Historic Washington Act Seeks to Manage Water in the Columbia River BasinBy Jeff Kray
In February 2006, Washington State enacted a “Columbia River Basin – Water Supply” Act which seeks, for the first time, to provide the Basin with an overall management plan. The Act directs the Washington Department of Ecology (“Ecology”) to “aggressively pursue the development of water supplies to benefit both instream and out-of-stream uses.” According to Ecology, the Act’s “Columbia River Water Resource Management Program will allow access to the river’s water resources while providing adequate protection for endangered salmon and other species.” The Center for Environmental Law & Policy (CELP) and others have sharply questioned whether the Act will in fact achieve this balance. On March 22, 2006, the State moved the Act another step forward by passing a $200 million bond to fund a “Columbia River Basin Water Storage and Supply Account” without which the Act would have expired. The next major step is for Ecology to prepare a preliminary water evaluation and seek public comment. As is historically the case with any issue involving the Columbia River, debate about how to slake the thirsts of the myriad interests in the River’s water will continue to be lively.
The Columbia River is a national icon. It flows 1,200 miles from the Canadian Rockies in southeastern British Columbia to the Pacific Ocean at Astoria Oregon. The “Mighty Columbia” connects a 259,000 square mile basin that drains from seven states – Washington, Oregon, Idaho, Montana, Nevada, Wyoming, and Utah; one Canadian Province - British Columbia; and thirteen federally recognized Indian reservations. The Basin’s waters are used to irrigate crops, transport goods, supply domestic water, and sustain natural resources, particularly salmon.
Although the River and its Basin are vast the resource is finite. Since Washington adopted a Water Code in 1917, the state has allocated 768 surface water and 1,379 groundwater rights on the Columbia River mainstem. The Columbia River Basin contains over six million acres of irrigated agriculture. The United States Bureau of Reclamation (Reclamation) is allocated about two-thirds of the water from the River, making it the River’s single largest water user on the mainstem. The Basin is also the home to numerous salmon and steelhead species and was, historically, the world’s largest salmon producing river system. Water withdrawals, dam building, and other human activities have compromised the Basin’s ecological health and many of the Basin’s fish are now listed as threatened or endangered under the Endangered Species Act.
Despite the competing interests in Basin, Washington has never had a plan to manage the resource. As a partial result, Columbia River water rights have long been a source of substantial litigation. For a recent example, see Kennewick Hospital District v. Pollution Control Hearings Board, 126 Wash. App. 1030, 2005 WL 697224 (Div. III, 2005)(unpublished opinion), review denied. In Kennewick Hospital, the Washington Court of Appeals held that Ecology failed to comply with rules governing allocation of Columbia River water that require Ecology to “consult” with appropriate federal, state, and local agencies, and Indian tribes before approving water right applications. Indicative of the level of litigation surrounding water rights on the Columbia, the Kennewick Hospital case arose after Ecology issued water rights as a result of a settlement reached in another case, Columbia Snake River Irrigators Association v. Department of Ecology, Benton County Superior Court No. 97-2-01041-9.
When Washington Governor Christine Gregoire signed the Columbia River Basin Act she described it as Washington’s “road map” toward resolving a “long-standing water management stalemate on the Columbia River.” The Act was a product of a legislative Task Force that Governor Gregoire empanelled to work with representative from many potentially affected parties to develop an outline of the water management program. Those parties included the Association of Washington Business (AWB), the Washington Environmental Council (WEC), and American Rivers. The Act passed with diverse support and by overwhelming majorities in both the House and Senate.
The Act does not require but very well may result in building new off-river water storage facilities. The Act allocates two-thirds of funds placed in the Columbia River Account to developing new water storage facilities and one-third to other purposes, such as improving existing storage and funding conservation projects. However, prior to expending funds from the Act’s accounts, Ecology must evaluate the following:
- Water uses to be served by any new storage facilities;
- The quantity of water necessary to meet those uses;
- Benefits and costs to the state of meeting those uses, including short-term and long-term economic, cultural, and environmental effects; and
- Alternative means of supplying water to meet those uses.
Ecology will begin its preliminary evaluation and start seeking new water resources in Eastern Washington after the Act takes effect on July 1, 2006. The agency has already prepared some information likely to find its way into the preliminary evaluation.
Since January 2004, Ecology has commissioned three reports related to the Columbia River’s future. First, in January 2004, the University of Washington released a report on the “Economics of Columbia River Initiative”. The report emphasized the relationship between water use and economic productivity in Eastern Washington. Second, in March 2004 the National Academy of Sciences (NAS) released its study “Managing the Columbia River: Instream Flows, Water Withdrawals, and Salmon Survival.” NAS prepared the study under a state contract seeking a review of existing science related to fish survival and hydrology in the Columbia River. Third, in December 2005, MWH Americas, Inc., an environmental consulting firm, published a study of surface water and groundwater storage sites in Washington. That study was prepared for Ecology and the U.S. Bureau of Reclamation to identify and preliminarily assess potential dam sites within ten miles of the Columbia River mainstem with the potential to hold 300,000 acre-feet of water. The study concluded that the “availability of noncommittal water is seasonal, therefore water storage becomes the only practical method to take advantage of any available flow. Since additional instream storage on the mainstem Columbia River is not considered feasible, off-channel storage becomes the only feasible option.”
