Seven myths of Northwest water law and associated stories.

In some respects, the Pacific Northwest as a region has been defined by what it is not: it is not as arid as the intermountain West.(1) But it is a mistake to think that water in the Northwest is not a scarce resource, subject to increasing demands for a variety of consumptive and nonconsumptive purposes. The 1990s have made evident that Northwest water supplies are insufficient to meet regional needs, as perhaps best illustrated by the listing of Snake River salmon for protection under the Endangered Species Act (ESA).(2) Thus, the myth of abundance has been only recently exposed.

In truth, a student of water law in the Northwest must confront a number of myths that inhibit a full understanding of the framework within which rights to the region's most precious natural resource are allocated. Part I of this introduction aims to expose these myths and explain the realities. Part II briefly overviews the articles constituting this symposium.

I. NORTHWEST WATER LAW MYTHS

A. Myth No. 1: The Northwest is Humid

It is true that the Northwest is home to the largest remaining temperate rain forest in North America, and climatic conditions here are wet enough to provide ideal conditions for the growth of Douglas fir trees.(3) But heavy moisture characterizes only the Pacific slope of the Cascade Mountains, which comprises but a small fraction of the four states of the Pacific Northwest. Roughly two-thirds of Oregon and Washington lie east of the Cascades as, of course, do all of Idaho and Montana. East of the Cascades aridity rules. While precipitation in the Olympic peninsula northwest of Seattle can average over one hundred inches a year, Seattle's average precipitation averages only about forty inches, and just one hundred miles east of Seattle, on the east side of the Cascades, annual precipitation averages less than nine inches.(4) Moreover, virtually all of the region's rainfall occurs between November and April,(5) before the summer irrigation season begins.

During the summer, in the majority of the region lying east of the Cascades, the Northwest is arid. Because most of the people in the Northwest live along the narrow ribbon on the Pacific slope of the Cascades, the region's geography has masked this essential aridity. Those who wish to understand the reality of the critical importance of water in the Northwest must look behind the mask.

B. Myth No. 2: Salmon Divides the Region into Lower and Upper Basin Constituencies

The great river that drains all of the states of the Pacific Northwest, the Columbia, and its principal tributary, the Snake, unite the region as no other resource does. Over the past half-century, the region constructed (mostly with substantial federal subsidies) the largest interconnected hydroelectric system in the world.(6) Hydropower gave the Northwest the cheapest electric rates in the nation, brought electricity to rural areas east of the Cascades, and lured to the region electric-intensive industries, such as aluminum plants, that diversified the regional economy.(7) Unfortunately, the damming of the Columbia River crippled what were once the world's largest salmon runs.(8) For the past twenty years, coincident with the completion of the last mainstem federal dam, the region has been preoccupied with salmon restoration. That concern produced the innovative fish and wildlife provisions of the 1980 Northwest Power Act,(9) which in turn produced the largest biological restoration program on the planet.(10) Unfortunately, the ineffectiveness of that program prompted listing of Snake River sockeye and chinook salmon runs for ESA protection.(11) The ESA listing' led to moderate changes in Columbia River flows, increasing flows somewhat in the spring and summer when juvenile salmon migrate to the ocean.(12) Salmon advocates have protested that these flow increases are too small to restore the endangered runs.(13)

While some debate the adequacy of salmon flows, others question the efficacy of flow increases at all. Since Idaho Governor Cecil Andrus (D) left office,(14) Idaho has resisted increased Snake River flows where those flows would be the result of storage reservoir drawdowns in Idaho.(15) Although it is plain that Idaho salmon require Idaho water,(16) Idaho officials have questioned the scientific basis of increased river flows,(17) and the state has even made water transfers more difficult where the result is to send water downstream, out-of-state.(18)

The upshot of Idaho's reluctance to support river flows for salmon restoration has been to create the perception that there is a divide between the upper basin states and the lower basin states.(19) Such a division would, for example, produce a stalemate on the Northwest Power Planning Council, where upper and lower basin states are represented equally.(20) While there is no specific requirement that the Council increase water flows to facilitate salmon migration, there may be limits on unilateral actions inconsistent with salmon restoration that an upstream state such as Idaho can take under state law. For instance, if Idaho were to deny a water right transfer aimed at boosting Snake River salmon flows, that denial could be subject to a Commerce Clause challenge for discriminating against out-of-state users.(21)

Such a denial would also seem to violate Idaho's affirmative conservation duty under the equitable apportionment doctrine, which the U.S. Supreme Court has ruled applies to salmon.(22) In so ruling, the Court concluded: "At the root of the [equitable apportionment] doctrine is the same principle that animates many of the Court's Commerce Clause cases: a State may not preserve solely for its own inhabitants natural resources located within its borders."(23) As a result, if Idaho were to deny a water transfer whose purpose was to improve flows in the Snake River for the benefit of salmon on the ground that it was "conserving" water for in-state use,(24) that denial could violate both the Commerce Clause and the equitable apportionment doctrine.(25) As the Court concluded, "States have an affirmative duty . . . to take reasonable steps to conserve and even to augment the natural resources within their borders for the benefit of other States."(26)

Thus, even if the political winds seem to be blowing the upper and lower basin states apart on salmon recovery issues, the courts may insist that upper basin states not hoard water necessary for effective salmon migration. If so, it will have been the least representative branch of government that refuses to allow us to escape the reality that the salmon and their migrations are the fundamental ties that bind us together as Northwesterners.

