Drafting from an overdrawn account: continuing water diversions from the mainstream Columbia and Snake Rivers.

• Author: Ellis, Joy
• Position: Symposium on Northwest Water Law

1. INTRODUCTION

   The Columbia River System is an exhausted resource. Out-of-stream consumptive uses have drained the river to a state of crisis: in 1891 and 1992, the National Marine Fisheries Service (NMFS) listed several species of Snake River salmon as endangered under the Endangered Species Act (ESA).(2) In its listing decisions, NMFS cited water withdrawals in the Columbia and Snake Rivers and inadequate state regulatory programs governing water allocations as factors contributing to species decline.(3) In 1993, as required under section 7 of the ESA,(4) NMFS consulted with the federal agencies that operate the Columbia River power system and then issued a biological opinion identifying minimum flows in the Snake and Columbia Rivers as necessary for successful downstream migration of salmon.(5) Unfortunately, in 1994, flows in the Snake and Columbia Rivers were far below the minimums specified by NMFS.(6) (Columbia River flows for the spring migration were more than ten percent below target flow levels, while Snake River flows for the summer migrations were short by more than twenty-five percent.(7) The inadequate 1994 flows attest to the exhausted state of the river system and the need for states to make instream flow protection a true priority.

   An essential first step toward protecting salmon runs is to halt new water withdrawals; since the ESA listings, Washington, Oregon, and Idaho have each enacted moratoria on the issuance of water withdrawal permits in their respective states.(8) Each state's moratorium differs from the others. The main purpose of Idaho's moratorium is to mitigate drought conditions, and thus it only incidentally helps salmon; however, the purpose of Oregon and Washington's moratoria, however, is specifically to protect salmon.(9) Oregon and Idaho's moratoria include tributaries, while Washington's moratorium does not.(10) Idaho's moratorium has a retroactive effect on water right applications already filed with the Idaho Water Resources Department (IDWR), while the other states grandfathered applications filed before their moratoria became effective.(11) Under Oregon's moratorium, the Oregon Water Resources Department (OWRD) may issue permits to new water use applicants only if the Director determines the proposed use is consistent with the Fish and Wildlife Program of the Northwest Power Planning Council (NPPC).(12) Washington and Idaho do not base their decision making on consistency with NPPC's Program.(13) Although each state's approach to water management is different, the end result of all three moratoria is the same: more flows in the mainstem Columbia and Snake Rivers, although the increase may be insufficient to protect the endangered salmon.

   An examination of recent water diversions illustrates the need for more effective instream flow protection in the mainstem Columbia River.(14) Recent efforts to manage water resources have been effective in ratcheting down diversions of much-needed mainstem river flows; water users have diverted 26.9 cfs(15) as a result of new water right permits with priority dates subsequent to the moratoria.(16) Washington has not allowed any new consumptive use appropriations from the mainstem, but its moratorium does not apply to tributaries.(17) Oregon has approved diversions totaling 3.9 cfs from the Columbia, while Idaho has allowed diversions totaling 23 cfs from the Snake River.(18) Notwithstanding the moratoria, however, state water agencies are still approving diversions of water that should be left instream to promote the salmon recovery effort.(19)

   Despite NMFS's finding that water withdrawals negatively affect salmon,(20) and despite the failure to meet flow level requirements during the spring and summer salmon migration periods of 1994,(21) the Northwest states continue to allocate a significant amount of water from the Columbia River System. As a result, the states' voluntary efforts to promote salmon recovery may be insufficient to avoid federal interference--the ESA could curtail the states' discretion over water appropriation.(22)

   This Article takes a close look at the restrictions imposed on applications for water rights in the Northwest states and the exceptions that allow new water users to divert water from the Columbia River Basin. Part II describes the historic imbalance between fish runs and water diversions that challenges effective management of the Columbia River Basin. Parts III, IV, and V examine the moratoria enacted by Washington, Oregon, and Idaho, respectively, and critique their effectiveness in augmenting flows in the mainstem Columbia. Part VI briefly explores whether the issuance of new water appropriations in the Columbia River Basin violates the ESA and, if so, the potential consequences. Part VII concludes that water agencies in the Northwest are contributing to the salmon recovery effort but should account for the maintenance of the status quo of water appropriations.

