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The Columbia River Treaty Review: Will the Water Users’ Voices Be Heard?

November 17, 2014

Despite the great collaborative effort invested in the regional negotiations on the future of the Columbia River Treaty (“CRT”), relatively little attention has been paid to potential new consumptive uses of the Columbia River water, and the important water supply choices that will have to be made to enable those uses. Discussions of future water supply allocation will regrettably be deferred, while ecosystem-based functions would be elevated to be co-equal with flood control and hydropower in the Regional Recommendations.

Beginning on September 16, 2014, the United States and Canada have been able, with 10 years’ notice, unilaterally to opt out of the CRT, a landmark agreement that for the last half century has shaped many of the Pacific Northwest’s most important waters. When the two nations entered into the CRT in 1964, their central focus was on flood control and hydroelectric power generation. Today, as the United States and Canada prepare to engage in negotiations that will determine the future of the CRT, a host of new interests and stakeholders are weighing in. While much has been said about the values of flood control, hydropower, and, increasingly, ecosystem-based function, there are many voices in Oregon, Washington and Idaho that would have the negotiators hear more clearly an equally important concern: the use of Columbia Basin water to irrigate the region’s many farms and ranches.

Background: the 1964 Columbia River Treaty

Draining a combined 219,000 square miles in the states of Washington, Oregon, Idaho, Montana, Wyoming, Nevada and Utah and an additional 39,500 square miles in British Columbia, the Columbia River system is the dominant river system in the Pacific Northwest.[1] In an average year, the Columbia’s runoff at its mouth is approximately 198 million acre feet, the second-highest total in the United States.[2] Although flows in the Columbia and its tributaries are, as a result of coordinated management, relatively predictable today, this was not always the case. To the contrary, the massive amounts of water that flow through the Columbia were historically subject to wild fluctuation – flows at the Canadian border could range anywhere from 14,000 to 550,000 cubic feet per second (cfs).[3] This enormous variation historically led, not surprisingly, to severe flooding. In 1948, for example, the Columbia and its tributaries flooded from British Columbia to the coast and destroyed Vanport, then Oregon’s second-largest city at 30,000 people.[4] The CRT, which was signed in 1961 and went into effect in 1964, grew out of the United States’ and Canada’s mutual interest in controlling and harnessing this powerful and unpredictable river system.

At the CRT’s core are two key components. The first is Canada’s pledge to provide over 15 million acre-feet of reservoir space “usable for improving the flow of the Columbia River,”[5] and to operate this storage to maximize hydroelectric power generation and limit flooding in the United States and Canada.[6] The second is the United States’ promise to pay Canada for these benefits.[7]

Two “entities” implement the CRT; the U.S. Entity comprises the Bonneville Power Administrator and the Northwestern Division Engineer of the U.S. Army Corps of Engineers, while the Canadian Entity is the British Columbia Hydro and Power Authority (“B.C. Hydro”).[8] To ensure predictable and coordinated operations, the CRT requires the U.S. and Canadian entities to prepare Assured Operating Plans several years in advance of each operating year.[9]

The terms of the CRT permit either the United States or Canada to terminate the CRT “at any time after the Treaty has been in force for sixty years if it has delivered at least ten years written notice to the other….”[10] Because the CRT has been in effect since September 16, 1964, although neither party has done so already, the United States or Canada can now provide termination notice at any time. However, not all provisions of the CRT will continue indefinitely until one of the parties opts out. In particular, the CRT’s current flood-control provisions, whereby Canada guarantees a certain amount of reservoir space to mitigate flooding in the United States, will expire in 2024.[11] Should the current CRT remain in effect thereafter, Canada will be required to operate its reservoirs to mitigate downstream flooding only when “called upon” by the United States to do so.[12] The United States, in turn, may not call upon Canada to deliver storage space unless it meets its “obligation to use all available storage in U.S. reservoirs that can be effective in managing downstream flood peaks.”[13]

Out-of-Stream Water Use in the Columbia Basin

The original CRT used the word “irrigation” only once,[14] and “consumptive use” twice.[15] The phrase “water supply” does not appear at all. In other words, the CRT, which focused almost solely on hydropower and flood control, gave virtually no thought to consumptive water uses. That the CRT largely ignored out-of-stream water uses, however, is not to say they are unimportant in the Columbia Basin. Far from it. In the United States alone, approximately 7.1 million acres are currently under irrigation in the Basin.[16] As measured at The Dalles, Oregon, 9 percent of the Columbia’s flow is diverted for agriculture.[17] Right now, there is considerable demand among irrigators for more.