C. Myth No. 3: The Market Allocates Western Water Rights

One of the myths propounded by advocates of the prior appropriation system of water rights is that it is a market-driven system.(27) According to this myth, although Western water law rewards the first diverter (who may or may not be the most efficient user) with property rights, the prior appropriation doctrine's great virtue is that it allows alienability of rights, so that water may flow to the user who values it most, measured by willingness to pay.(28) For some advocates of rules promoting efficient use of natural resources, Western water law's emphasis on private rights and market-based transfers provides a paradigmatic illustration of the operation of the Coase Theorem's contention that market transfers will produce economic efficiency.(29)

But the reality of water allocation under the prior appropriation doctrine is that the market operates with frequency only in some states,(30) and then usually only to transfer one diversionary use to another. The "no injury" rule to third parties has worked to foreclose many transfers, as has the failure of the seller to demonstrate full use of his water right.(31) In the Snake Basin, efforts to purchase water from agricultural users to increase river flows to improve salmon migration have met with considerable local resistance.(32) This resistance is not based on market principles, such as sellers demanding a higher price to forego diversions necessary for agricultural crops. Instead, the resistance is due to local community opposition to market transfers where those transfers would take land out of agricultural production, with attendant erosion of tax base and adverse local economic effects.(33) This resistance to the potential consequences of a free market caused the 1995 Oregon House to pass a bill that, had it not been killed in the Oregon Senate, would have banned market transfers of agricultural water for the purpose of increasing instream flows.(34)

In truth, then, the market is far from the overriding force in allocating Western water rights. Where the market conflicts with local community values, water market transactions are regularly thwarted, a reminder of the strong communal interest in Western water.(35)

D. Myth No. 4. Appropriators Are Entitled to a Fixed Quantity of Water

Although it is hornbook law that the measure of a water right is beneficial use without waste,(36) many diverters continue to believe that the quantity of water they may legally divert is a constitutionally protected property right.(37) This myth has been perpetuated by the courts, which have only rarely restrained historic uses by finding customary methods of diversion to be wasteful.(38) Nevertheless, prior appropriation protects only nonwasteful beneficial uses, not historic diversions.(39) As modern irrigation systems reduce evaporation and seepage losses in conveying water to crops and increase the percentage of diverted water that can be consumed by the crop, outmoded carriage and application systems can be declared wasteful, and therefore not within the diverter's water right. The concept of nonwasteful beneficial use thus has the potential to demand cessation of historic wasteful practices and adoption of modern conservation measures.(40)

The Washington Supreme Court recently supplied an example of how stricter application of the beneficial use and waste doctrines can help modernize Western water law. In Department of Ecology v. Grimes,(41) the court upheld a referee's decision that refused to recognize a diverter's historically wasteful irrigation practices as the measure of his water right. According to the court, while customary irrigation practices are a factor in determining what constitutes waste, they are not determinative.(42) Thus, the wasteful diverter had no right to constitutional compensation as a consequence of the referee's decision limiting his right to divert water.(43)

Proper understanding of the scope of the property right in water under the beneficial use and waste doctrines not only means that state efforts to limit wasteful diversionary practices will not run afoul of the Constitution,44 it also makes less revolutionary the application of public trust principles to Western water rights.(45) After all, the essence of the public trust is accommodating both instream and diversionary needs;(46) rigorous application of the beneficial use and waste doctrines could free up diverted water for instream (public trust) purposes. The Idaho Supreme Court's recent affirmation that the public trust burdens all water rights in that state(47) gives the public some hope that Idaho courts will insist upon a reconciliation between instream and diversionary uses, which will necessarily result in curtailment of wasteful diversions. Similar results may be occasioned by implementation of the Endangered Species Act(48) and the Clean Water Act.(49)

E. Myth No. 5: Hydropower Law Is Not Water Law

Over the next fifteen years, the Federal Energy Regulatory Commission (FERC) must consider relicensing some two hundred nonfederal dams in the Northwest(50) under the terms of the Federal Power Act.(51) The outcome of these procedures may have a substantial effect on Northwest water flows, so it is a mistake to think that these federal adjudications are not an integral part of water law. In fact, the courts have ruled that a federal hydroelectric licenses can preempt state water law.(52)

The most significant FERC relicensing proceeding on the regional horizon is Idaho Power Company's three-dam Hells Canyon complex.(53) Authorization of these projects in the 1960s extirpated the salmon runs of the middle Snake Basin, despite Idaho Power Company's assurances that a trapping and hauling program around the dams would preserve the runs.(54) Today the Hells Canyon complex is an important spigot of storage water, essential for downstream salmon flows.(55) The relicensing process could produce higher flows to aid salmon migration in the spring and summer months and might even call for a reintroduction of salmon in the Snake Basin above the three-dam complex. A similar reintroduction of salmon in the upper Deschutes Basin in central Oregon is under consideration in connection with the relicensing of Portland General Electric's Pelton and Round Butte Dams.(56)

The U.S. Supreme Court's recent decision in the Dosewallips River case(57) has helped to expose as myth the notion that hydroelectric licensing is separate from water quality law. In ruling that the state could impose minimum flow conditions on a FERC-licensed project through section 401 of the Clean Water Act,(58) Justice O'Connor's opinion for the Court referred to an attempted separation of water quantity concerns (as reflected in the FERC licensing process) and water quality concerns (under the Clean Water Act) as an "artificial distinction."(59) She noted that "[i]n many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery."(60) Advocates of water law reform should adopt Justice O'Connor's holistic view of the water resource and view the FERC relicensing process as a central element in restoring water flows in many Northwest river basins.

F. Myth No. 6: Water Law is Unconnected to Watershed Protection 

The Supreme Court's recognition of the inseparable relationship between water quantity and water quality in the Dosewallips case(61) calls into question Western water law's narrow focus on the stream channel. In the rural West, water quality is largely a function of upland land management, especially federal land management. The link between water law and watershed management has been noted in the leading public land treatise, which observes that "excessive diversions can harm watershed values, and watershed protection can assure sustained yield of high quality waters

for downstream use."(62) Yet legal recognition of watershed values is in its infancy, and even the definition of what constitutes a watershed is unclear.(63)

The Ninth Circuit has initiated judicial recognition of watershed protection by recognizing the connection between federal land management activities and state water quality standards in a series of recent cases.(64) In holding that citizens may enforce state water quality standards against federal timber harvests, the courts have begun to forge a "reluctant marriage" between watershed concerns and federal land management.(65) But these cases depend on clear violations of enforceable state water quality standards, which may prove to be more the exception than the rule.(66) Perhaps a more promising means of enforcing this reluctant marriage, at least on national forest lands, is through the National Forest Management Act's(67) provisions promising that forest plans must protect water quality and that clearcutting will not injure watershed values.(68) One court has remanded a forest plan for failure to assure watershed protection.(69) It is also possible that public land managers could foster watershed management through their authority to condition rights-of-way necessary for water diversions upon provision of "bypass flows" to protect downstream watershed conditions.(70)