2. THE HISTORIC IMBALANCE BETWEEN FISH RUNS AND WATER DIVERSIONS

   The Columbia River System is a multiple-use resource.(23) Although many of the river's uses are complementary, certain interests conflict. Specifically, salmon runs compete with out-of-stream uses. As a result, salmon runs have declined steadily since the development of the Columbia River System.(24) Prior to development, the River supported the largest salmon populations in the world.(25) Today, however, the salmon runs are only a fraction of their historic numbers.(26) While the salmon's migratory needs have remained unchanged over time, the migration corridor has changed dramatically. Once a free-flowing river, today the Columbia River System is a series of flow-controlled reservoirs. Mainstem Columbia River reservoirs reduce the river's flow velocity. Irrigation withdrawals similarly reduce mainstem river flows. Because smolt migrate passively, they depend heavily on water currents for transportation downstream. Their timely and successful seaward migration is thus closely linked to river flows.(27) Slow fish passage through the river system increases the exposure time of out-migrating juvenile salmon to predation, higher temperatures (which in turn increase the predation rate and the susceptibility of salmon to disease), and water quality problems.(28) Higher temperatures and decreased water quality resulting from low flows also threaten the health of returning adult migrants.(29) Although reservoirs adversely affect fish flows, they are crucial to ensuring an adequate supply of water for the mid-April through late-September irrigation season in the Columbia River Basin.(30)

   Irrigation is a prime use of the Columbia River water. Irrigators divert 6 percent of the Columbia Basin river flows, irrigating approximately 7.8 million acres of land for uses ranging from agriculture to recreation sites and other nonagricultural uses.(31) Agriculturalists in arid parts of eastern Washington, northeastern Oregon, and southern Idaho depend on the water to produce alfalfa, apples, corn, grapes, peas, potatoes, wheat, and a vast assortment of other crops.(32) These growers have argued that moratoria on new water appropriations severely limit their economic growth.(33) Municipal water officials have joined the opposition to the moratoria, contending that they cap municipal growth.(34) Indisputably, the moratoria interrupt a long-standing tradition to favor development over instream resource protection.(35)

   Water resource agencies have historically managed the Columbia River in a manner that favors out-of-stream consumptive uses;(36) as a result, salmon runs have suffered.(37) Western water users divert water from streams for beneficial uses, and the principle of "first in time, first in right" governs the priority of the water right.(38) Historically, the state water agencies in the Northwest deferred to agricultural and municipal uses, freely granting out-of-stream consumptive use permits.(39) This practice has led to the overallocation of many streams and has contributed to the decline of the salmon runs.(40) Instream water rights and minimum stream flows only infiltrated the doctrine in recent decades.(41) As a result of the states' late start on instream resource protection, provisions reserving water instream for fish habitat are junior to many out-of-stream water rights that precede them chronologically and therefore merit seniority over these more recent rights.

   1. Accounting for the Historic Management Imbalance

      The Endangered Species Act (ESA)(42) salmon listing allows affected states to develop comprehensive state programs to protect flows for listed fish;(43) if the states fail to develop such a program, the National Marine Fisheries Service (NMFS) must use its authority under the Act to attempt to achieve adequate protection.(44) Even before the listing of several Columbia River salmon species, the Northwest began developing a regional salmon recovery plan at its "Salmon Summit," a conference that included federal, state, and local interests.(45) Following the Salmon Summit, the Northwest states, together with NMFS and the region's congressional delegation, called on the Northwest Power Planning Council (NPPC)(46) to expand the scope of its plan to encompass all river uses--not just power production--and devise a comprehensive salmon recovery strategy.(47) NPPC amended its Fish and Wildlife Program to make nonbinding recommendations for other river uses.(48)

      In its ensuing 1992 Strategy for Salmon,(49) a new section of the Fish and Wildlife Program, the Council recommended reducing salmon harvest,(50) reducing reservoir pool levels,(51) controlling predation,(52) improving hatchery practices,(53) and significantly increasing flow levels of the Snake and Columbia Rivers to aid salmon migration.(54) Included in the plan was a call(55) for regional agreement on future water appropriations and instream flows.(56) The Council's Strategy for Salmon called upon the...