Changing the river's course: western water policy reform.

• Author: Getches, David H.
• Position: Symposium on Northwest Water Law

Water policy has left an indelible mark on America's western landscape. During the settlement and development of the West, a set of water policies evolved to create institutions and enable construction of facilities that allocate, store, distribute, and manage water. The most stunning tangible manifestation of those policies is the built environment. Though less visible, the underlying legal and institutional framework also stands firm with its foundations deeply set. Either the built environment or the laws and institutions would be extremely difficult to remove or fundamentally change, but each must be reformed and operated differently to respond to the changing nature of the West. There is no better example of the impacts of water policy, and no clearer illustration of the needs and possibilities for reform, than the Columbia River.

The Columbia is one of the world's great rivers. It drains an area the size of France and has more than twice the flow of the Nile.(1) Explorers Meriwether Lewis and William Clark wrote in wonderment about the hordes of fish upon their first view of the upper reaches of the Columbia.(2) In 1805, they traveled down the Columbia to the ocean without a single obstruction.(3) The team only had to portage around Celilo Falls, the great narrows where the region's tribes speared migrating fish and sustained a satisfying life and rich culture.(4)

The Columbia: A Monument to Western Water Policy

Today, the Columbia River has the distinction of being the most developed river in the world. Only one fifty-mile stretch of its twelve hundred miles remains "undeveloped"--less than five percent of its length from the Bonneville Dam to the Canadian border.(5) Long steps of still water lie end to end. There are seventy-five major dams in the Columbia River system, including fourteen constructed in the mainstem of that mighty river.(6) The great hydro-electric dams of the Columbia enslaved the river for the sake of aluminum plants and hair dryers; millions of people now depend on the system for their electric power.(7) Each year, irrigators divert from the Columbia an amount of water greater than twice the entire annual flow of the Colorado River(8) turning deserts upstream at the base of the Rockies into gardens. The river also has been pressed into service to carry away wastes--sewage, toxics, salt, and silt.(9)

As throughout the West, the laws and water projects on the Columbia have spurred progress. For example, water project construction created jobs, and low power rates enhanced business expansion.(10) Also, greater crop yields through better irrigation enriched communities.(11) A Bonneville Power Administration publication a few years ago bragged that

[i]n little more than one generation Man has harnessed the tremendous water

power of the Columbia Basin . . . . [H]e has tamed floods, improved

navigation, and turned deserts into rich farmland . . . . [P]roduction of

low-cost electricity has been a major factor in the Pacific Northwest

transition from a regional economy based on agriculture and lumber to a more

balanced, widely diversified economic and social structure.(12)

This progress created costs and impacts that were largely ignored at the time the water laws were written and projects planned. The inexpensive electric power produced by the Columbia River system proved to be not so cheap after all. Although the price was low, the costs were high. Power only seemed cheap because consumers did not have to consider the inherent value of the salmon and the tribal societies that depended upon them. Consumers also could ignore the value of ecosystems, free-flowing rivers, and lost gene pools.

In recent years, billions of dollars have been spent and committed to rescuing the Pacific salmon.(13) Desperate efforts have included barging and trucking migrating juvenile fish around the dams, building fish ladders and elevators, and replacing waning natural fish populations with hatcherybred substitutes.(14) Meanwhile, plans are being drawn to sacrifice water, stored above dams for lucrative power generation and irrigation, by releasing it to restore some semblance of the river's natural flows during the times of the year when fish would benefit most.(15)

The most notorious tragedy of development on the Columbia is that three-quarters of the historical salmon population no longer can survive in the river.(16) Fish used to travel as many as nine hundred miles up the Columbia and Snake River system to reach their spawning grounds.(17) While much of their spawning habitat far upstream is in good condition, with some of it in wilderness areas or wild and scenic rivers, salmon can no longer get to these waters. Today, one or two surviving salmon, the last vestiges of their race, make news when they succeed in their struggle back to Redfish Lake in Idaho.(18)