Perhaps the paradigm example of managing federal lands to protect watersheds is the Clinton Administration's efforts to redirect Northwest public land timber harvests to protect species--like the northern spotted owl, the marbled murrelet, and the Snake River salmon--listed under the Endangered Species Act.(71) However, the Administration's plans have been crippled by enactment of the "timber salvage" rider as a part of the 1995 Rescissions Act,(72) Judge Michael Hogan's sweeping interpretations of the scope of that rider,(73) and a congressional threat to defund ecosystem planning east of the Cascades.(74) Yet at the same time that Congress is threatening to end the federal government's involvement in watershed management, watershed planning on the local level appears to be on the rise.(75) The logic of managing lands and waters on a watershed basis, first recognized by John Wesley Powell over a century ago,(76) may be so persuasive that even the 104th Congress cannot stop it.

G. Myth No. 7: Indian Treaty Fishing Rights Are Not Water Law

Federal reserved water rights have long been a source of controversy throughout the West because they do not depend on state law concepts such as diversion or beneficial use, and because reservations were often established in the nineteenth century, giving them valuable early priority dates.(77) States have gained some control over reserved rights through broad judicial interpretations of the McCarran Amendment,(78) a congressional waiver of sovereign immunity that allows federal reserved water rights to be adJudicated in state comprehensive basin water adjudications.(79) Nevertheless, despite predictably narrow state court interpretations,(80) Indian reservations have secured large amounts of reserved rights.(81)

Until recently, however, courts have based their recognition of reserved water rights largely on agricultural purposes of reservations.(82) Yet many Indian reservations in the Northwest have both fishing and agricultural purposes,(83) and under the Stevens Treaties the signatory tribes also possess off-reservation fishing rights.(84) The scope of water reserved to carry out these purposes remains largely unsettled, but the amount could be quite large.(85)

Among the more prominent interpretations of the scope of the reserved water for fishing is the federal district court decision in United States v. Anderson,(86) which concluded the Spokane Tribe had sufficient water reserved in Chamokane Creek to maintain water temperatures cold enough to promote fish spawning,(87) and the Ninth Circuit decision in Colville Confederated Tribes v. Walton,(88) which ruled that the reserved water in Omak Lake was the amount necessary to maintain a replacement fishery for the Colville Tribes.(89) In another decision, the Ninth Circuit in United States v. Adair(90) distinguished the Klamath Tribe's reserved water for fishing from the Tribe's reserved water for agriculture, ruling that the former, with a priority date of "time immemorial," takes precedent over the latter.(91) As to the scope of the reserved water right for fishing, the court determined that the treaty did not reserve sufficient water to restore a treaty-time "wilderness servitude," and instead reserved only sufficient water to maintain fishing "as currently exercised."(92) Similarly, the Washington Supreme Court, in Department of Ecology v. Yakima Reservation Irrigation District,(93) concluded that because the scope of the Yakama Nation's reserved water for fish had been diminished by post-treaty congressional policies favoring irrigation in the basin and an Indian Claims Commission settlement, the scope of the right was limited to "the minimum instream flow of the river necessary to maintain anadromous fish . . . [under] annual prevailing conditions."(94)

The latter two results could be interpreted to mean that the amount of reserved water for fish is not sufficient to promote restoration of damaged fish runs, a result that would be contrary to the results in Anderson and Colville Confederated Tribes. However, on remand in the Yakima case, the trial judge employed the "maintain anadromous fish under annual prevailing conditions" standard to order storage releases to increase flows in tributary streams and to increase "flushing flows" in the mainstem Yakima River.(95) Thus, some restoration of the Yakama Nation's fish runs is underway. The amount of restoration to which fishing tribes are entitled is not clear, but the answer is more likely to be a function of the degree to which Congress has taken action in direct conflict with treaty promises to continue to fish than a reflection of the existing condition of the fishery.

Uncertainties associated with the scope of the reserved water right for fish, coupled with the clear temporal seniority of the tribes' fishing right over virtually all other water rights,(96) has induced some competing water users to seek to negotiate agreements with the tribes. Over twenty years ago, federal water managers promised not to "impair or destroy" the fishing rights of the Umatilla Reservation tribes.(97) More recently, irrigators in the Dungeness Basin agreed to curtail water diversions to help restore salmon runs in which the Jamestown S'Klallam Tribe has treaty rights.(98) Settlements of treaty rights to reserved water are proliferating throughout the West,(99) and there is no reason to think that there will not be more settlements in the near future involving treaty rights to fish.

II. SYMPOSIUM OVERVIEW

The Northwest Water Law & Policy Project, a foundation-supported think tank studying Northwest water law and policy issues, sponsored its first spring conference in May 1995.(100) Earlier, the project sponsored a fall conference on Columbia River governance, which was subsequently reprinted in Environmental Law.(101) At the spring conference, the project released several papers for public review and comment, many of which are published in this symposium. Others are available from the project,(102) as is the project's quarterly newsletter.(103)

David Getches's keynote address blames water law and policy for much of the destruction of the Columbia River's fabled salmon runs, which he refers to as "the buffalo of the Northwest Indians."(104) He argues that water law and policy, however, may be redeemed through evolution of the concept of beneficial use to become "an engine of the public interest," through modifying dams and diversions to allow them to be managed for ecosystem benefits, and through the rise of governance on the watershed level, which may allow local citizens to devise solutions to water conflicts that are fine-tuned to specific places and real people.(105) Through watershed planning, Professor Getches implies we may be able to recreate conditions that will foster the kind of civic virtue the nation's founders thought essential to pursuit of the public interest.(106)

Dar Crammond explores leasing water for instream flow enhancement as a means to improve ecosystem functions on the watershed level.(107) His article considers a variety of potential water sources for leases, examines federal and state laws in the Northwest affecting water leases, including the unsettled question of whether private parties may control leased instream rights, and suggests strategies for valuing and negotiating leases for instream purposes.(108) His article concludes that the glacial rule of instream flow leasing in the Northwest is due to the novelty of the concept, limited agency budgets inhibiting development of efficient leasing programs, and the uncertainty over whether individuals may hold property rights in instream flows.(109)

