Resilience and law as a theoretical backdrop for natural resource management: flood management in the Columbia River Basin.

• Author: Cosens, Barbara

The 1964 Columbia River Treaty entered by the United States and Canada for mutual benefits in flood control and hydropower generation is under review in anticipation of expiration of certain flood control provisions in 2024. This Article asserts that nonstructural measures should be the primary focus of new expenditure on flood risk management in the Columbia River Basin over the next sixty-year period of treaty implementation to align flood risk management with management for ecosystem resilience. Resilience is the measure of the capacity of a system to maintain important functions, structures, identity, and feedback through adaptation in the face era disturbance. Water basin governance can enhance or detract from ecosystem resilience, thus affecting the resilience of the combined social-ecological system. Floodplains provide important ecosystem function not only as natural storage in flood risk management, but also to aquatic ecosystem resilience in general and salmonid habitat in particular. From the perspective of the social system, reliance on multiple geographically widespread locations for natural storage reduces the risk of crisis in the face of collapse era single flood-control structure. These concepts have broad applicability to any major river basin with high hydrologic variability, and the Columbia River Basin faces a unique opportunity to employ them. Columbia River Treaty review combined with a public desire for improved ecosystem function presents an opportunity to enhance ecosystem resilience outside the emotional crisis management that ensues following a flood. Phased movement from sole reliance on centralized storage-based flood management by incremental addition of more diffuse nonstructural measures will enhance the social-ecological resilience of the Columbia River Basin.

1. INTRODUCTION II. ECOSYSTEM RESILIENCE III. THE VALUE OF FLOODPLAINS A. Floodplains and Water Quality B. Floodplains and Salmon Habitat C. Flood Risk Management and Identification of the Impediments to Multiple Diffuse Sources of Flood Storage IV. FLOOD RISK MANAGEMENT IN THE CONTEXT OF THE COLUMBIA RIVER A. The 1964 Columbia River Treaty B. 2014/2024 Columbia River Treaty Review C. Public Input to the Treaty Review D. Addressing Impediments to Diffuse Flood Risk Management V. CONCLUSION I. INTRODUCTION

   The setting: A community of temporary public housing units built for shipyard workers then occupied by returning low-income veterans following World War II. Located on the floodplain of a major river, the housing had been necessary due both to the large influx of workers needed for the war effort and to the fact that the larger city nearby did not welcome the African American workers among the newcomers. (1) In fact, the first constitution of the state in which the community was located had prohibited African Americans from entering its borders. (2)

   The crisis: On May 30, 1948, the river was flowing at a level reported to be fifteen feet above the community when the dike separating the river from its floodplain broke. (3) Fifteen people lost their lives. (4) Twenty-five percent of those left homeless were African American. (5) A residue of oil from the small refinery located in the floodplain nearby covered houses when the water receded. (6)

   The location: Vanport, Oregon, a city destroyed in the 1948 Columbia River flood and never rebuilt. (7)

   The response: Dams were considered the key to taming the Columbia River, but the best remaining storage sites were located in Canada while the major flood control benefits would be downstream in the United States. (8) Collaboration would be needed.

   The 1948 flood is considered a major factor in moving forward negotiations between the United States and Canada concerning Columbia River storage, although studies had already been underway. (9) The Columbia River Treaty, completed and approved in 1964, provided for the development of three dams on the river in Canada, that, combined with several new dams on tributaries in the United States, would increase storage capacity on the river from 6% to 40% of its average annual flow. (10) The United States paid approximately $65 million to Canada for sixty years of dam operation to prevent flooding. (11) No major flood damage has occurred

   on the river mainstem since, and operation of United States Army Corps of Engineers (Corps) dams and other federal dams is thought to have prevented $3.6 billion in damage on both the mainstem and tributaries in the United States during the major high flow events in late 1995 and early 1996. (12)

