1991, the date of the first salmon listing.

IV. OREGON'S RULEMAKING

In 1994, rather than adopting a moratorium per se, the Oregon Water Resources Commission (OWRC)(108) amended its public interest standards for new appropriations from the upper Columbia River and its tributaries above the Bonneville Dam.(l09) The purposes of the rulemaking were to protect fish and preserve Oregon's options for instream resource protection. (110) One condition that an applicant for a permit must meet is to assure that the proposed use does not involve appropriation of direct stream flow during the salmon migration period (April 15 to September 30).(III) This condition also applies to permits for the appropriation of surface water,(112) hydraulically connected ground water with potential for substantial interference with surface water,(113) and waters to be used for ground water recharge.(114) In addition, the condition covers permits to store water or construct a reservoir.(115) The amended public interest standards apply to water right applications received after July 17, 1992, although OWRC did not adopt the rule until September 1994.(116) The rule has no sunset clause or termination date.(117) The Oregon Water Resources Department (OWRD) later imposed public interest standards to water right applications for the lower Columbia River.(118)

A. The Scope of Oregon's Upper Columbia Rulemaking

The purposes of Oregon's rule are to restrict new appropriations filed after July 17, 1992(119) and increase consultation with fishery management agencies and local governments concerning new water right permits(120) The rule introduces standards and procedures to aid OWRD "in determining whether a proposed use will impair or be detrimental to the public interest with regard to threatened or endangered fish species."(121) Importantly, permits may issue to new water use applicants only if OWRD determines that the proposed use is consistent with the Fish and Wildlife Program of the Northwest Power Planning Council (NPPC) or can be conditioned to achieve consistency with the Program.(122) If OWRD determines that a proposed use is inconsistent and that mitigation will not achieve consistency, OWRD must deny the application on the grounds that it impairs the public interest.(123) In making this determination, OWRD must consult with NPPC, the National Marine Fisheries Service (NMFS), the U.S. Fish and Wildlife Service (FWS), the Oregon Department of Fish and Wildlife (ODFW), interested Indian tribes, and appropriate local governments.(124) If a proposed use is inconsistent with the Fish and Wildlife Program, the applicant may propose mitigation based on ODFW's Fish and Wildlife Habitat Mitigation Goals and Standards.(125)

In addition to consultation with agencies, tribes, and local governments, the Director of OWRD must consider other factors affecting fish survival before approving a water appropriation permit. The rule limits most new withdrawals during the salmon migration season. An applicant may not appropriate direct stream flow or hydraulically connected ground water (except that which is artificially recharged) from April 15 to September 30, the salmon migration season.(126) A proposed right must comply with statutorily prescribed(127) screen design, installation, and operation specifications, as well as passage requirements.(128) Finally, a proposed appropriation must comply with existing state and federal water quality standards and with water use measurement, recording, and reporting conventions required by the Director.(129)

The Oregon rule has no sunset clause. OWRC determined it was unnecessary to attach a sunset clause to its rulemaking because Oregon state agencies must review and update all rules every three years.(130) OWRC will also review and may revise the role as additional information becomes available concerning the recovery of threatened and endangered fish stocks in the Columbia and Snake River Basins.(131) Thus, when NPPC revises its program and NMFS develops a fish recovery plan, or if a court decision affects the current rules, OWRD could revisit the rule.(132)

B. The Rule's Exceptions

The amended public interest standards applicable to water appropriated above Bonneville Dam contain five exceptions. First, domestic water use is not subject to the new rule.(133) Second, the rule exempts any projects providing net benefits for native resident and native anadromous fish recovery.(134) As an example, OWRD suggested livestock watering away from water courses in order to prevent livestock access to riparian areas. (135) Third, the standards do not apply to emergency use necessary for public health and safety.(136) Fourth, the rule exempts existing water uses covered under House Bill 2153,(137) the "ponds bill," passed by the Oregon Legislature in 1993 to encourage landowners to register their ponds, thereby legitimizing ponds for which landowners illegally lacked water rights.(138) Finally, the new standards make an exception for multipurpose storage projects or other projects with measurable public benefits.(139)

C. Oregon's Lower Columbia Rulemaking

Although the Columbia River below the Bonneville Dam is free-flowing, salmon runs still require protection in this stretch of the river. Mainstem dam construction has inhibited the recharging of the estuarine and marine environments with nutrients from the river because the flows do not retain their turbidity through the dams' passageways. (140) The establishment and maintenance of a deep navigation channel has greatly altered the lower river from its natural state. One result is slower, shallower offchannel areas that are important for juvenile salmon rearing.(141) However, migrating salmon must now use the deep channel and may be more vulnerable to predators than they were in the turbid shallow waters that were common before Columbia River development.(142)

On June 3, 1994, OWRC authorized its staff to initiate rulemaking to ensure protection for threatened and endangered fish species below the Bonneville Dam.(143) OWRD created a rule that applies to water below Bonneville Dam, but only to applications filed after April 8 or June 3, 1994, depending on the area.(144)

D. Evaluating Oregon's Rule

Oregon has issued water permits sparingly for applications filed after July 17, 1992, seeking to appropriate water from the mainstem Columbia River. Under the amended public interest standards, OWRD has issued three water rights, totaling 3.9 cfs, to appropriate water in the mainstem Columbia for consumptive use. (145) Specifically, OWRD authorized two permits above Bonneville Dam to appropriate a total of 2.2 cfs, and one permit downstream of the dam to appropriate 1.7 cfs, both for consumptive use.(146)

The amended public interest standards apply to permits filed after July 17, 1992,(147) for appropriation of water any time during the spring and summer salmon migration period, April 15 to September 30. Many tribes and environmental groups criticized the seasonal duration of the limitation on new appropriations.(148) They argued that the four and one-half month duration fails to encompass needs and concerns that exist regardless of the season, including passage, storage for flow augmentation, spawning and rearing habitat, and flushing of the stream system.(149)

Appropriation constraints that are merely seasonal frustrate regional efforts to improve mainstem flows. ODFW is currently exploring different sources of additional water, including the storage of seasonal peak flows in tributaries and the subsequent delivery of this water to the Columbia and Snake Rivers during the spring and summer migration periods.(150) If out-of-season flows can be appropriated without restrictions similar to the limits imposed upon appropriations during the migration period, such future opportunities to secure water for fish may be lost.