The Act also gives Ecology specific authority to enter into voluntary regional agreements “for the purpose of providing new water for out-of-stream use, streamlining the application process, and protecting instream flow.” In entering into voluntary agreements, Ecology must make efforts to harmonize such agreements with watershed plans adopted under Washington’s watershed planning laws, chapter 90.82 RCW. Any such agreements must also pass through two comments periods. The first comment period is a 60-day consultation period for county legislative authorities, appropriate watershed planning groups, the Washington Department of Fish and Wildlife, affected tribal governments, and federal agencies. Following the 60-day consultation period, agreements must also go through a 30-day public review and comment period before they are finalized. The Act does not exempt water rights granted under these agreements from the current legal requirements for obtaining water rights.
Ecology has indicated that it will immediately begin to pursue new water resources in Eastern Washington. These efforts will include: developing an alternative feed route for the Potholes Reservoir; making modifications to Pinto Dam; developing water conveyance facilities to the Odessa Subarea; providing mitigation for the drawdown of Lake Roosevelt under an Agreement in Principle with the Confederated Tribes of the Colville Reservation; completing Appraisal and Feasibility reviews of storage sites identified by the U.S. Bureau of Reclamation; and initiating conservation projects identified in cooperation with the Washington Conservation Commission and other local partners. Ecology has also indicated that its long term commitments under the Act are to: study and develop new storage on the mainstem Columbia River in a manner that provides water resources for of out-of-stream use while resulting in benefits to endangered species; study and implement improved water management operations of facilities on the Columbia River; pursue ongoing water conservation projects; and pursue other efforts designed to reduce barriers to efficient allocation and marketing of scarce water resources.
By November 15, 2006, Ecology must complete its first “Columbia River Water Supply Inventory” and its first “Columbia River Long-term Water Supply and Demand Forecast.” Ecology must update the Inventory annually and must update the Forecast every five years. In developing both the Inventory and the Forecast, Ecology is required to work with counties, watershed planning groups, and affected tribal governments. The Inventory must include: (a) a list of conservation projects implemented under the Act and water amounts conserved and (b) a list of potential water supply and storage projects, including estimates of cost per acre-foot; benefit to fish and other instream needs; benefit to out-of-stream needs; and environmental and cultural impacts.
Finally, the Act requires Ecology to establish and maintain a Columbia River mainstem “water resources information system.” This system is intended to provide information necessary for effective resource planning and management. The Act says that Ecology shall use information compiled by existing local watershed planning groups, federal agencies, the Bonneville Power Administration, irrigation districts, and conservation districts. Ecology must publish data from the information system by June 30, 2009 and then periodically update the data.
When Governor Gregoire signed the Act she issued a press release stating that the “gridlock is broken.” Those involved in creating the Act tend to agree. The Act’s supporters included the Association of Washington Business (AWB), which said the law is “a big victory for the business community and … a major step toward resolving the myriad water rights issues in the Columbia Basin.” Similarly, American Rivers said that “[f]ishing and agricultural communities along the Columbia River will benefit from [the Act]” and that it “will improve water supplies while protecting river health.”
Some proponents of the Act, such as American Rivers, also support removing four major federal dams on the Columbia. Despite what may appear to be contradictory policies, American Rivers believes the Act will “help protect against further declines in Columbia River flows during critical periods for salmon and steelhead” and that problems with the dams must be addressed at the dams themselves. With regard to the possibility of future large-scale dam-building, American Rivers believes that the Act should prevent such an outcome by its requirements of both a comprehensive needs and alternatives analysis and of a storage and conversation project inventory.
However, not everyone feels buoyant about the Act. A biologist for the Inter-Tribal Fish Commission said “[w]e were absolutely amazed, and somewhat appalled” by the Act and, in particular, about what he perceived as inadequate consultation in the process which resulted in the Act. The Commission works on behalf of the Yakama, Umatilla, Warm Springs, and Nez Perce tribes. Similarly, the Center for Environmental Law and Policy (CELP), a non-profit organization, recently wrote about the Act that “[w]hen government shuts out key information, government risks making bad decisions – and that is what happened when Olympia produced the new Columbia River Management Plan.” In addition to criticizing the process, the Center has concerns about whether the Act will adequately protects river flows and senior water rights and about whether the Act encourages dams and water storage over the environment.
The Puget Sound Business Journal recently wrote that the Act “paves the way for state and local authorities to try to persuade the federal government to help pay for new reservoirs.” Whether the Act will result in new reservoirs is, by design, an open question. What is clear is that Washington is investing in gathering information and organizing its resources toward more actively managing water from the Columbia River and toward seeking new ways to address competing demands on that iconic resource. That process has just begun. Time, money, and much lively debate will tell whether those steps will achieve the Act’s goal of developing water supplies to benefit both instream and out-of-stream uses.
For more information, contact Jeff Kray.
This article is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Read our complete legal disclaimer.