As the Ninth Circuit said last year, "it is generally accepted that the Basin's hydropower system is 'a major factor in the decline of some salmon and steelhead runs to a point of near extinction.'"(19) However, big dams are not the sole reason that the salmon cannot survive. Fish habitat and migration are also threatened by small dams, stock-watering ponds, miners' tailing ponds, and irrigation diversion structures that glutted headwater streams and flooded spawning beds.(20)

With the demise of salmon populations came the demise of a lucrative and active commercial fishing industry that depended on the Columbia River fisheries.(21) The loss of fish-related jobs and businesses, often in families for generations, forced dislocations and suffering upon many communities. Perhaps most striking was the impact on traditional tribal societies. The salmon are the "buffalo" of the Northwest Indians.(22) Tribal society was tied to subsistence, commercial, and spiritual relationships with salmon, similar to the relationships that existed between the buffalo and the Plains Indians.(23) However, there are differences. The buffalo had virtually disappeared by 1883;(24) it has taken an additional century for salmon to be brought to the brink of extinction. Destruction of the buffalo was a purposeful enterprise for non-Indian society; destruction of the salmon was less purposeful, but it seems destined to become as severe as the near-extinction of the buffalo. The consequences for the tribes in both cases go well beyond the economic effects, eroding the very base of culture and community.(25)

The system of hydropower dams that was heralded as a great economic boon to the region is viewed these days with colder, more discerning eyes. Similarly, the big irrigation diversions and uses of the river, like logging and manufacturing, brought benefits to the area, but they can no longer be considered apart from their negative effects on the river's health. Clearly, the elaborate hydropower system on the Columbia was vastly over-built. It will never again be operated at its full, power-generating capacity because of the incredible destructive potential that the system holds. This failure has resulted in the current situation in which few people are seriously considering the eleven new hydro dams that have been proposed for the Snake River System.(26)

Water law and water policy are ultimately to blame for permitting and even encouraging what has happened to the Columbia system. Yet, I believe that the trend can be reversed on the Columbia and other western rivers by redirecting the traditional instruments of water law and policy--beneficial use, water projects, and watershed management--to serve modern values and fit modern conditions.

Fundamental Principles of Water Law: Rewarding Individuals Whose Efforts Serve the Public

Many western state statutes declare that "[b]eneficial use shall be the basis, the measure and the limit" of private rights in water.(27) Among people who compete to put water to a beneficial use, the earliest users have the best rights.(28) These simple rules sum up western water law, but their application has varied with changing conditions in the West.

What constitutes a beneficial use necessarily evolves over time with the needs and values of society. In the early days, the West was undeveloped, and water was relatively copious, though not evenly distributed. Water could be distributed in the best interests of society by allowing it to be committed to categories of use, like mining or agriculture, that were generally considered beneficial. Very early, it became necessary for the courts to compare uses and means of diversion to determine "reasonableness" and to weigh their relative efficiencies in accomplishing beneficial purposes.

The first cases that arose dealt with the prevention of "waste." As one early case said,

[i]t is elementary that the waters of the public streams of this state

belong to the people, and that appropriators acquire only a right of use.

It is also settled law that an appropriator is limited in his use of water to

his actual needs. He must not waste it. . . .(29)

A recent case has held that "[t]he owner of a water right has no right as against a junior appropriator to waste water, i. e., to divert more than can be used beneficially."(30) Therefore, beneficial use is a criterion that limits the amounts and uses of private water rights.

In 1993, the Washington Supreme Court was confronted with an appeal by Clarence and Peggy Grimes, who contested a referee's ruling in an adjudication that curtailed their right under Washington law to divert 3 cubic feet per second (cfs) based on uses going back to 1906 to only 1.5 cfs and limited their 1520 acre-feet storage right to 920 acre-feet.(31) The court upheld the reductions, stating that "[t]he key to determining the extent of plaintiffs' vested water rights is the concept of 'beneficial use'. . . . An appropriated water right is established and maintained by the purposeful application of a given quantity of water to a beneficial use upon the land."(32) However, the...