Year-round flows in the tributaries are vital for much of the fish life cycle, regardless of the species. Resident fish (151) require year-round flows to provide habitat for all phases of their life cycle. Adequate stream flows are also necessary to prevent loss of habitat for anadromous species.(152) Many anadromous adults spawn in the fall; their eggs develop through the winter and produce young juveniles in late winter and early spring.(153) Certain anadromous species (spring chinook, for example) rear in tributaries for a full year before migrating to the ocean.(154)

OWRC defended the seasonal limitation of the rule, citing a "general agreement among biologists" that flows need to be augmented for fish runs only from April 15 to September 30.(155) Although additional flows may be needed at other times, OWRC claimed it lacked data sufficient to support an expansion or elimination of the seasonal limitation on new appropriations.(156)

Oregon's rule approaches the salmon recovery effort as a long-term goal. If OWRD continues to ratchet down new appropriations from the Columbia Basin, the likelihood that Oregon will authorize diversions that deprive salmon of adequate flows will decrease. Although Oregon's rule itself is effective, OWRD exempted applications filed before the amendments to the public interest criteria were made-in all, 878 applications, including an application by the Oregon Department of Agriculture "for over 3.2 million acre-feet of water for 'future economic development.'"(157) OWRD is currently processing grandfathered applications. As a result, out-of-stream water consumption continues to harm salmon stocks and to limit Oregon's options for future water resources management.

V. IDAHO'S Moratorium

Unlike Washington and Oregon, Idaho imposed a moratorium on new water rights in response to its continuing drought, rather than in response to the endangered salmon listing. Irrigation is the largest consumptive water use in the Snake River Basin.(158) Deference to irrigation runs high in this arid state; for this reason, the Idaho Department of Water Resources (IDWR) opposes the use of Snake River storage for anadromous fish.(159) Notwithstanding Idaho's position, the moratorium has incidentally served to protect the Snake River salmon by restricting new appropriations of water from the Basin.

By 1992, four consecutive years of drought in Idaho had depleted storage reservoirs and caused ground water levels to approach record lows in many aquifers.(160) On May 15, 1992, in order to promote ground water recharge, IDWR established an indefinite moratorium on processing and approving presently pending and new applications for water rights permits in the Snake River Basin, including tributaries.(161) On January 6, 1993, the Director of IDWR amended the order to narrow the area affected by the moratorium. Specifically, the amended order exempted the southeastern corner of Idaho, an area extending roughly from American Falls Reservoir to Idaho Falls. (162) The moratorium was amended again in 1995 to remove other areas from the constraints of the rule.(163) The Idaho Legislature effectively codified the Director's amended moratorium order and imposed an expiration date of December 31, 1997 on the resulting statute.(164)

A. The Scope of Idaho's Moratoriumm

Idaho's moratorium covers permits to appropriate water from all surface water and ground water sources within the Eastern Snake River Plain Area(165) and the Boise River Drainage Area, including tributaries.(166) The order applies to all applications proposing a consumptive use filed after May 15, 1992, and to all applications filed before that date that IDWR had not yet approved.(167) Idaho's moratorium differs from Oregon and Washington's moratoria in that it has a retroactive effect on water right applications already filed with the Department. The other states' moratoria allow the agencies to continue to process applications filed before the moratoria's respective effective dates.(168) According to the Director, the order remains in effect until he withdraws or modifies it; however, the legislative codification imposed a December 31, 1997 expiration date.(169)

B. The Moratorium's Exceptions

Idaho's order has few exceptions. It exempts applications for domestic and nonconsumptive uses, and it does not apply to applications for transfers of existing rights or for drilling permits to replace or deepen existing wells having valid existing water rights.(170)

The order provides for a case-by-case review of applications that IDWR would otherwise not approve under the terms of this moratorium under two circumstances. First, IDWR will review the application if the Director determines that protection and furtherance of the public interest requires consideration and approval of the application.(171) Second, IDWR will review the application if the Director determines that the development and use of the water will have no effect on prior water rights because of the location of the diversion, the insignificant consumption of water of the applicant, or mitigation provided by the applicant to offset injury to other rights.(172)

C. Evaluating Idaho's Moratorium

Since Idaho's moratorium took effect on May 15, 1992, IDWR has approved water rights in the mainstem Snake totaling 23 cfs.(173) Idaho's rule is also the most unreliable from a salmon recovery perspective, because its purpose is to facilitate ground water recharge and not to ensure adequate flows for migrating salmon.(174) While fish may benefit from Idaho's moratorium incidentally, there is no guarantee that this benefit will continue once Idaho's aquifers are recharged.

VI. The Role of The ESA

Although Washington, Oregon, and Idaho have enacted their moratoria voluntarily, the Endangered Species Act (ESA)(175) could constrain the relevant water agencies' discretion under certain circumstances. Under the ESA, federal agencies must cooperate with state agencies to resolve water resource issues.(176) This does not mean, however, that federal agencies must acquiesce to state water laws if the result would adversely modify critical habitat of endangered species.(177) The primary means for implementing the ESA is habitat protection.(178) To protect endangered salmon in the Columbia River Basin, it is possible that the National Marine Fisheries Service (NMFS) will place restrictions on future or vested diversionary water rights,(179) order the release of impoundment water,(180) or require maintenance of instream flow levels.(181) Such actions might restrict existing and new withdrawals to the extent that state-authorized withdrawals adversely affect listed species.(182)

Section 9 of the ESA prohibits any person from taking a listed species.(183) The Act defines "person" to include any individual, state, or political subdivision of a state.(184) The definition of "take" includes "harm."(185) "Harm" is currently defined as "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."(186) Cumulatively, out-of-stream consumptive water appropriations may impair essential behavioral patterns of salmon by contributing to increased travel time during migration.(187)

NMFS has not yet taken any action that adversely affects the Northwest states' ability to allocate water, but it is clear that political subdivisions of states must act consistently with the ESA requirements. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,(188) the Supreme Court held that the Department of the Interior (DOI) reasonably construed Congress's intent when it defined "harm" to include significant habitat modification. Thus, under the DOI regulation, habitat modification by a state agency could constitute a taking under the ESA.

NMFS has already begun to account for the cumulative effects of state actions on the listed species in the agency's section 7 consultations with federal agencies. Section 7 of the ESA requires federal agencies to ensure that any action federally authorized, funded, or carried out is not likely to jeopardize the continued existence of any endangered species or result in destruction or adverse modification of critical habitat.(189) The U.S. Army Corps of Engineers (Corps) requires a section 404 permit under the Clean Water Act for the construction of a structure to divert water from the mainstem Columbia.(190) The Corps's permitting authority triggers a section 7 consultation with NMFS.(191) Under this consultation, NMFS must account for the cumulative effects of state actions on the listed species.(192) In late 1993, NMFS demanded that the Corps undertake a cumulative impact study before approving any particular section 404 permit on the Columbia River.(193)

While NMFS has asserted control over the Columbia River through its section 7 consultation process, it remains to be seen if the agency will apply section 9's "no take" provision to exert authority over local state water agencies. Under the Supreme Court's interpretation of "take," if the state agencies allocate water withdrawals that harm salmon, then NMFS could proceed against the diverter, or perhaps against the agency itself, as the holder in trust of the water resource. The Washington Department of Ecology, the Oregon Water Resources Department, and the Idaho Department of Water Resources must manage the Columbia Basin to restore flows if they intend to retain control over the water resource.(194) The states' moratoria may be a first step toward effective state water management.