Reed Benson evaluates ongoing watershed planning in the Northwest in terms of its capability to restore water flows for instream uses such as salmon spawning and migration.(110) Surveying watershed management activities throughout the Pacific Northwest, Benson concludes that most plans focus on land use and riparian measures, not on protecting and restoring instream flows.(111) He argues for including streamflow measures in watershed plans but cautions that doing so will require overcoming inflexible state water laws and political hostility to governmental management of natural resources.(112)

Shauna Whidden considers the future of the last free-flowing stretch of the Columbia River, the Hanford Reach.(113) The Hanford Reach provides spawning habitat to the largest remaining wild populations of Columbia River salmon, due largely to the fact that the nearby Hanford Nuclear Reservation blocked development of water projects.(114) Ms. Whidden explains that now that the federal government has changed the reservation's purpose from Cold War-driven nuclear arms production to environmental restoration, the lands adjacent to the Hanford Reach may be preserved as a national wildlife refuge or sold to private parties for agricultural development.(115) She contends that Congress should adopt the recommendations of a recent National Park Service study by designating the Hanford Reach as a wild and scenic river and preserving the adjacent lands in federal ownership by designating them a national wildlife refuge.(116)

Finally, Joy Ellis considers the moratoria on water diversions from the Columbia River that Idaho, Oregon, and Washington put into place in response to the endangered species listings of Snake River salmon species.(117) She examines the effectiveness of each of the state laws, evaluating exceptions to the moratoria and the exceptions' applicability to tributary streams. She explains that the most effective of the moratoria, Idaho's, is actually a drought measure aimed at facilitating groundwater recharge, not salmon recovery.(118) The article explores the role of the Endangered Species Act in exerting control over the states' moratoria and concludes with suggestions on how to improve the effectiveness of moratoria, including a proposal that state agencies subordinate any new water rights to later developed instream rights.(119)

With publication of these articles, as well as its other publications,(120) the Northwest Water Law & Policy Project hopes to stimulate discussion of water-related issues in the Pacific Northwest. Regardless of the policy directions the region chooses to pursue, it needs to make choices based on informed discussion among all those whose livelihoods, culture, and sense of place is a function of Northwest river flows.

(1) For example, average annual rainfall is around 36 inches in Portland and around 37 inches in Seattle. U.S. Dep't of Commerce, Statistical Abstract of the United States 245 (115th ed. 1995). These figures are more than twice the average annual rainfall in Denver (around 15 inches) and Salt Lake City

(around 16 inches). Id. Another definition of the Pacific Northwest is "anywhere a salmon can get to." See Michael C. Blumm, Saving Idaho's Salmon: A History of Failure and a Dubious Future, 28 Idaho L. Rev. 667, 668 (1992).

(2) Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619 (Nov. 20, 1991) (listing Snake River sockeye salmon as "endangered"); Endangered and Threatened Species; Threatened Status for Snake River Spring/ Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed Reg. 14,653 (Apr. 22, 1992) (listing Snake River chinook salmon as "threatened"); see also Emergency Reclassification of the Snake River Spring/Summer Chinook Salmon, 60 Fed. Reg. 60,145 (Nov. 28, 1995) (reclassifying Snake River chinook salmon as "endangered"). (3) The "ancient forests" of the Pacific Northwest are critical habitat for the northern spotted owl, which, like Snake River salmon, has achieved notoriety due to Endangered Species Act listing. See generally Alyson C. Flournoy, Beyond the "Spotted Owl Problem": Learning from the Old-Growth Controversy, 17 Harv. Envtl. L. Rev. 261 (1993) (discussing issues surrounding the spotted owl and old-growth forest debate); Michael C. Blumm, Ancient Forests, Spotted Owls, and Modern Public Land Law, 18 B.C. Envtl. Aff. L. Rev. 605 (1991) (describing the legal battles over the ancient forests). (4) Joseph L. Sax et al., Legal Control of Water Resources: Cases and Materials 6 (2d ed. 1991).

(5) Id. at 7.

(6) 1 Northwest Power Planning Council, Northwest Conservation and Electric Power Plan 1-1, 5-1 (1986).

(7) See generally Michael c. Blumm, The Northwest's Hydroelectric Heritage: Prologue to the Pacific Northwest Electric Power Planning and Conservation Act, 58 Wash. L. Rev. 175 (1983) (providing an historical overview to the Northwest's hydroelectric power system).

(8) See Michael c. Blumm, Hydropower vs. Salmon: The Struggle of the Pacific Northwest's Anadromous Fish Runs for a Peaceful Coexistence with the Federal Columbia River Power System, 11 Envtl. L. 211, 214-23 (1981).

(9) 16 U.S.C. [sections] 839b(h) (1994).

(10) Northwest Power Planning Council, 1987 Columbia River Basin Fish and Wildlife Program 5 (1987) (observing that the program is "possibly, the most ambitious effort in the world to save a biological resource").

(11) See supra note 2 and accompanying text; John M. Volkman & Willis E. McConnaha, Through a Glass, Darkly: Columbia River Salmon, the Endangered Species Act, and Adaptive Management, 23 Envtl. L. 1249, 1250 (1993); Michael c. Blumm & Andy Simrin, The Unraveling of the Parity Promise: Hydropower, Salmon, and Endangered Species in the Columbia Basin, 21 Envtl. L. 657, 713-14 (1991).

(12) See Michael C. Blumm, Columbia Basin Salmon and the Courts: Reviving the Parity Promise, 25 Envtl L. 351, 360-61 (1995); Blumm, supra note 11, at 691-92.

(13) See Charles Ray, 1995 River Operations Under the Endangered Species Act: Continuing the Salmon Slaughter; 26 Envtl. L. (forthcoming 1996).

(14) Governor Andrus championed reservoir drawdowns of lower Snake dams that would increase flow velocities without requiring storage releases of immense magnitude. See Blumm & Simrin, supra note 11, at 725 (discussing Andrus's proposal to lower Snake River reservoirs 25 feet or more).