Oregon serves as an instructive illustration of this pent-up demand. While farms and ranches in Eastern Washington benefit from water projects on the Columbia, chief among them the Grand Coulee, there are in Oregon water rights to draw only 442,000 acre-feet (per year) from the mainstem Columbia.[18] Put differently, of the millions of acres under irrigation in the Columbia River Basin, the mainstem Columbia currently supplies water to only 125,000 acres in Oregon.[19] Currently, there are conceptual plans that, if realized, could result in irrigation of perhaps 24,000 to 40,000 additional acres in Oregon with Columbia River water; even this relatively small increase could add millions of dollars to the Eastern Oregon economy. Despite flows on the Columbia as measured at The Dalles averaging 190,000 cfs[20] (376,865 acre-feet per day), though, the practical ABCs in Eastern Oregon are, if you want water, look “anywhere but the Columbia.”

Oregon’s current effective ban on diverting water from the Columbia has its roots in the 1991 and 1992 Endangered Species Act listing of several Snake River salmon runs.[21] In response to these listings, the Northwest Power Planning Council (“NPPC”) adopted an updated Fish and Wildlife Program.[22] Oregon, for its part, adopted regulations imposing new public interest standards to review new appropriations in the Upper Columbia River Basin, commonly referred to as the “Division 33 Rules.” These rules, which require consistency with the 1994 NPPC program,[23] preclude new appropriations of direct streamflow or hydraulically connected groundwater from the Columbia above Bonneville Dam from April 15 to Sept 30, with very limited exceptions.[24] Further reducing the availability of Columbia River water, the Oregon Water Resources Department, acting together with the Oregon Department of Fish and Wildlife, has imposed so-called “fish persistence” limitations on existing but undeveloped water permits. Meanwhile, certain imperiled groundwater aquifers near the Columbia River have been heavily restricted, further reducing available water.[25] Thus, while there is considerable demand in Eastern Oregon for Columbia River water, demand that, if satisfied would be accompanied by significant potential for economic growth, Oregon has for decades prohibited virtually all new appropriations from the mainstem Columbia upstream from Bonneville Dam.[26] From the perspective of most water users in Eastern Oregon, then, the Columbia River is a stranded asset – although the water is physically there, current regulations as a practical matter render it off limits, out of bounds, and unavailable for contribution to the economy.

Because of the value of the Columbia and its tributaries to water users in the Pacific Northwest, negotiations regarding the future of the CRT have assumed great importance to that community. Out-of-stream water use, however, is just one of many interests vying for attention as the United States and Canada prepare to revisit the Treaty.

Treaty Review Process: the U.S. Entity’s Regional Recommendation

From this point forward either the United States or Canada may, as noted, terminate the CRT with 10 years’ notice. And, even if neither nation opts out, certain important provisions relating to flood control will expire automatically in 2024. In anticipation of these changes, the U.S. Entity has, over the last several years, worked to formulate a recommendation to the Department of State, the agency tasked with representing the United States in CRT negotiations. In particular, the U.S. Entity formed the Sovereign Review Team (SRT), made up of representatives from states, tribal governments and federal agencies in the Northwest, to assist it in preparing a recommendation intended to represent the region’s interests.[27] The SRT, in turn, was supported by the Sovereign Technical Team, which completed studies and provided other information to inform the SRT and U.S. Entity.[28]

In December, 2013, the U.S. Entity issued its final Regional Recommendation (Recommendation) to the Department of State. This document sets forth the U.S. Entity’s goals for the future of the CRT, describes the general principles that drive the Recommendation, and makes certain specific recommendations.

The region’s goal, according to the U.S. Entity, is to “ensure[] a more resilient and healthy ecosystem-based function throughout the Columbia River Basin while maintaining an acceptable level of flood risk and assuring reliable and economic hydropower benefits.”[29] Thus, the Recommendation elevates ecosystem-based function to the status of primary purpose, placing it on the same plane as the CRT’s traditional purposes of flood control and hydropower. But while the Recommendation’s goal is focused on advancing these interests, it also aims, somewhat as an afterthought, to “recogniz[e] and implement[] all authorized purposes,” including, for example, irrigation.[30]

The Recommendation also lists a number of general principles that “underlie [the] recommendation and a modern approach to the Columbia River Treaty.”[31] These include: coordinating operation of Treaty and non-treaty reservoirs to maximize benefits for “ecosystem, hydropower, and flood risk management, as well as water supply, recreation, navigation,” and other uses; ensuring the post-2024 CRT is of sufficient duration and flexibility; basing continued operations on the best available science; ensuring that U.S. projects will continue to comply with applicable laws; developing a strategy for adapting the CRT to climate change; and ensuring that the costs and benefits of future CRT operations, including the costs and benefits of ecosystem health, are allocated fairly.