VII. CONCLUSION

Opponents of the mainstem Columbia Basin diversion moratoria argue that additional flows may not result in significant improvements in fish survival and productivity because other factors (ocean survival, mainstem hydroelectric projects, and harvest) limit salmon survival and productivity.(195) They point to a lack of scientific evidence as to whether a moratorium on additional appropriations improves the situation.(196) These arguments do not outweigh the arguments in favor of the moratoria.

State, federal, and regional agencies in the Northwest, as well as power utilities, tribes, and numerous other interests are spending a great deal of time and money to acquire additional water for flows. These groups spent $145 million in 1993 to augment flows with nearly 10 million acre-feet of water.(197) It is questionable public policy to spend taxpayer and ratepayers' money to purchase water in one location under the pretense of protecting flows for fish migration and then allow appropriators to divert it for other uses. The Columbia and Snake Rivers are still not meeting the flow levels that the National Marine Fisheries Service called for in its biological opinions;(198) therefore, additional out-of-stream diversions seem to be inconsistent with the Endangered Species Act.

The moratoria restrict certain new uses of water without affecting existing water rights. Thus, the restrictions on new water rights can at best merely maintain the status quo of flows in the mainstem, which may be inadequate to save the salmon.(199) Out-of-stream consumptive users who continue to divert water from the river, its tributaries, or any hydraulically connected ground water could frustrate current attempts to augment flow in the mainstem. The Northwest state water agencies have taken affirmative actions to halt any further harm to the salmon by enacting moratoria, but the agencies have yet to restrict current appropriations. Some suggestions for the state water agencies to expand their efforts to recover salmon runs in the Columbia Basin follow.

While the moratoria have reduced new appropriations in the Columbia Basin, state water agencies should impose certain conditions on new permits to ensure the moratoria promote salmon recovery. First, the agencies should subordinate any new permits to any later-developed instream rights. The uncertainty surrounding water availability in the Columbia Basin demands a cautious approach to additional appropriation. State agencies can undo a moratorium; under prior appropriation, they cannot undo a water right.(200) Second, the water resource agencies of Washington and Idaho should follow OWRD's lead and make their rules consistent with the Northwest Power Planning Council's Fish and Wildlife Program. This would ensure a regional approach to water management.

State agencies or state courts should employ the public trust doctrine to improve the region's salmon resource. The leading California case, National Audubon Society v. Superior Court of Alpine County (the Mono Lake case),(201) holds that the public trust doctrine applies retroactively to existing state water permits.(202) Protection of salmon runs is in the public interest because of their cultural, biological, historical, and economic significance. Facing dwindling salmon runs and an overappropriated mainstem migration corridor, the state agencies should recognize that issuing any more water right permits-including the grandfathered applications-is not in the public interest. It is uncertain whether Oregon, Washington, or Idaho will follow California's lead and apply the public trust doctrine in a retroactive manner; given that they have taken action in the form of the moratoria State courts, however, may not feel constrained to apply the doctrine only prospectively.(203)

State agencies should also mitigate the effect of any new water allocated out-of-stream by requiring water right applicants to supply instream an equivalent amount of water from existing water rights to compensate for the new use so the net impact of the new diversion is zero. Under such a "quasi-water marketing" program, water agencies would act as banks and buy back retired rights or actively promote conservation statutes to ensure that retired or conserved water from senior water users replaces any new water that appropriators divert.(204)

Finally, state agencies should assist the regional salmon recovery effort by enforcing the existing law.(205) The states should begin to actively enforce against waste and water spreading. Existing law conditions the right to use water upon beneficial use without waste.(206) Current inefficient irrigation practices reflect a widespread dereliction of beneficial use requirements.(207) In light of the fact that water agencies appear to have overallocated many rivers in the Northwest,(208) enforcing against waste would provide a source of water to meet instream flow needs without discriminating against senior or junior users. State agencies should also crack down on water spreading. This illegal practice enables water users to Uspread" water to additional lands without registering for new water rights.(209) Changing a diversion's place of use without state approval deprives junior appropriators of their rights to use the water and usurps junior instream flows.

Washington, Oregon, and Idaho have imposed new restrictions on some diversions at certain times and places to save salmon and combat drought conditions. The challenge is to find a way to manage the resource beyond maintenance of the status quo and establish a balance between fish runs and water uses in the Columbia River.

(1) Northwest Power Planning Council Draft Anadromous Fish Amendments to the 1994 Columbia River Basin Fish and Wildlife Program [sections] 7, at 53 (1994).

(2) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994). Snake River sockeye salmon were categorized as endangered by NMFS on November 20, 1991. 56 Fed. Reg. 58,619 (Nov. 20, 1991); see also 57 Fed. Reg. 212

(Jan. 3, 1992) (added to list of Endangered and Threatened Wildlife by the U.S. Fish and Wildlife Service); 58 Fed. Reg. 68,543 (Dec. 28, 1993)

(critical habitat designated). NMFS categorized Snake River spring/summer and fall chinook salmon as threatened in June 1992. 57 Fed. Reg. 14,653 (Apr. 22, 1992); see also 57 Fed. Reg. 23,458 (June 3, 1992) (listing corrected); 58 Fed Reg 49,880 (Sept. 23, 1993) (added to list of Endangered and Threatened Wildlife by the U.S. Fish and Wildlife Service); 58 Fed. Reg. 68,543 (Dec. 28, 1993) (critical habitat designated). NMFS reclassified Snake River spring/summer and fall chinook salmon as endangered in August 1994. 59 Fed. Reg. 42,529 (Aug. 18, 1994). (3) Environmental & Technical Servs. Div., National Marine Fisheries Serv., U.S. Dep't of Commerce, Factors for Decline: A Supplement to the Notice of Determination for Snake River Spring/Summer Chinook Salmon Under the Endangered Species Act 37-38 (1991) [hereinafter Factors for Decline]; see also 59 Fed. Reg. 42,529, 42,530 (Aug. 18, 994).

(4) 16 U.S.C. [sections] 1536 (1994). (5) National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion on 1993 Operation of the Federal Columbia River Power System 4 (May 26, 1993). (6) Letter from J. Gary Smith, Acting Regional Director, National Marine Fisheries Service, to Martha Pagel, Director, Oregon Water Resources Department (OWRD) 1 (Sept. 2, 1994)

(regarding OWRD's above-Bonneville moratorium) (on file with author and OWRD).

(7) Id.

