Managing the Columbia River Instream Flows, Water Withdrawals, and Salmon Survival (2004) / Chapter Skim
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5 Water Laws and Institutions
5 Water Laws and Institutions
Pages 107-145
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From page 107... ...
. The key themes of this chapter are the prospects of additional diversions upstream of the Columbia middle reach in Washington and the challenges that additional withdrawals will pose for the existing legal and institutional framework in the state and across the river basin.
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From page 108... ...
main tain and, as needed, improve safe passage of salmon to and from their natal streams, and (c) maintain adequate water quality and quantity."1 Significance for the Columbia River middle reach: The Pa cific Salmon Treaty, with its focus on salmon harvest limits, does not impose any direct regulation on water management in the river's middle reach.
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From page 109... ...
For Canada, under a separate British Columbia-Canada agreement, British Columbia Hydro is designated as the Cana dian entity responsible for executing Canadian obligations under the treaty, including construction of the three Canadian dams. The treaty has several important water rights features.
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From page 110... ...
The water transfer between the Kootenay River (which ultimately flows into the Columbia) into the headwaters of the Columbia generally has limited hydrological implications for the Columbia River middle reach.
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From page 111... ...
Significance for the Columbia River middle reach: Current population growth rates in British Columbia suggest that in creased Columbia diversions are likely, which will reduce down stream flows. Additionally, Canada likely has an unquantified but, for purposes of prior appropriation in Washington, a senior claim based on its equitable interest in the river.
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From page 112... ...
Columbia River Compact Although the quest to establish a basinwide water quantifica tion compact was unsuccessful, a compact was reached concern ing commercial and recreational fisheries. The Columbia River Compact provides authority to adopt seasons and rules for Co lumbia River commercial fisheries.
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From page 113... ...
Significance for the Columbia River middle reach: The compact is designed to regulate commercial fishing, but the lan guage concerning laws or regulations "necessary for regulating, protecting or preserving fish" has the judicially untested poten tial of requiring greater collaboration between Washington and Oregon on anadromous fish issues. Water rights permitting de cisions, unless they require a new statute or rule, do not appear to be affected by this treaty.
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From page 114... ...
Information is provided from a variety of stakeholder and community sources through public hearings, outreach, and public advisory groups. In 2000 the Northwest Power Planning Council established a geographically based plan for implementation.
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From page 115... ...
Since congressional approval of this initial compact, over 20 other water compacts have been negotiated throughout the United States. Since the 1980s, several states and tribes have negotiated congressionally approved compacts or other agreements determining tribal reserved water rights.
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From page 116... ...
The compact's most distinctive feature is its requirement that the commission is charged to develop and implement a comprehensive basin plan. The compact also gives the commission licensing authority by providing that "no project having a substantial effect on the water resources of the basin shall hereafter be undertaken unless it shall have been first sub mitted to and approved by the Commission." The commission must approve the proposed project if it "would not substantially impair or conflict with the comprehensive plan." The Delaware River Basin Compact is similar to the 1980 Pacific Northwest Electric Power Planning and Conservation Act in that it also cre ated a four-state commission, which also addressed multiple re sources and required the development of a regional energy plan (which is presumptively binding on federal agencies)
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From page 117... ...
371, 1905) , as it serves as the common spring for the law of Indian fisheries and the reserved water rights doctrine (Box 5-1 lists the Columbia River basin tribes)
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From page 118... ...
-- 2,174 enrolled members; 180,441-acre reservation; rights based on 1855 treaty. Confederated Tribes of the Warm Springs Indian Reservation (Oregon)
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From page 119... ...
Quantification can be by litigation, compacts or settlements, or congressional legislation. All tribes with trust status reservations within the Columbia River basin and its tributaries potentially have treaty-based or reserved water rights claims.
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From page 120... ...
Supreme Court in Puyallup II [Department of Game v. Puyallup Tribe, 414 U.S.
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From page 121... ...
. Although the district court ordered the state fisheries department to adopt regulations protecting tribal fishing rights, a state court action re sulted in the Washington Supreme Court holding that state agen cies could not comply with the federal court injunction.
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From page 122... ...
Water Rights of Indian Reservations As previously discussed, many of the Stephens treaties re served tribal rights to fish on the reservations and at off reserva tion "usual and accustomed" sites in their treaties -- the provision interpreted in the Puyallup and Boldt litigation. The total land represented by these reservations exceeds 7,000,000 acres (or roughly 11,000 square miles, about the size of the combined area of Massachusetts and Connecticut)
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From page 123... ...
Water rights established on the Yakima River affect water availability down stream on the Columbia River mainstem. The Yakima River has been the subject of the ongoing Yakima River adjudication, originally filed by the State of Washington in 1977.
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From page 124... ...
Although the Colville Tribes benefit from determinations made in the Boldt fishing litigation, any other reserved water rights claims made by the tribes have not been adjudicated or settled. The tribes have ex pressed their concern over sedimentation in Lake Roosevelt and the impact this has on tribal water use (Confederated Tribes of the Colville Reservation, 2000)
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From page 125... ...
The parties agreed that the amount of water re sources used, consumed, and reserved as of September 26, 1996, was sufficient to satisfy their present and future water needs without subjecting other water users to a call by the tribes. The state subordinated its own instream flow right on the Deschutes River to the priorities of the tribal water rights.
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From page 126... ...
Significance for the Columbia River middle reach: The Flathead tribes have an ambitious economic development pro gram, and their reservation is in one of the fastest-growing areas of Montana. Years, if not decades, will be required before exist ing water rights are clarified.
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From page 127... ...