   In the wake of the Vanport flood, some houses were restored, but the area directly in the floodplain was converted to a park, still protected by a levee. (13) Although some homeless flood victims were taken in by Portland residents, it would be over a decade before the civil rights movements would bring such compassionate treatment to African Americans in the city. (14) Nevertheless, no thought appears to have been given to moving development out of the floodplain as an alternative to stopping floods. More recently, in the nation's response to Hurricane Katrina, the emotional drive to rebuild New Orleans overwhelmingly prevailed over the rational plea to reconnect the river to the floodplain. (15)

   One aspect of resilience theory pertaining to the adaptive capacity of ecosystems is that crisis caused by a perturbation presents opportunity to innovate and adapt. (16) Yet as the experience with Hurricane Katrina illustrates, it is also a time when humans are most likely to dig in and seek the comfort of the past. Thus opportunities to alter the approach to floodplain management must be sought during calmer times.

   Review of the 1964 Columbia River Treaty provides that opportunity for the residents of the Columbia River Basin. In 2024 the provisions of the 1964 Treaty providing what is referred to as "assured flood control" expire. (17) The review process currently underway provides an opportunity to consider the standard approach to flood control outside of a crisis in which emotions run high and the sentiment to rebuild is impossible to ignore. (18) Interview data from the basin indicates interest in improvements in ecosystem management while retaining low flood risk and strong hydropower revenues. (19) This Article asserts that nonstructural measures should be the primary focus of new expenditure on flood risk management in the Columbia River Basin over the next sixty-year period of treaty implementation to align flood risk management with management for ecosystem resilience. Arriving at this conclusion requires first: an understanding of ecosystem resilience; second: an understanding of the value of floodplains not only as a factor in flood risk management, but also as important to aquatic ecosystem resilience in general and salmonid habitat in particular; third: an understanding of the application to the Columbia River Basin, including the treaty review process, the public desire for improved ecosystem function, and the issues associated with moving from sole reliance on centralized storage-based flood management to the addition of more diffuse nonstructural measures. (20)

2. ECOSYSTEM RESILIENCE

   The concept of resilience was initially articulated in the study of ecological systems in the work of C.S. Holling in 1973. (21) As applied to ecological systems, "[r]esilience is the capacity of a system to absorb disturbance and reorganize while undergoing change so as to still retain essentially the same function, structure, identity, and feedbacks." (22) When applied to ecological systems without a human component, resilience theory focuses on both the capacity of the system to return to its prior level of self-organization following a disturbance, (23) and the degree to which that capacity is influenced by or sensitive to changes at smaller and larger scales. (24) Social-ecological interaction can serve to enhance or detract from ecosystem resilience. "Adaptability is the capacity of actors in a system to influence [ecological] resilience." (25) Resilience can be enhanced both from the natural adaptive capabilities of the ecological system and from the ability of the social system to respond to an ecological problem by seeking to restore the ecosystem or aid in its adaptation. (26) Natural resource management for optimization of ecosystem services with immediate commodity value, such as energy, timber, or large game, does not lead to resilience or sustainability of an ecosystem. The failure of management through "optimization" to retain the full range of ecosystem services is a key message of scholars working on the concept of resilience. (27) Thus, Walker and Salt assert:

   [I]f there is one lesson to be taken from this book it is this: optimization (in the sense of maximizing efficiency through tight control) is a large part of the problem, not the solution.... When we aim to increase the efficiency of returns from some part of the system by trying to tightly control it, we usually do so at the cost of the system's resilience. Other parts of the system begin to change in response to this new state of affairs--a part of the system, now constant, that used to vary in concert with others. A system with little resilience is vulnerable to being shifted over a threshold into a new regime of function and structure. And, as we've seen, this new regime is frequently one that doesn't provide us with the goods and services we want. And, very importantly, it is not a space from which we can easily return. (28) The complexity of feedbacks both between and within the social and ecological systems has led to the recognition that there is no single panacea that will solve the question of how to achieve sustainable social-ecological systems. (29) Instead, actions must be tailored to the specific social-ecological system with careful attention to the interactions and feedbacks within them and cross-scale interactions...