(8) Withdrawal of Unappropriated Waters, Wash. Admin. Code [subsections] 173-563-015 (Columbia River), 173-564-040 (Snake River) (1995); Public Interest Standards for New Appropriations Within the Columbia/Snake Basin Above Bonneville Dam, Or. Admin. R. 690-33-100 to 690-33140 (1994); Idaho Dep't of Water Resources (IDWR), Amended Moratorium Order: In the Matter of Applications for Permits for the Diversion and Use of Surface and Ground Water Within The Eastern Snake River Plain Area and the Boise River Drainage Area (Apr. 30, 1993) [hereinafter IDWR Moratorium]. Oregon's rule avoided the term "moratorium" because 1) the rule was only a seasonal restriction, not an outright ban on water right appropriations, Or. Admin. R 690-33-120(2)(a)

(1994), and 2) OWRD intended the rule to he permanent, id. at 690-33-100(4). However, in light of the context of the rulemaking and the similarities between Oregon's rule and the rules enacted by the other states, this Article will refer to the rule as a moratorium.

(9) Compare IDWR Moratorium, supra note 8, at 1 with Or. Admin. R 690-33-000

(1994), and Wash. Admin. Code [subsections] 173-563-015(1), 173-564-040(1)

(1995). (10) Compare Wash. Admin. Code [subsections] 173-563-015(4), 173-564-040(4) (1995) with Or. Admin. R. 690-33-100(3) (1994) and IDWR Moratorium, supra note 8, at 1. (11) Compare IDWR Moratorium, supra note 8, at 1 with Or. Admin. R. 690-33-100(3) (1994) and Wash. Admin. Code [subsections] 173-563-015(2), 173-564-040(2) (1995). The backlog of water right applications at the Oregon Water Resources Department and the Washington Department of Ecology compel the agencies to continue processing grandfathered water right permit applications. (12) Or. Admin. R. 690-33-120(1) (1994). Congress passed the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. [sections] 839a (1994), on December 5, 1980. The Act 1) authorized the states of the Pacific Northwest to establish an interstate compact agency, the Council; 2) directed the Council to establish a fish and wildlife program for the Columbia Basin to protect, mitigate, and enhance fish and wildlife adversely affected by the hydroelectric system; and 3) directed federal water management agencies to give equitable treatment to fish and wildlife and to take the Council's program into account. 16 U.S.C. [sections] 839b (1994).

(13) See Wash. Admin. Code [sections] 173-563-010 (1995); IDWR Moratorium, supra note 8.

(14) The term "mainstem" refers to the main channels of the Columbia and Snake rivers, the primary migratory corridors to and from the Pacific Ocean for juvenile and adult salmon. The Snake River is the principal tributary of the Columbia River, so the term "mainstem Columbia River" includes the Snake River. (15) "Cfs," or cubic feet per second, refers to the quantity of water flowing at a velocity of one foot per second through a box one foot wide and one foot deep. It is equivalent to 448.8 gallons per minute or slightly more than 646,000 gallons per day. (16) OWRD Data Request Results (Mar. 10, 1996)

(on file with author); WDOE Data Request Results (Mar. 10, 1996) (on file with author); IDWR Data Request Results (Mar. 10, 1996) (on file with author) [hereinafter collectively referred to as Data Request Results]. The author requested a tally of consumptive water permits for water in the Columbia and Snake Rivers issued after 1) the passage of the NPA (December 5, 1980); 2) the ESA listing of the sockeye salmon (December 20, 1991); and 3) the effective date of each state's moratorium. The results reflect appropriations with priority dates after the specified dates, and do not include permits filed before but processed after those dates.

(17) Telephone Interview with John Covert, Staff Member, Washington Department of Ecology (Nov. 28, 1994).

(18) Data Request Results, supra note 16.

(19) See infra part II.

(20) Factors for Decline, supra note 3, at 37-38.

(21) Letter from J. Gary Smith, supra note 6.

(22) See infra part VI.

(23) Primary uses of the river include navigation, flood control, irrigation, electric power generation, recreation, water supply and quality, fish and wildlife habitat, and fish migration. Bonneville Power Admin. et al., The Columbia River System: The Inside Story 6-8 (1991).

(24) Anadromous fish runs in the Columbia River have dwindled from an estimated 11 to 16 million fish annually before the non-Native American migration to the West to about 2.5 million annually by 1986. Robert C. Lothrop, The Misplaced Role of Cost-Benefit Analysis in Columbia Basin Fishery Mitigation, 16 Envtl. L. 517, 522 (1986). (25) See Michael C. Blumm, The Columbia River Basin: From the Stevens Treaties to the Endangered Species Act 3 (Fall 1994) (unpublished manuscript on file with author). (26) Overall salmon and steelhead runs are approximately one-fifth of their predevelopment size, and only 20% of those fish spawn in rivers. Northwest Power Planning Council, Draft Anadromous Fish Amendments to the 1994 Columbia River Basin Fish and Wildlife Program [sections] 1, at 6 (Sept. 1994). (27) Juvenile migrant survival correlates directly to flow. See Howard L. Raymond, Effects of Hydroelectric Development and Fisheries Enhancement on Spring and Summer Chinook Salmon in the Columbia River Basin, 8 N. Am. J. Fisheries Mgmt. 25

(1988); W.W. Bentley & Howard L. Raymond, Delayed Migrations of Yearly Chinook Salmon Since Completion of Lower Monumental and Little Goose Dams on the Snake River, Transactions Am. Fisheries Soc'y 422 (1976). (28) See Joy Ellis & Margaret Filardo, Fish Passage Ctr., Review of Salmon Migration Condition and Needs 4 (1992).

(29) See Howard L. Raymond & Carl W. Sims, Nat'l Marine Fisheries Serv., Assessment of Smolt Migration and Passage Enhancement Studies for 1979 (1980)

(report from NMFS to u.s. Army Corps of Engineers); Lowell K. Stuehrenberg et al., A Study of Apparent Losses of Chinook Salmon and Steelhead Based on Count Discrepancies Between Dams on the Columbia and Snake Rivers, 1967-1968

(1978) (report from NMFS to u.s. Army Corps of Engineers). (30) Bonneville Power Admin. et al., supra note 23, at 47. (31) Id. at 6. Of the irrigated acreage, 7.6 million acres are in the United States and 0.2 are in Canada: Id. at 46. (32) Id. at 6.

(33) Mitchell Trebon, Plan to Tie Water Right to Fish Impact Protested, Capitol Press (Salem, Or.), June 24, 1994, at 6 [hereinafter Trebon, Plan]; Mitchell Trebon, Irrigators Use Hearings to Protest River Moratorium, Capitol Press (Salem, Or.), Aug. 26, 1994, at 18 [hereinafter Trebon, Irrigators]; Dan Wheat, Legislators Boiling over Water Issue, Wenatchee World, Aug. 30, 1994, at 12. (34) Trebon, Irrigators, supra note 33, at 18.

(35) Waterwatch of Oregon, New Direction for Oregon Policy 1 (1993).

(36) For example, between 1909-1992, Oregon issued 74,339 permits for out-of-stream use, but only 542 permits for instream water rights. Waterwatch of Oregon, New Directions for Oregon Water Policy 9 (Mar. 1993) [hereinafter New Directions].