. The legal basis for the tribe's claim is its 1855 treaty,6 in which the tribe reserved the exclusive right to fish all streams running through or bordering the reservation and a nonexclusive right to fish in "all usual and accustomed places." In 1998 non-Indian water users filed a motion for summary judgment in the Snake River adjudication challenging the tribe's off-reservation instream flow water rights claims.
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From page 128... ...
In late 1990 this agreement was ratified through congressional enactment [Fort Hall Indian Water Rights Act of 1990, P.L.
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From page 129... ...
Flows necessary for navigation on the mainstem of the Columbia and Lower Snake rivers may thus be the most legally secure water rights in the system.
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From page 130... ...
It also supports healthy runs of naturally-spawning sturgeon and other highly-valued fish spe cies."7 The proclamation specifically addresses water rights in the Columbia. It "reserves in the portion of the Columbia River within the boundaries of the monument, subject to valid existing rights and as of the date of the proclamation, sufficient water to fulfill the purposes for which the monument is established."8 It also bans any new agricultural irrigation within the monument boundaries.9 Significance for the Columbia River middle reach: The Hanford Reach National Monument withdrawal creates a non Indian federal reserved water right with a priority date of June 9, 2000.
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From page 131... ...
Federal Regulatory Water Rights Endangered Species Act Mainstem water uses can also be limited by federal regula tory authority, sometimes referred to as "federal regulatory water rights." Because of the Columbia River's anadromous fishes, both the U.S. Fish and Wildlife Service and NOAA Fisheries have responsibilities for implementing the requirements of the Endangered Species Act in the basin.
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From page 132... ...
on the Snake River is a key Columbia River basin hydropower gen erating facility. This system is currently undergoing relicensing by the FERC, as its current license expires in 2005.
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From page 133... ...
. With passage of the Reclamation Act in 1902, western states had an incentive to systematize their water rights records so they would be more competitive in securing federally supported reclamation projects.
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From page 134... ...
. Although prior riparian rights were guaranteed in this legislation, the Washington Supreme Court later ruled that riparian rights not used by 1932 had been for feited.10 A continuing problem in many western states has been the development of an adequate procedure for recognizing water rights established prior to or otherwise outside the state permit ting system.
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From page 135... ...
The test for uses deemed in the public interest apparently considers the following: · Consistency with the Department of Ecology, other state and federal natural resources management plans, and local land use and growth management plans. Consistency with applicable coordinated water system or utility plans; · Effects on navigation, water quality, public health, and safety; · The extent to which the proposal advances water conser vation and efficient water use.
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From page 136... ...
Also, if other upstream states anticipate the creation of downstream rights, this situation may provoke the filing of water rights applications in those states. Instream Flow Protection Program Washington's instream flow program originated with legisla tion passed in 1969.11 Pursuant to this legislation, administrative rules were adopted by the Department of Ecology in 1980, and minimum instream flow values were established for the main stem Columbia River upstream of Bonneville Dam.12 The rules established minimum instantaneous flow requirements at five lo cations on the mainstem for 17 different time periods during the year.
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From page 137... ...
They are also referred to as "uninterruptible water rights." Such rights include approximately 4,530,000 acre-feet of water rights based on state law. The instream flow rules authorized the Department of Ecol ogy to approve additional mainstem diversions, but they would be junior to the instream flow rights and subject to additional conditions imposed by the administrative rules.18 For the first 14Id.
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From page 138... ...
is equal to or greater than 88,000,000 acre-feet and it is likely that minimum average weekly flows will not be met.19 These post-1980 water rights, which are junior under some circumstances to the in stream flows, are called "interruptible rights." "Interruptible rights" totaling 172,358 acre-feet have been issued (Gerry O'Keefe, Washington State Department of Ecology, personal communication, 2004)
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From page 139... ...
Water law scholars generally agree that rigorous priority administration of water rights is rarely practiced in western states. In theory, and in some highly administered basins such as those in Colorado, priority-in-time administration is a hallmark of the prior appro priation doctrine.
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From page 140... ...
The Department of Ecology previously adopted a rule requiring that the authorized quantity of any new Columbia River mainstem water rights "accurately reflect the perfected usage consistent with up-to-date water con servation practices and water delivery system efficiencies."21 The proposal would potentially increase the amount of water that could be diverted ahead of the instream flow protections. These rights would be in addition to the approximately 4,700,000 acre feet of rights to water (apparently not including tribal reserved rights)
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From page 141... ...
Significance for the Columbia River middle reach: Because Oregon initiated its permitting program in 1909 and vested an administrative agency with the major role in adjudicating pre 1909 water rights, its inventory of water rights and the associated legal entitlement is better than most other western states. Even the reserved rights of the Warm Springs Reservation have been determined (see earlier discussion)
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From page 142... ...
Although instream flow may constitute a beneficial use in Idaho, only the state Water Re sources Board may apply for and hold such a right. To address water rights not represented by licenses and permits, as well as federal reserved water rights, the Snake River Basin Adjudica tion (SRBA)
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From page 143... ...
Indeed, because of the incomplete general stream adjudication and inchoate nature of the claims associated with the Flathead Indian Reservation, wa ter uses that might occur under existing water rights based on federal and state law and under future permits are difficult to predict. This uncertainty adds to the risk of additional permitting in the Columbia River middle reach.
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From page 144... ...
As long as upstream development does not exceed Canada's ul timate entitlement and equitable state shares of interstate water, additional water use in Montana, Idaho, Oregon, and other basin states will be senior to new permits in Washington. In most cases, tribal reserved water rights will also have priority over these new state permits.
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From page 145... ...
Water Law and Institutions 145 in many parts of the country, and Chapter 7 discusses strategies for better managing risks and uncertainties.
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