(15) See Lynn Francisco, Doubts Over Spill and Salmon Flows Plague Idaho and Montana, Clearing Up, May 8, 1995, at 6 (Idaho Water Resources Department Director Keith Higgenson suggesting that 1995 may be the last year Idaho will help flush migrating salmon to the ocean); Jonathan Brinckman & Marty Trillhaase, Batt Disputes Need for More Drawdowns, Idaho Statesman, Apr. 15, 1995, reprinted in Clearing Up, May 1, 1995 (Idaho Governor Phil Batt (R) opposing a "flow-based" strategy for salmon recovery).

(16) See Blumm, supra note 1, at 709.

(17) See Lynn Francisco, NMFS' New BO Attacked by Utilities, Enviros, Industry and States, Clearing Up, Jan. 30, 1995, at 6, 7 (Idaho Northwest Power Planning Council Member Mike Field questioning the science behind flow augmentation).

(18) See Idaho Code [sections] 42-401(3)(d), (5) (1990) discussed infra note 24.

(19) See, e.g., Lynn Francisco, No Drawdowns in New Idaho Plan; Reservoirs Kept at MOP, Clearing Up, Apr. 17, 1995, at 6-7 (discussing a new Idaho approach to salmon migration, relying less on flow velocity, especially in the summer, and more on barging).

(20) 16 U.S.C. [sections] 839b(G)(2)(B) (1994).

(21) See, e.g., Sporhase v. Nebraska, 458 U.S. 941, 960 (1982) (striking down a state's denial of a permit for export of water out-off-state).

(22) Idaho ex ref. Evans v. Oregon, 462 U.S. 1017, 1024 (1983).

(23) Id. at 1025.

(24) See Idaho Code [sections] 42401(3)(d) (1990) (requiring the Idaho Water Resources Director, when evaluating an application to transport water out of the state, to consider whether the water "could feasibly be used to alleviate current or reasonably anticipated shortages within the state of Idaho"). In 1992, the Idaho Legislature waived this requirement, and others in [sections] 42-401(3), on an interim basis for rental of storage water to augment lower Snake River flows to help migrating salmon. Idaho Code [sections] 42-1763A(2) (1995). That waiver expired on January 1, 1996, however. Id. at compiler's notes. In 1984, a federal district court reviewed a similar state statute governing water exports from New Mexico. City of El Paso v. Reynolds, 597 F. Supp. 694 (D.N.M. 1984); see also N. M. Stat. Ann. [sections] 72-12B-1 (Michie Supp. 1995). That statute required the state engineer to consider water conservation and the welfare of the citizens of New Mexico only when acting on applications to export water and not on in-state transfers. N.M. Stat. Ann. [sections] 72-12B-1(C) (Michie Supp. 1995). The court held that it violated the Commerce Clause by attempting to require interstate commerce to shoulder the entire burden of promoting water conservation and public welfare of the state's citizens. City of El Paso, 597 F. Supp. at 704. (25) See Blumm, supra note 1, at 681.

(26) Idaho v. Oregon, 462 U.S. at 1025.

(27) See, e.g., James L. Huffman, Agriculture and the Columbia River: A Legal and Policy Perspective, 10 Envtl. L. 281, 309-10 (1980). (28) See Frank J. Trelease, Federal State Relations in Water Law 5-6 (National Water Commission Legal Study no. 5) (1971) ("By giving security to water rights and protection to water uses, investments in water resources development and in enterprise dependent upon water use are encouraged."). (29) See Terry L. Anderson, Water Crisis: Ending the Policy Drought 70-71 (1983) (advocating market-based allocation); R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2-6

(1960) (advocating that competing resource users will maximize efficiency by bargaining in the shadow of clear liability rules). (30) See SAX et al., supra note 4, at 217-18 (in 1991, only Nevada, New Mexico, and Utah reported over 100 transfers annually in a recent study). For more current information, consult Water Strategist, a quarterly publication that reports on purchases, leases, and exchanges of water in each issue. (31) See George A. Gould, Water Rights Transfers and Third-Party Effects, 23 Land & Water L. Rev. 1, 22-25

(1988); see generally 2 Waters and Water Rights [sections] 16.02(b) (Robert E. Beck ed., 1991 & Supp. 1995) (outlining the effect of the no-injury rule on reallocation proceedings). Another factor impeding water transfers is the requirement of most states that instream flow rights must be held by the state--something many private transferors find objectionable. See Kristine A. Klein, The Constitutional Mythology of Western Water Law, 14 Va. Envtl. L.J. 343, 364 n.131, 377-79 (1995). (32) See Brandon Loomis, Water Users Alter Support for Drawdown, Post-Register (Idaho Falls, Idaho), June 21, 1995, reprinted in Clearing Up, July 3, 1995 (reporting that the Henry's Fork Watershed Council opposes water purchases to increase flows in the lower Snake River). James D. Crammond also reports widespread resistance to water leases for environmental purposes through the Pacific Northwest. See James D. Crammond, Leasing Water Rights for Instream Flow Uses: A Survey of Water Transfer Policy, Practices, and Problems in the Pacific Northwest, 26 Envtl. 225, 240 (1996). (33) See generally Kenneth R. Weber, Effects of Water Transfers on Rural Areas: A Response to Shupe, Weatherford, and Checchio, 30 Nat. Resources J. 13 (1989) (focusing on Crowley County, Colorado). (34) See H.B. 3100, 68th Leg., Reg. Sess. (1995). (35) See, e.g., Helen Ingram & Cy R. Oggins, The Public Trust and Community Values in Water, 32 NAT. Resources J. 515 (1992). (36) 2 Waters and Water Rights, supra note 31, [sections] 12.03(c)(2). (37) See David Hallford, Environmental Regulations as Water Rights Takings, 6 Nat. Res. & Env't 13, 55-56 (1991) (arguing that historical water uses constitute beneficial uses). (38) See A. Dan Tarlock et al., Water Resource Management: A Casebook in Law and Public Policy 209-10 (4th ed. 1993). Some of those rare occasions include Tulare Irrigation Dist. v. Lindsay-Stratmore Irrigation Dist., 45 P.2d 972, 1007 (Cal. 1935) (holding that drowning gophers through flood irrigation is not a water right); Warner Valley Stock Co. v. Lynch, 336 P.2d 884, 891 (Or. 1959) (holding that overflow diversion is not a right, but a privilege not contingent on the elimination of wasteful methods of water removal); Fairfield Irrigation Co. v. White, 416 P.2d 641, 644 (Utah 1966) (holding that the wasteful flooding of fields during the nonirrigation season must be balanced against the public's interest in using the water for other purposes).