(37) Consumptive diversions harm salmon for a number of reasons. Fish can become lost or die if they swim down unscreened diversion channels. Furthermore, the water diverted from the river can deplete flows enough to adversely affect spawning grounds (which require fresh, cool, running water to clean and oxygenate the beds) and make migration difficult, if not impossible. Finally, chemical-laden runoff from modern irrigation practices pollutes streams. (38) The first person who obtains a water right on a stream is the last person who must shut off her diversion in times of low stream flows. In times of water shortage, the appropriator with the oldest priority date can demand the water specified in her right regardless of the needs of other users. Once this right is fulfilled, the next appropriator in the chain of priority receives enough water to satisfy her right, and so on through the chain until no more water is available for appropriation. See 2 Waters and Water Rights chs. 11-17 (Robert E. Beck ed., 1991 & Supp. 1992).

(39) See Michael C. Blumm, The Rhetoric of Water Reform Resistance: A Response to Hobbs' Critique of Long's Peak, 24 Envtl. L. 171, 185 (1994)

(comparing agricultural and municipal development lobbies to the "iron triangle" that supplied states with federal subsidies). (40) NMFS cited a lack of adequate stream flow in the Columbia River and its tributaries as a factor for the decline of salmon runs. 56 Fed. Reg. 29,542, 29,54546 (June 27, 1991). (41) Oregon did not establish instream water rights until the Instream Water Rights Act of 1987, Or. Rev. Stat. [subsections] 537.332-537.360 (1995), 78 years after the Oregon Water Rights Act, id. [subsections] 537.110-537.330, established out-of-stream rights. Since 1955, Oregon has authorized minimum stream flows. New Directions, supra note 36, at 7. These are administrative rules, not instream rights. Unlike instream rights, during a time of shortage, Oregon can waive the minimum stream flow in favor of later water rights. Or. Rev. Stat. [sections] 537.332-537.360

(1995). Washington established instream water rights in 1967 in its Minimum Water Flows and Levels Act, Wash. Rev. Code [subsections] 90.03.247, 90.27.010 to 90-27.040 (1994), while Idaho introduced instream water rights in 1978, Idaho Code [sections] 42.1501 (1990). (42) 16 U.S.C. [subsections] 1531-1544 (1994). (43) Id. [sections] 1535(c)

(44) See infra part VI.

(45) The "Salmon Summit," convened in late 1990 by Senator Mark Hatfield

(R-Or.), laid the groundwork for a regional plan. Columbia River System user, policy, and interest groups met to establish short-term measures that the region implemented in 1991. See Michael C. Blumm, Salmon Law and History: Sources and Analyses 60 (Fall 1994) (unpublished manuscript, on file with the Water Institute, Northwestern School of Law of Lewis & Clark College). The Northwest Power Planning Council had already created the Columbia Basin Fish and Wildlife Program in 1982, but the Program's limited scope could not provide a comprehensive approach to salmon recovery. Id. at 38-46.

(46) Pacific Northwest Electric Power Planning and Conservation Act

(Northwest Power Act), 16 U.S.C. [sections] 839b(a) (1994).

(47) Under the Northwest Power Act, NPPC must address the hydropower system's effect on fish and wildlife in the Columbia River Basin. Id. [sections] 839b(h). The Strategy for Salmon was the response to a request from the Salmon Summit members to expand the Council's task. Any recommendations by the Council do not bind nonhydro parties unless Congress amends the NPA to expand the scope of NPPC's authority or unless the affected parties bind themselves to NPPC s Program. Northwest Power Planning Council, 1994 Columbia River Basin Fish and Wildlife Program (1994) [hereinafter Fish and Wildlife Program]. Oregon s moratorium takes the latter approach. See infra part IV.

(48) In the spring of 1991, NPPC initiated a process to amend its program in four phases. The first three phases created a salmon recovery strategy. The fourth phase addressed resident fish and wildlife. See Fish and Wildlife Program, supra note 47, at 2. (49) Northwest Power Planning Council, Strategy for Salmon (1992) [hereinafter Strategy for Salmon].

(50) Id. at 24-27

(51) Id. at 18-22.

(52) Id. at 24.

(53) Id. at 29-30.

(54) Id. at 18-20.

(55) This is the term used by the Council. The Northwest Power Act reads, "[n]or shall any provision of this Chapter of [sic] any plan or program adopted pursuant to the Chapter (1) affect the rights or jurisdictions of the United States, the States, Indian tribes, or other entities over waters of any river or stream or over any groundwater resource." 16 U.S.C. [sections] 839g(h) (1994). Thus, the Council's program cannot make any binding demands on the state water agencies.

(56) Strategy for Salmon, supra note 49, at 22.

(57) Id. at 38.

(58) Northwest Power Planning Council, 1994 Columbia River Basin Fish & Wildlife Program Overview 21 (1994).

(59) See F. Lorraine Bodi, Protecting Columbia River Salmon Under the Endangered Species Act, 10 Envtl. L. 349, 350 (1980).

(60) 16 U.S.C. [subsections] 839-839h (1994)

(61) Data Request Results, supra note 16.

(62) Id.

(63) Id.

(64) The allocations were for 398.4 cfs above and 129.4 cfs below Bonneville Dam, respectively. Id.

(65) Id.

(66) See Michael C. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon and Endangered Species in the Columbia Pasin, 21 Envtl. L. 657, 711-13 (1991) (discussing NPPC's inability to restructure Columbia Basin hydro project operations to avoid ESA listings).

(67) 55 Fed. Reg. 22,942 (June 5, 1990).

(68) Id.; 55 Fed. Reg. 13,181 (Apr. 9, 1990).

(69) 56 Fed. Reg. 58,619 (Nov. 20, 1991). Two months after the Shoshone-Bannock Tribe's petition, a coalition of environmental groups including Oregon Trout, the Idaho and Oregon chapters of the American Fisheries Society, the Northwest Environmental Defense Center, American Rivers, and the Oregon Natural Resources Council co-petitioned the Secretary to list the lower Columbia coho and Snake River spring, summer, and fall chinook under the ESA. 57 Fed. Reg. 14,653, 14,654 (1992) (corrected in 57 Fed. Reg. 23,458 (1992)); see Blumm, supra note 45, at 52. (70) Data Request Results, supra note 16.

(71) Oregon authorized appropriation of 4.1 cfs. Id. Although the author's data request showed no authorized appropriation from Washington, later telephone interviews with staff members of the Washington Department of Ecology suggest that Washington authorized appropriations for road construction use, an exception to its moratorium. Telephone Interview with John Covert, Staff Member, Washington Department of Ecology (Mar. 25, 1996).

(72) Data Request Results, supra note 16.