In addition to these general principles, the Recommendation makes a number of specific suggestions. These recommendations focus primarily on hydropower, flood risk management and ecosystem-based function, but also include briefer recommendations regarding water supply, navigation, recreation, and climate change.[32]

The Recommendation also suggests that a number of issues not be a part of Treaty negotiations, but instead be resolved through future domestic processes.[33] These are: re-thinking current flood risk policies in order to enhance summertime flows; allocating additional flows resulting from new Treaty operations; addressing potential changes to Bonneville Power Administration rates; developing a framework for post-2024 Treaty implementation; advancing flood plain reconnection; creating a “structured domestic advisory mechanism to assist, inform, and advise the Department of State in the negotiations phase”; and reviewing the membership of the U.S. Entity itself.[34]

Implications and Concerns for Water Users

Should the United States and Canada allow the current Treaty to continue as-is beyond 2024, there likely will be significant impacts on water users in the Pacific Northwest. We noted above that the Treaty’s current flood control provisions expire in 2024. Currently, Canada sets aside a certain amount of reservoir space for downstream flood prevention.[35] After 2024, however, Canada will be required to operate its reservoirs for flood control only when “called upon” by the United States to do so, an option only available to the United States after it has exhausted the effective use of its own reservoirs for flood control purposes.[36] Although there is some disagreement between the two nations as to what “called upon” looks like in practice,[37] the effect on irrigation in the United States could be real:

[I]f United States reservoirs are being operated primarily to reduce flood peaks and duration, instead of the current coordinated operation between Canada and the United States, some of the U.S. reservoirs may be drawn down to lower water levels more frequently than they are now. . . .[This] may limit the ability to refill a reservoir at the end of the spring runoff. Failure to refill could affect the ability to meet other needs later in the season, such as providing water for irrigation, summer fish flows and recreation.[38]

Thus, for the water user, non-action would likely not be considered an acceptable alternative.

From a water user’s perspective, the U.S. Entity’s Recommendation for the future of the CRT is significant in several respects, some positive and hopeful, others much less so.

The Recommendation recognizes the continuing need for some consumptive uses of Colombia River Water.

While water users largely felt left out of early SRT discussions, the final Recommendation reflects interests other than hydropower, flood control, and ecosystem-based functions. In describing the U.S. Entity’s goals, for example, the Recommendation acknowledges that “important elements of a modernized Treaty are current and future water supply to help meet regional needs for irrigation, municipal and industrial use, in-stream flows, navigation, and recreation.”[39] The Recommendation also recognizes explicitly that “irrigation has a long and important history in the Columbia River Basin” and states that “[o]perations under a modernized Treaty should recognize irrigation as an important authorized purpose in the Basin.”[40] Perhaps most significantly, the final Recommendation states that “[t]he Treaty should allow the storage and release of water from Canada in the spring and summer for additional in-stream and out-of-stream uses, including irrigation and municipal/industrial uses.”[41] This is a critically important condition; additional Canadian storage for greater spring and summer releases means more water will be available in the Columbia in drier months, at least some of which could be earmarked for out-of-stream uses.

The Recommendation defers allocation decisions to a to-be-determined “domestic process.”

Although the Recommendation advocates increasing water availability in the United States in the spring and summer by increasing Canadian storage managed for that purpose, water users hoping for near-term means to unlock Columbia River water will be disappointed: the Recommendation punts on the question of how any such additional water should be allocated. Instead, it states that:

Any future water supply allocation decisions associated with a modernized Treaty should be subject to the requirement that they not adversely affect the operation of upstream reservoirs . . . , and be made through a future domestic process and be consistent with ecosystem-based function and water rights, including tribal reserved water rights.[42]

It is currently unclear not only when this process will begin, but even what it will look like.[43] The Recommendation offers scant guidance, stating only:

Pacific Northwest states, tribes, and appropriate federal agencies will design and initiate a process to allocate and manage any additional spring or summer flows for in-stream, irrigation, and municipal/industrial purposes derived through post-2024 Treaty operations. All water rights interests should be represented in this process. The U.S. Entity will incorporate decisions from this process into their post-2024 Treaty planning and operations. It is recognized that the states have authority to allocate and manage water pursuant to state law and consistent with other applicable law.