(39) See generally 2 WaterS and Water Rights, supra note 31, [sections] 12.03(c)(2); Klein, supra note 31, at 348-52, 357-59; Joseph L. Sax, The Constitution, Property Rights, and the Future of Water Law, 61 U. Colo. L. Rev. 257 (1991). (40) The limit of required conservation measures, however, may be those that are "financially and physically feasible" and "within practicable limits." See Colorado v. New Mexico, 467 U.S. 310, 319 (1984).

(41) 852 P.2d 1044 (Wash. 1993).

(42) Id. at 1053. ("While customary irrigation practices common to the locality are a factor for consideration, they do not justify waste of water.... Local custom and the relative efficiency of irrigation systems in common use are important elements, but must be considered in connection with other statutorily mandated factors, such as the costs and benefits of improvements to irrigation systems, including the use of public and private funds to facilitate improvements.") (43) Id. at 1055 (concluding that "the concept of beneficial use . . . operates as a permissible limitation on water rights"). (44) See Joseph L. Sax, The Limits of Private Rights in Public Waters, 19 Envtl. L. 473 (1989).

(45) See generally Symposium, Public Trust and the Waters of the American West: Yesterday, Today and Tomorrow, 19 Envtl. L. 425 (1989).

(46) See Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public 7,rust in Western Water, 37 Aruz. L. Rev. 701, 736 (1995).

(47) Idaho Conservation League v. State of Idaho, 1995 WL 515240 (Idaho Aug. 31, 1995). The court did rule that the public trust doctrine was inapplicable to comprehensive basin adjudications because adjudications determine priorities only among diverters. Id. (48) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994). On the application of the Endangered Species Act to state water rights, see Melissa K Estes, The Effect of the Federal Endangered Species Act on State Water Rights, 22 Envtl. L. 1027, 1050-57 (1992); A. Dan Tarlock, The Endangered Species Act and Western Water Rights, 20 Land & Water L. Rev. 1, 26-29 (1985).

(49) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [subsections] 1251-1387 (1994); see Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 513 (10th Cir. 1985) (holding that the Clean Water Act applies to state water rights); Michael C. Blumm, The Rhetoric of Water Reform Resistance: A Response to Hobbs' Critique of Long's Peak, 24 Envtl. L. 171, 181-84 (1994). (50) See Old Dams, New Prospects, The Oregonian, Aug. 7, 1994, at K2. (51) 16 U.S.C. [subsections] 791-828c (1994); see 4 Waters and Water Rights, supra note 31, [sections] 40.10.

(52) Sayles Hydro Assocs. v. Maughan, 985 F.2d 451, 454-56 (9th Cir. 1993)

(Federal Power Act occupies regulatory field, preempting the requirement of a state water right for proposed project); Washington Dep't of Game v. Federal Power Comm'n, 207 F.2d 391, 395-96 (9th Cir. 1953). However, states may condition and even veto nonfederal projects through their water quality certification authority under section 401 of the Clean Water Act, 33 U.S.C. [sections] 1341 (1994). See PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, 114 S. Ct. 1900, 1914 (1994).

(53) The Hells Canyon complex consists of Hells Canyon, Oxbow, and Brownlee Dams; the latter dam is a large storage dam.

(54) See Blumm, supra note 1, at 675; Blumm, supra note 8, at 241.

(55) See National Marine Fisheries Serv., U.S. Dep't of Commerce, Biological Opinion: Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power System and Juvenile Transportation Program in 1995 and Future Years 101 (1995) (calling for the release of stored water at Brownlee Reservoir to help meet flow objectives for endangered salmon, if necessary); Northwest Power Planning Council, 1994 Columbia River Basin Fish and Wildlife Program 5-22 to 5-23 (1994) (recommending the drafting of Brownlee to ensure the achievements of flow objectives in the Snake River for spring and summer migrating juvenile salmon). (56) See Steve Lundgren, ME Hatches Plan to Return Salmon to High Desert, Bend Bull., Feb. 11, 1996, at E1.

(57) PUD No. 1 of Jefferson County V. Washington Dep't of Ecology, 114 S. ct. 1900 (1994); see generally Katherine P. Ransel, The Sleeping Giant Awakens: PUD No. 1 of Jefferson County V. Washington Department of Ecology, 25 Envtl. L. 255 (1995). (58) 33 U.S.C. [sections] 1341 (1994).

(59) PUD No. 1, 114 S. ct. at 1912.

(60) Id. at 1912-13.

(61) See supra notes 57430 and accompanying text.

(62) George Cameron Coggins & Robert L. Glicksman, 3 Public Natural Resources Law[sections] 21.01[3][c], at 21-12 (1991).

(63) See 3 id. [subsections] 21.01[1], at 21-2 to 21-3 (infancy of concept); 21.01[31[a], at 21-9 (no agreed upon definition). But see 3 id. [sections] 21.01[2]1c], at 21-8 to 21-8.1 ("All of the legislative evidence is consistent with the notion that Congress means 'watershed' as short-hand for the proposition that federal lands should be managed to produce ecological stability and water quality as well as to insure adequate downstream water yield."). (64) Marble Mountain Audubon Soc'y v. Rice, 914 F.2d 179, 182-83

(9th Cir. 1990) (citizens may enforce state water quality standards against Forest Service timber sales through use of the Administrative Procedure Act); Oregon Natural Resources Council v. United States Forest Serv. 834 F.2d 842, 850-52 (9th Cir. 1987) (same); Northwest Indian Cemetery Protective Ass'n v. Peterson, 795 F.2d 688, 697 (9th Cir. 1986), (state water quality standards enforced against construction of logging road on federal land), rev'd on other grounds, 485 U.S. 439 (1988). (65) See Anne W. Squier, Water Quality, Water Quantity: The Reluctant Marriage, 21 Envtl. L. 1081 (1991) (summary of CLE conference of same title held at Northwestern School of Law of Lewis & Clark College, Feb. 22-23, 1991). (66) For elaboration, see David J. Cummings, Looking to the Water to Manage the Federal Lands: Citizens' and States' Ability to Ensure that Federal Land Managers Protect and Improve Water Quality (1995) (unpublished LL.M. thesis, Northwestern School of Law of Lewis & Clark College).