(73) Withdrawal of Unappropriated Waters, Wash. Admin. Code [subsections] 173-563-015 (Columbia River), 173-564-040 (Snake River) (1995); Public Interest Standards for New Appropriations Within the Columbia/Snake Basin Above Bonneville Dam, Or. Admin. R. 690-33-100 to 690-33140 (1994); IDWR Moratorium, supra note 8. (74) Strategy for Salmon, supra note 49.

(75) IDWR Moratorium, supra note 8, at 1.

(76) Data Request Results, supra note 16.

(77) Wash. Admin. Code [subsections] 173-563-015(2), 173-564-040(2) (1995).

(78) Telephone Interview with John Covert, supra note 17.

(79) Data Request Results, supra note 16.

(80) See supra note 2.

(81) Withdrawal of Unappropriated Waters, Wash. Admin. Code [subsections] 173-563-015 (Columbia River); 173-564-040 (Snake River) (1992) (expired 1994). (82) Wash. Rev. Code [sections] 90.03.290 (1994) requires Ecology to determine, before issuing a water right permit, that 1) the appropriated water will be put to a beneficial use, 2) water is available for appropriation, 3) existing rights will not be impaired by the proposed appropriation, and 4) the proposed application is not detrimental to the public interest.

The applications received after December 20, 1991 retained their filing dates for priority date purposes. Under the doctrine of prior appropriation, a priority date attaches to each water right and determines its seniority. See supra note 38. In Washington, the priority date is usually the date that the permit application is filed with Ecology. Wash. Admin. Code [sections] 508-12-140 (1995). The Department intends to act on applications determined to be subject to the moratorium, without a loss of priority date, after its policy changes to allow further appropriation of the mainstem river. Id. [subsections] 173-563-015(5), 173-564-040(5). (83) Criticism voiced by agricultural and municipal interests at public hearings caused Ecology to put off making a final rule until January 13, 1995. See Trebon, Irrigators, supra note 33, at 18; Wheat, supra note 33, at 12; Washington Dep't of Ecology, Focus: Columbia/Snake Rivers Update 1 (Oct. 1994). (84) Extension of Appropriations Moratoria for Mainstem Columbia and Snake River, Wash. St. Reg. Perm. 95-02-066 (Jan. 18, 1995). (85) Wash. Admin. Code [subsections] 173-563-015(2), 173-564-040(2) (1995). (86) Washington Dep't of Ecology, Focus: Columbia/Snake Rivers Update 1 (June 1994). (87) Wash. Admin. Code [subsections] 173-563-015(4), 173-564-040(4) (1995). The moratorium only included ground water that requires a permit under Wash. Rev. Code [sections] 90.44.050 (1994). Domestic use of up to 5000 gallons of water per day does not require a permit under this section. Id. (88) Although Washington's moratorium excludes tributaries, in actuality, Ecology is approving very few new appropriations in the tributaries. In early 1992, Ecology conducted a review of salmon stocks and instream flows in approximately 200 streams in the Columbia Basin. The Department determined that either it had already closed most of the tributaries to new water rights or that it was conditioning rights on instream flows for the streams that were still allocable. Telephone Interview with and Facsimile Communication from Thom Luikin, Staff Member, Washington Department of Ecology (Dec. 5, 1994).

(89) Wash. Admin. Code [subsections] 173-563-015(1), 173-564 040(1) (1992)

(expired 1994). (90) Wash. Admin. Code [subsections] 173-563-015(1), 173-564-040(1) (1995) (revised and given effect Feb. 3, 1995).

(91) Restoring healthy mainstem flows is the anadromous issue. Tim Palmer, The Snake River 224 (1991) (quoting resource consultant Ed Chaney).

(92) Wash. Admin. Code [sections] 173-563 015(2)(a) (1995).

(93) Scarce Water and Institutional Change 53 (Kenneth D. Frederick ed., 1986).

(94) Id.

(95) Id.

(96) Wash. Rev. Code [sections] 90.40 (1994). Congress passed the Columbia Basin Project Act in 1943. Act of Mar. 10, 1943, ch. 14, 57 Stat 14 (codified at 16 U.S.C. [sections] 835 (1994)). (97) Wash. Rev. Code [sections] 90.40.100 (1994); Wash. Admin. Code [sections] 508-14-030 (1995). (98) Memorandum from Jim Cole, Project Manager, Bureau of Reclamation, to John Keys, Regional Director, Bureau of Reclamation, Boise, Idaho (Jan. 20, 1994). Keys responded (Feb. 4, 1994):

Our commitments in the Endangered Species Act (ESA) consultations concerning the

Federal Columbia River operations have taken into account the ongoing requirements of

existing CBP [Columbia Basin Project] operations. We believe that restrictions on new

water service contracting, as recommended in your memorandum, are necessary until

interim and long-term water requirements have been fully defined for the salmon runs

listed under the ESA.

(99) Wash. Admin. Code [subsections] 173-563-015(2)(b), 173-564-040(2)(a)

(1995). The 1992 moratoria only allowed four-month temporary projects, with possible four-month extensions. Ecology requires applications for extensions to include adequate justification for the extension and to demonstrate that the applicant is making reasonable efforts to use the water as efficiently as possible. Id. (100) Telephone Interview with Thom Lufkin, Staff Member, Washington Department of Ecology (Nov. 24, 1994), unconfirmed by Data Request Results, supra note 16. (101) Wash. Admin. Code [subsections] 173-563-015(2)(c), 173-564-040(2)(b) (1995). (102) Id.

(103) Wash. St. Reg. 02-066 (1995) (to be codified at Wash. Admin. Code [subsections] 173-563 015(2)(d), 173-564-040(2)(c)).

(104) Wash. St. Reg. 02-066 (1995) (to be codified at Wash. Admin. Code [subsections] 173-563 015(2)(e), 173-564-040(2)(d)).

(105) Telephone Interview with Thom Lufkin, supra note 100, unconfirmed by Data Request Results, supra note 16.

(106) Wash. Rev. Code [subsections]90.03.290 (1994)

(107) Wash. Admin. Code [subsections]173-563-015, at preamble (1995).

(108) OWRC is a governor-appointed, seven-member commission that establishes policies for the operation of its staff, the Oregon Water Resources Department

(OWRD). Or. Rev. Stat. [subsections]536.022-536.025 (1995). OWRD consists of the Director (Martha Pagel) and all personnel employed in the Department Id. [subsections] 536.039.

(109) Or. Admin. R. 690-33-100 to 690-33-140 (1994). Oregon's rule covers permits for water from the mainstem upper Columbia and Snake River Basins and the following tributary basins: Hood, Deschutes, John Day, Umatilla, Grande Ronde, Poder, Malheur, and Owyhee. Id. at 690-33-100(3).

(110) Bob Rice, Oregon Water Resources Department, Remarks at Public Hearing for Lower Columbia Rules, Portland, Or. (Nov. 30, 1994). The purposes of the above-Bonneville rules and the below-Bonneville rules are the same.