The Recommendation’s statement that “[a]ll water rights interests should be represented in this process,” is a significant victory for water users. Whether water users will ultimately benefit, though, remains to be seen. And while of course it is possible that the domestic process will yield results favorable to water users, there remain reasons to be less optimistic. It is noteworthy, for example, that water supply is clearly subordinated to ecosystem-based functions. From this alone, the sensible odds-maker might not place any of his own money on the future of new irrigation from the Columbia River in Eastern Oregon – the smart bet, given the river’s recent history, is probably on fish. In any event, there seems to be a minimum 10-year wait before any new water will become available under a renewed CRT, regardless of present demand.

The Recommendation raises ecosystem-based function to one of three primary Treaty purposes, co-equal with hydropower and flood control.

The Recommendation elevates “ecosystem-based function” to the level of a primary purpose, placing it alongside the Treaty’s historic purposes of power production and flood management – and therefore above other water uses.[44] Ecosystem-based function is certainly important, and the State of Oregon was among many in advocating for its co-equal priority with hydropower and flood control. From the perspective of many water users, however, it is unclear why ecosystem-based function should trump other water uses, as opposed to being balanced with them. It is similarly unclear how the elevation of ecosystem-based function will impact water supply and other CRT objectives in practice. As discussed previously, much will be worked out through the future domestic water allocation process. The Recommendation does, however, contain a statement that should inform this process that many water users will consider a bright spot:

It is essential to note in the reading of this recommendation that, while the inclusion of ecosystem-based function as a third primary purpose of this Treaty is being recommended, a very important balance of water management uses has been established in the Basin and its tributaries over the past 50 years. This recommendation respects the importance, complexity, and trade-offs of each of these many uses and the benefits that the region has strived to achieve.[45]

Moving Ahead

The U.S. Entity’s final Regional Recommendation has been issued, but this does not mean it is too late for interested parties to voice their opinions on the CRT. To the contrary, the Recommendation suggests that the Department of State:

establish and resource a structured domestic advisory mechanism to assist, inform, and advise the Department of State in the negotiations phase of this process. The Department of State should seek to involve a broad cross-section of regional parties in this mechanism. This mechanism may also be used to provide advice regarding additional work needed to address ecosystem-based function, hydropower, flood risk management, and other beneficial water uses.[46]

As they did during the process that produced the Recommendation, water users should endeavor to make themselves heard via this advisory mechanism. There are, after all, many important questions that remain unanswered. Is the promotion of ecosystem-based function completely contrary to consumptive use for irrigation and municipal use? If water is earmarked for irrigation, to what extent will the result be to harm fish? Is this truly a zero sum game? Must it be? At a recent conference on the CRT, Kathy Eichenberger, of British Columbia’s Ministry of Energy and Mines and Executive Director of the Columbia River Treaty Review Team, expressed her view that discussions need to be broadened beyond the framework of the Recommendation to incorporate “more diverse uses” of the Columbia River. Water users in the Pacific Northwest are sure to agree, and should seek to focus future CRT discussions on making the equally important purposes of flood control, hydropower, ecosystem-based function and water supply compatible.

For more information about the Columbia River Treaty, please contact Douglas MacDougal or any member of Marten Law’s Water Resources practice group.

[1] Bonneville Power Administration, et al., The Columbia River System Inside Story, 4 (2001), available at https://www.bpa.gov/power/pg/columbia_river_inside_story.pdf.

[2] Id.

[3] Id.

[4] U.S. Army Corps of Engineers and Bonneville Power Administration, The Columbia River Treaty; It’s Purpose and Future, 1 (2013), available at http://www.crt2014-2024review.gov/Files/Columbia%20River%20Treaty%20Review%20-%20Purpose%20and%20Future%20Fact%20Sheet-FOR%20PRINT.PDF.

[5] Treaty Between Canada and the United States of America Relating to Cooperative Development of the Water Resources of The Columbia River Basin, U.S.-Can., art. II ¶ 1, Jan 17, 1961, 15 U.S.T. 1555 (entered into force Sept. 16, 1964) (hereinafter CRT).

[6] Id. at art. IV. Relatedly, the CRT also allowed the United States to build Libby Dam on the Kootenai River, which would flood land extending into Canada. Id. at art. XII.

[7] Id. at art. V-VII.

[8]See U.S. Army Corps of Engineers and Bonneville Power Administration, Columbia River Treaty: History and 2014/2024 Review, 4 (2014), available at http://www.crt2014-2024review.gov/Files/Columbia%20River%20Treaty%20Review%20_revisedJune2014.pdf.

[9] See CRT, supra, at annex A ¶ 9, annex B ¶¶ 5-6.

[10] Id. at art. XIX ¶ 2.

[11] Id. at art. IV ¶ 2.