(67) National Forest Management Act of 1976, Pub. L. No. 101-626, tit. I, [sections] 105(a), 104 Stat 4427 (codified as amended in scattered sections of 16 U.S.C.). (68) 16 U.S.C. [subsections] 1604(g)(3)(E)(iu) (water quality), 1604(g)(3)(F)(v) (watershed) (1994). (69) Sierra Club v. Cargill, 732 F. Supp. 1095, 1100-01 (D. Colo. 1989) (declaring inadequate a seven-year regeneration plan for the Bighorn National Forest).

(70) See generally Teresa Rice, Beyond Reserved Rights: Water Resource Protection for the Public Lands, 28 Idaho L. Rev. 715, 719-39 (1992).

(71) See U.S. Forest Serv. & Bureau of Land Mgmt., Final Supplemental Environmental Impact Statement on Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotten Owl (1994).

(72) Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occured at Oklahoma City, and Rescissions Act of 1995, Pub. L. No. 104-19, [sections] 2001, 109 Stat. 194, 24047.

(73) Northwest Forest Resources Council v. Glickman, No. 95-6244-HO (D. Or. Sept. 8, 1995) (agreeing with forest industry plaintiffs that [sections] 2001(k) of the salvage law requires the Forest Service and BLM to issue timber sale contracts that were subject to [sections] 318 Pub. L. No. 101-121, an earlier timber harvest rider); Northwest Forest Resource Council v. Glickman, No. 95-6244-HO (D. Or. Jan. 10, 1996) (concluding that [sections] 2001(k) requires issuance of timber sale contracts on all lands opened for bid between October 1989 and July 1995 unless an Endangered Species Act-protected bird is "known to be nesting" within the sale unit); Northwest Forest Resource Council v. Glickman, No. 95-6244-HO (D. Or. Jan. 19, 1996) ([sections] 2001(k)(2), which exempts from timber sales units in which an Endangered Species Act-protected bird is "known to be nesting," exempts only areas in which the Forest Service or BLM has made findings that a marbled murrelet is 1) currently, 2) nesting, 3) within a sale unit). See generally Michael Axline, Forest Health and the Politics of Expediency, 26 Envtl. L. (forthcoming 1996). (74) See Final Money Bill Hits Administration Forestry Initiatives, Pub. Lands News, Sept. 28, 1995, at 9 (noting that a House-Senate conference committee on the fiscal year 1996 appropriations bill directed that ecosystem management in the Columbia Basin be sharply curtailed); Scott Sonner, Columbia Basin Environmental Study Vital to Wildlife, Forest Chief Says, The Oregonian, Feb. 18, 1996, at D2 (Forest Service Chief Jack Ward Thomas explaining the importance of ecosystem management studies as a means of avoiding litigation). (75) See Eric Lemelson, Dungeness Basin Site of Innovative Watershed Management Group, Big River News, Winter 1996, at 1 (noting an agreement by farmers to reduce diversions in order to increase streamflows for salmon); Brett Swift, Henry's Fork Watershed Council: An Experiment in Local Decision Making, Big River News, Winter 1996, at 6 (citing the Henry's Fork Watershed Council as an example of "the shift away from centralized management to local, watershed based decision making). See generally Natural Resources L. Ctr., Univ. of Cold., The Watershed Source Book (1996). (76) See Wallace Stegner, Beyond the Hundredth Meridian 332 (1954), cited in John M. Volkman & Kai N. Lee, Within the Hundredth Meridian: Western States and Their River Basins in a lime of Transition, 59 U. Colo. L. Rev. 551, 553-54 (1988). (77) See generally 4 Waters and Water Rights, supra note 31, ch. 37 (discussing reserved water rights).

(78) The McCarran Amendment was enacted as [sections] 208 of the Department of Justice Appropriation Act for 1953, ch. 495, 66 Stat. 556, 570 (codified at 43 U.S.C. [sections] 666 (1994)).

(79) See 4 Waters and Water Rights, supra note 31, [sections] 37.04(a)(1).

(80) See, e.g., United States v. City & County of Denver, 656 P.2d 1, 27 (solo. 1982) (no reserved water rights for recreation on the Yampa River within Dinosaur National Monument); In re Reserved Water Rights in the Platte River, Nos. W-8439-76 (solo. Water Div. 1, Feb. 12, 1993) (no reserved water rights for channel maintenance in national forests); Mimbres Valley Irrigation Co. v. Salopek, 564 P.2d 615

(N.M. 1977), aff'd sub nom., United States v. New Mexico, 438 U.S. 696 (1978)

(no reserved water rights for fish and wildlife in national forests); In re General Adjudication of All Rights to use Water in the Big Horn Sys., 835 P.2d 273, 278-79 (Wyo. 1992) (reserved water rights for irrigation may not be transferred to instream purposes without complying with state law); In re General Adjudication of All Rights to Use Water in the Big Horn Sys., 753 P.2d 76, 98-100 (Wyo. 1988) (no reserved water rights for fish on Wind River Indian Reservation absent a treaty provision; no reserved groundwater rights). (81) See Arizona v. California, 376 U.S. 340, 344-45 (1964)

(awarding four lower Colorado River tribes approximately 900,000 acre-feet of water); In re Big Horn, 753 P.2d 76, 100-12 (Wyo. 1988) (awarding the Wind River Reservation tribes over 500,000 acre-feet of water); see also 4 Waters and Water Rights, supra note 31, [sections] 37.02(c)(1). (82) See 4 Waters and Water Rights, supra note 31, [sections] 37.02(c)(1). (83) See, e.g., Joint Bd. of Control of Flathead, Mission & Jocko Irrigation Dists. v. United States, 832 F.2d 1127, 1131-32 (9th Cir. 1987) (preserving aboriginal fishing rights and the water needed to support those rights on the Flathead Reservation), cert. denied, 486 U.S. 1007 (1988); United States v. Adair, 723 F.2d 1394, 1412-15 (9th Cir. 1983) (confirming reservation of water to support hunting and fishing rights of the Klamath Tribe), cert. denied, 467 U.S. 1252 (1984); Colville Confederated Tribes v. Walton, 647 F.2d 42, 4748