(111) Or. Admin. R. 690-33-120(2)(a) (1994). The Rules provide for two exceptions to the condition--water put to domestic uses and water appropriated for emergency uses necessary to protect public health and safety. Id. at 690-33-140(1), (3).

(112) Id. at 690-33-100(2)(a)

(113) Id. at 690-33-100(2)(b)

(114) Id. at 690-33-100(2)(c).

(115) Id. at 690-33-100(2)(d)

(116) Id. at 690-33-100(3). On July 17, 1992, OWRC directed its staff to delay processing most new water use applications upstream of Bonneville Dam pending development of a strategy to respond to a listing. Oregon Water Resources Comm'n, Proposed Internal Management Directive

(Jan. 1994) (on file with author).

(117) Id. at 690-33-l00(4)

(118) Public Interest Standards for New Appropriations Within the Lower Columbia Basin Below Bonneville Darn, OR. ADMIN. R. 690-33-210 to 690-33-240 (1994). As of March 1996, OWRC is also initiating statewide rulemaking for sensitive, threatened, and endangered fish stocks. Oregon Water Resources Comm'n, Summary of Oral and written Comments and the Department's Response: Div. 33 Rules, at Response 1.3 & 1.4

(Sept. 9, 1994) [hereinafter OWRC Summary].

(119) Or. Admin. R. 690-33-100(3) (1994)

(120) Id. at 690-33-120(l) 121 Id. at 690-33-l00(l)

(122) Or. Admin. R. 690-33-120(1) (1994)

(123) Id.

(124) Id.

(125) Id. at 690-33-120(4). ODFW's Fish and Wildlife Habitat Mitigation Goals and Standards can be found at Or. Admin. R. 635-415-030 (1992). In addition, OWRD may condition the proposed use on retaining, restoring, or enhancing riparian vegetation at the point of diversion. Or. Admin. R. 690-33-120(3) (1994).

(126) Or. Admin. R. 690-33-120(2)(a)-(b) (1994).

(127) See Or. Rev. Stat. [sections]498.311, 509.600-509.630 (1995).

(128) Or. Admin. R. 690-33-120(2)(c) (1994).

(129) Id. at 690-33-120(2)(d)-(e)

(130) Or. Rev. Stat. [subsections]183.545 (1995)

(131) Or. Admin. R. 690-33-120(3) (1994)

(132) See OWRC Summary, supra note 118, at Response 3.1-3.3.

(133) Or. Admin. R. 690-33-140(1) (1994).

(134) Id. at 690-33-140(2)

(135) Id.

(136) Id. at 690-33-140(3)

(137) Or. Rev. Stat. [sections]537.400-537.409 (1995)

(138) Or. Admin. R. 690-33-140(4) (1994)

(139) Id. at 690-33-140(5)

(140) Frank Young, Oregon Department of Fish and Wildlife, Presentation to the Lower Columbia Rules Advisory Committee (Sept. 15, 1994).

(141) Id.

(142) Id.

(143) Or. Admin. R. 690-33-210 to 690-33-240 (1994).

(144) Id. 690-33-210(1),(2)

(145) Data Request Results, supra note 16.

(146) Id.

(147) Or. Admin. R. 690-33-100(3) (1994)

(148) OWRD received comments from the Oregon Department of Fish and Wildlife, WaterWatch of Oregon, Trout Unlimited, Oregon Trout, Columbia River Inter-Tribal Fish Commission, Northwest Sportfishing Industry Association, Confederated Tribes of the Umatilla Indian Reservation, and Oregon Natural Resources Council (on file OWRD).

(149) Id.

(150) See Letter from Oregon Department of Fish and Wildlife to Martha Pagel, Director, Oregon Water Resources Department 2 (June 23, 1994)

(on file with OWRD) (regarding Comments on Proposed Rules Setting Standards to Protect Columbia/Snake Threatened and Endangered and Weak Fish Stocks).

(151) Resident fish spend their entire life cycle in freshwater. For NPPC's Fish and Wildlife Program purposes, resident fish include landlocked anadromous fish (e.g., white sturgeon, kokanee, and coho), as well as traditionally defined resident fish species. Fish and Wildlife Program, supra note 47, at 10-11.

(152) Letter from Oregon Department of Fish and Wildlife, supra note 149, at 3.

(153) Id. at 2-3.

(154) Id. at 1-2.

(155) OWRC Summary, supra note 118, at Response 4.1-4.5.

(156) Id.

(157) See Michael C. Blumm, The Rhetoric of Water Reform Resistance: A Response to Hobbs' Critique of Long's Peak, 24 Envtl. L. 171, 186 n.83 (1994). OWRD grandfathered unprocessed applications based on an equitable argument that it was unfair to impose a new rule on water right applicants who, in reliance on the old rule, applied for water rights prior to the rulemaking. Telephone Interview with Bob Rice, Oregon Water Resources Department (Nov. 30, 1994).

(158) Southeastern Idaho agriculturalists irrigate 530,000 acres with surface water and 1,291,000 acres with ground water. Natural Resources Defense Council, Contigent Water Market For Salmon Recovery 11 (Feb. 1992) (draft report). In southwestern Idaho, agriculturalists irrigate 251,300 acres with surface water and another 1,259,900 acres with ground water. Id.

(159) "That water is needed for the growth of Idaho. To dump that water in the river and flush it downstream doesn't seem to be a wise use of stored water " Tim Palmer, the Snake River 225 (1991) (quoting Keith Higginson, Director, Idaho Department of Water Resources).

(160) IDWR Moratoruim, supra note 8, at 1.

(161) Id. Changes in diversion and use of surface waters throughout the Snake River Basin, coupled with the increased volume of pumping to augment scarce surface water supplies during the drought period, caused a reduction in natural recharge of ground water aquifers. IDWR Moratoruim, supra note 8, at 1.

(162) IDWR Moratoruim, supra note 8, at 1. In the language of the moratorium, the southeastern corner of the state is known as the "non-trust water area." Id. at 1-2.

(163) See Thom Lufkin, Washington Dep't of Ecology, Summary of Regional Moratoria on New Diversions from the Columbia-Snake River Basins (Feb. 1996).

(164) Id. at 4-6; Idaho Code [subsections]42-1806 (Supp. 1995). Although the Idaho Legislature did not codify the Director's order itself, it codified the effect of his order.

(165) The East Snake River Plain Area covers 15,600 square miles, including a valley approximately 50 miles wide, which flanks the Snake River from the town of Heise to the town of King Hill, and a shorter western plain stretching to the Idaho/Oregon border at the town of Weiser. Palmer, supra note 158, at 33.

(166) IDWR Moratorium, supra note 8, at 4.