[12] Id. at art. IV ¶ 3.

[13] See U.S. Army Corps of Engineers and Bonneville Power Administration, Columbia River Treaty 2014/2024 Review: Recent Study Results, 3 (2012), available athttp://www.bpa.gov/news/pubs/FactSheets/fs-201206-Columbia-River-Treaty-Review-Recent-Study-Results.pdf. (hereinafter Recent Study Results). See also Protocol Between the Governments of Canada and the United States Regarding the Columbia River Treaty, U.S.-Can., art. I, Jan. 22, 1964, 15 U.S.T. 1555 (hereinafter CRT Protocol).

[14] CRT, supra, at art. I ¶ 1(e).

[15] Id; id.at art. XIII ¶ 1.

[16] Bonneville Power Administration, et al., The Columbia River System Inside Story, supra, at 53-54.

[17] Id. at 7.

[18] Conversation with Racquel Rancier, Senior Policy Coordinator, Oregon Water Resources Department (Sept. 19, 2014).

[19] Id.

[20] Washington Department of Ecology, Columbia River Facts and Maps, http://www.ecy.wa.gov/programs/wr/cwp/cwpfactmap.html (last visited Oct. 20, 2014).

[21] See Northwest Power and Conservation Council, Endangered Species Act and Columbia River Salmon and Steelhead (Nov. 22, 2011), available at https://www.nwcouncil.org/history/EndangeredSpeciesAct/ (last visited Oct. 20, 2014).

[22] See Northwest Power Planning Council, Columbia River Basin Fish and Wildlife Program Overview, 7 (1994).

[23] OAR 690-033-0120(1).

[24] OAR 690-033-0120(2)(a).

[25] In the Umatilla Basin, for example, the Stage Gulch, Butter Creek and Ordnance areas have been designated critical groundwater areas, and the Ella Butte area has been classified as a limited groundwater area. See Oregon Water Resources Department, Critical Ground Water Supplies in the Umatilla Basin, 2 (April 3, 2003), available at http://www.oregon.gov/owrd/gw/docs/umatillagwwkshprptapril2003.pdf. The effect of these classifications has been to “severely limit future ground water development and significantly reduce ground water use in much of the [800 square mile] area. . . . Within these areas, new permits to appropriate ground water are not issued.” Id. Even with these measures in place, “[g]round water overdraft continues to be a significant issue in the Umatilla Basin.” Id. at 3.

[26] See OAR 690-033-0120, et seq.

[27] U.S. Army Corps of Engineers and Bonneville Power Administration, Columbia River Treaty: History and 2014/2024 Review, supra, at 8.

[28] U.S. Army Corps of Engineers and Bonneville Power Administration, U.S. Entity, http://www.crt2014-2024review.gov/UsEntity.aspx (last visited Oct. 20, 2014).

[29] U.S. Army Corps of Engineers and Bonneville Power Administration, U.S. Entity Regional Recommendation for the Future of the Columbia River Treaty after 2024, 2 (Dec. 13, 2013), available at http://www.crt2014-2024review.gov/Files/Regional%20Recommendation%20Final,%2013%20DEC%202013.pdf (hereinafter Recommendation).

[30] See id.

[31] Id.at 3.

[32] Id. at 4-6.

[33] Id. at 6-7.

[34] Id.

[35] CRT, supra, at art. IV ¶ 2.

[36] Id. at art IV.3; CRT Protocol, supra, at art. I.

[37] Canada has taken the position that “effective use . . . is not limited by licensing and other project purposes such as power, fish, irrigation, or recreation,” but instead “requires the use of storage at any U.S. project which can reduce flows at the Dalles, regardless of its designated use or licensing or the economic cost of using the storage” and includes “both Federal and non-Federal projects.” See BC Hydro and Power Authority, Canadian Entity’s Preliminary View of Columbia River Treaty Post-2024 Called Upon Procedures, 2-3 (Feb 14, 2013), available at http://blog.gov.bc.ca/columbiarivertreaty/files/2012/07/130214-CanadianEntity_View_CRT_Post-2024_CU-FINAL4.pdf. The Unites States, by contrast, believes “effective use” applies only to “the eight U.S. reservoirs authorized for system flood control.” Recommendation, supra, at 5.

[38] See U.S. Army Corps of Engineers and Bonneville Power Administration, Recent Study Results, supra, at 3.

[39] Recommendation, supra, at 2.

[40] Id. at 6.

[41] Id.

[42] Id..

[43] Conversation with Racquel Rancier, supra.

[44] Recommendation, supra, at 2.

[45] Id.

[46] Id. at 8.

 

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