(9th Cir. 1981) (finding an implied reservation of water for the development and maintenance of fishing grounds for the Colville Tribe), cert. denied, 454 U.S. 1092 (1981). (84) See United States v. Washington, 384 F. Supp. 312, 358-82 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 443 U.S. 1086 (1976) (determining "usual and accustomed" off-reservation fishing grounds of Stevens Treaty tribes). (85) See 4 Water and Water Rights, supra note 31, [sections] 37.02(c)(3), at 230-32 (suggesting a needs-based standard). But cf. Nez Perce Tribe v. Idaho Power Co., 847 F. Supp. 791, 807-17 (D. Idaho 1994) (denying an award of monetary damages to the Nez Perce Tribe for destruction of fisheries and suggesting that there are no property rights in the treaty fishery promise).

(86) 6 Indian L. Rep. F-129 (E.D. Wash. 1979), aff'd in part, 736 F.2d 1358

(9th Cir. 1984). (87) Id. (ordering a minimum stream flow of 20 cubic feet per second to maintain the 68 degree water temperature necessary for native trout survival). For further discussion regarding Anderson, see Blumm, supra note 8, at 286-87. (88) 647 F.2d 42 (9th Cir. 1981).

(89) Id. at 48

(90) 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984).

(91) Id. at 1412-15 (employing "time immemorial" priority date for water rights for hunting and fishing; employing date of reservation priority date for water rights or irrigation). (92) Id. at 1414-15

(93) 850 P.2d 1306 (Wash. 1993).

(94) Id. at 1310, 1322-25.

(95) See Department of Ecology v. Yakama Reservation Irrigation Dist., No. 77-2-01484-5 (Super. Ct. of Wash. for Yakima County Mar. 1, 1995) (tributary order); id. (Apr. 13, 1995) (flushing flows order), reprinted in Water Policy and Sustainability in the Columbia River Basin (Northwest Water Law & Policy Project ed., 1995) (panel on Treaty Rights and River Flows).

(96) A number of cases have recognized a "time immemorial" priority date for reserved water rights for fish. Joint Bd. of Control of Flathead, Mission & Jocko Irrigation Dists. v. United States, 832 F.2d 1127, 1131 (9th Cir. 1987), cert. denied, 486 U.S. 1252 (1988); United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984); State v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754, 764 (Mont. 1985); Department of Ecology v. Yakima Reservation Irrigation Dist., 850 P.2d 1306, 1310 (Wash 1993). (97) Confederated Tribes of the Umatilla Indian Reservation v. Callaway, No. 72-211 (D. Or. Aug. 17, 1973), discussed in Blumm, supra note 8, at 260.

(98) See Eric Lemelson, Dungeness Basin Site of Innovative Watershed Management Group, Big River News, Winter 1996, at 1, 1.

(99) See 4 Waters and Water Rights, supra note 31, [sections] 37.04(c)(1).

(100) Water Policy and Sustainability in the Columbia Basin (Northwest Water Law & Policy Project ea., 1995). (101) See Colloquium, Who Runs the River?, 25 Envtl. L 349 (1995). (102) See ECONorthwest, The Columbia River and the Economy of the Pacific Northwest (Northwest Water Law & Policy Project ed., 1995); Janis E. Carpenter, Enforcement of Instream Water Rights (Northwest Water Law & Policy Project ea., 1995); Dar Crammond, Screening Water Diversions: A Survey of Policy, Practices, and Compliance in the Pacific Northwest, 2 Animal L. (forthcoming 1996); Blumm & Schwartz, supra note 46; Chris Watson, Relicensing the Northwest: A Study of the Condit Hydroelectric Project (Northwest Water Law & Policy Project ea., 1995). These publications are available from Northwest Water Law & Policy project, Northwestern School of Law of Lewis & Clark College, 10015 S.W. Terwilliger Blvd., Portland, OR 97217, [phone]. (103) See generally 1 & 2 Big River News (1994-1996).

(104) David H. Getches, Changing the River's Course: Western Water Policy Reform, 26 Envtl. L. 157, 160 (1996).

(105) Id. at 163.

(106) See, e.g., Symposium, The Republican Civic Tradition, 97 Yale L.J. 1493

(1988); Jonathan Poisner, A Civic Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation, 26 Envtl. L. 53 (1996).

(107) James D. Crammond, Leasing Water Rights for Instream Flow Uses: A Survey of Water Transfer Policy, Practices, and Problems in the Pacific Northwest, 26 Envtl. L. 225 (1996)

(108) Id. at 240.

(109) Id. 254.

(110) Reed D. Benson, A Watershed Issue: The Role of Streamflow Protection in Northwest River Basin Management, 26 Envtl. L. 175 (1996).

(111) Id. at 199.

(112) Id. at 222.

(113) Shauna Marie Whidden, The Hanford Reach: Protecting the Columbia's Last Safe Haven for Salmon, 26 Envtl. L. 265 (1996).

(114) Id. at 267.

(115) Id. at 289.

(116) Id. at 291; see also Eric Lemelson et al., Difficult Choices Face Policymakers on Future of Hanford Area, Big River News, Fall 1995, at 1, 10-13.

(117) Joy Ellis, Drafting An Overdrawn Account: Continuing Water Diversions from the Mainstem Columbia and Snake Rivers, 26 Envtl. L. 299 (1996).

(118) Id. at 318.

(119) Id. at 320 120

(120) See supra notes 102-03.

Michael C. Blumm, Professor of Law, Northwestern School of Law of Lewis & Clark College; Director, Northwest Water Law & Policy Project. My colleagues Janet Neuman and Dan Rohlf made helpful comments on a draft of this paper, which was presented to the Fourth Annual Idaho Rivers Symposium in Twin Falls, Idaho on March 1, 1996. Steven Hull supplied able editorial assistance.