(167) Id. at 4-5

(168) The backlog of water right applications at the Oregon Water Resources Department and the Washington Department of Ecology compel the agencies to continue processing water right permits with priority dates pre-dating the moratoria. If these agencies broadened their moratoria to apply to pending applications, less water would be presently allocated See supra parts III, IV.

(169) IDWR Moratorium, supra note 8, at 1. But see Idaho Code [subsections]42-1806 (Supp. 1995).

(170) IDWR Moratoruim, supra note 8, at 5.

(171) Id. at order 5.

(172) Id. at 5.

(173) Data Request Results, supra note 16.

(174) IDWR Moratorium, supra note 8, at 1.

(175) 16 U.S.C. [sections]1531-1544 (1994).

(176) 16 U.S.C. [subsections]1531(c)(2) (1994)

(177) See, e.g., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 513

(l0th Cir. 1985) (the Corps did not exceed its authority when it denied a section 404 permit on grounds that the increased consumption of water could have a downstream impact on an endangered species).

(178) 16 U.S.C. [subsections]1536(a)(2) (1994)

(179) See, e.g., United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126 (E.D. Cal. 1992) (diversion depleting stream flow is a taking of protected Sacramento winter chinook; GCID ordered to reduce its diversion from 3000 cfs to 1100 cfs).

(180) See, e.g., Endangered Species Act of 1982: Hearings on S. 2309 Before the Subcomm. On Environmental Pollution of the Senate Comm. on Environment and Public Works, 97th Cong., 2d Sess. 233-34 (1982) (statement of Roland C. Fischer, Secretary-Engineer, Colorado River Water Conservation District) (criticizing the U.S. Fish and Wildlife Service for compelling the State of Utah to release a minimum of 250 cfs of water, with larger releases in the Colorado River squawfish spawning season, at the White River Dam in order to obtain a nojeopardy opinion under the ESA).

(181) See, e.g., Riverside Irrigation Dist., 758 F.2d at 513 (downstream flows maintained at the expense of the opportunity to appropriate); Sierra Club v. Lujan, No. 91-CA-069, 1993 WL 151353, at *33 (W.D. Tex. Feb. 1, 1993) (ordering interim spring flows in the Edwards Aquifer until defendant FWS sets minimum spring flows for the protected fountain darter and Texas blind salamander).

(182) See, e.g., Glenn-Colusa Irrigation Dist., 788 F. Supp. at 1126

(Federal district court granted NMFS a permanent injunction against pumping water from an irrigation district diversion facility because the screen killed fish, including the threatened winter chinook.).

(183) 16 U.S.C. [subsections]1538(a)(1)(B) (1994).

(184) Id. [subsections]1532(13)

(185) Id. [subsections]1532(19)

(186) 50 C.F.R. [subsections] 17.3 (1994); Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 115 S. Ct. 2407, 2408 (1995).

(187) See United States v. Glenn-Colusa Irrigation Dist., 788 F. Supp. 1126, 1135 (E.D. Cal. 1992) (diversion depleting stream flow was a taking of protected Sacramento winter chinook because diversion screen killed fish); see, e.g., Palila v. Hawaii Dep't of Land & Natural Resources, 649 F. Supp. 1070 (D. Haw. 1986), aff'd, 852 F.2d 1106

(9th Cir. 1988) (Palila IT) (grazing mouflon sheep had negative impact on critical habitat of protected Palila); see also Melissa K. Estes, The Effect of the Federal Endangered Species Act on State Water Rights, 22 Envtl. L. 1027 (1992) (arguing that water diversions are "takes" under the ESA).

(188) 115 S. Ct. 2407 (1995).

(189) 16 U.S.C. [subsections]1536(a)(2) (1994).

(190) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [subsections]1344 (1994).

(191) 16 U.S.C. [subsections]1536(a)(3) (1994).

(192) Telephone Interview with Dan Avery, Staff Member, National Marine Fisheries Service (Oct. 31, 1994).

(193) Id.; Telephone Interview with Steve Morris, National Marine Fisheries Service (Dec. 1, 1994). In an ESA consultation involving the construction of a structure for water diversion to satisfy an existing water right belonging to the Port of Umatilla, NMFS agreed to concur with the Corps's environmental assessment that the construction would not adversely affect any endangered species if the Corps became involved in NMFS's cumulative impact study. Telephone Interview with Steve Morris, supra.

(194) See 16 U.S.C. [subsections]1535(c) (1994).

(195) Trebon, Plan, supra note 33, at 6; Trebon, Irrigators, supra note 33, at 18; Wheat, supra note 33, at 12.

(196) Trebon, Irrigators, supra note 33, at 18; Wheat, supra note 33, at 12.

(197) Trebon, Irrigators, supra note 33, at 18; Wheat, supra note 33, at 12.

(198) National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion on 1993 Operation of the Federal Columbia River Power System 4

(May 26, 1993); National Marine Fisheries Serv., U.S. Dep't of Commerce, ESA [subsections] 7 Consultation Regarding 1994-1998 Operation of the Federal Columbia River Power System & Juvenile Transportation Program in 1994-1998, at 5 (Mar. 16, 1994).

(199) See Idaho Dep't of Fish & Game V. National Marine Fisheries Serv., 850 F. SUPP. 886, 900 (D. Or. 1994) ("[T]he process is seriously, `significantly,' flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation--that is, relatively small steps, minor improvements and adjustments--when the situation literally cries out for a major overhaul.").

(200) Jeff Curtis, WaterWatch of Oregon, Oral Comments at Public Hearing for Lower Columbia Rules, Northwestern School of Law of Lewis & Clark College (Nov. 30, 1994).

(201) 658 P.2d 709 (Cal.), cert. denied, 464 U.S. 977 (1983).

(202) Id. at 728.

(203) See Kootenai Envtl. Alliance v. Panhandle Yacht Club, 671 P.2d 1085, 1094 (Idaho 1983) (implying that the public trust doctrine burdens existing water rights).

(204) See Northwest Power Planning Council, 2 Strategy for Salmon 3 (1992)

(encouraging states to acquire existing water rights on a voluntary basis to improve fish flows).

(205) See id. ("Our strategy calls for enforcement of water rights and withdrawal limits at diversions, including measuring devices.").

(206) This fundamental tenet of the prior appropriation doctrine is codified at Or. Rev. Stat. [subsections]537.120 (1995), Wash. Rev. Code [subsections]90.14.020 (1994), and Idaho Code, [subsections]42-104

(1990).

(207) See, e.g., New Direstions, supra note 36, at 13-14 (discussing waste in the Deschutes River and concluding that "wasteful water use is rampant in Oregon").

(208) See id. at L

(209) See WaterWatch of Oregon, for Orego's Future: Water Marketing in Perspective 6-7 (I993).

Joy Ellis, Associate at Perkins Coie, Portland, Oregon; J.D. 1995, Northwestern School of Law of Lewis & Clark College; B.A. 1991, Yale University. This Article was originally 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.