A River Runs Through It: the Future of the Columbia River Treaty, Water Rights, Development, and Climate Change

• Citation: Vol. 29 No. 4
• Publication year: 2013

A River Runs Through It: The Future of the Columbia River Treaty, Water Rights, Development, and Climate Change

Scott McKenzie

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A RIVER RUNS THROUGH IT: THE FUTURE OF THE COLUMBIA RIVER TREATY, WATER RIGHTS, DEVELOPMENT, AND CLIMATE CHANGE

Scott McKenzie

Table of Contents

Introduction.................................................................................922

I. Physical And Political History Of The Columbia River Basin And Treaty..................................................................923

A. Early History Of The River And Basin................................924
B. The Columbia River Treaty: Creation, Management, And Impacts...............................................................................928

II. Governance Issues: Theoretical And Practical...............932

A. Western Water Law And Development................................933
B. Competing Uses, Conflicted Jurisdictions...........................936

1. Anadromous Fish and the Aquatic Environment...........936
2. Agricultural Irrigation and Drinking Water..................941

C. Climate Change And The Columbia River Basin................943
D. The Evolution Of International Law....................................945

1. Equitable Apportionment, No Significant Harm and Timely Notification.......................................................946
2. Basin-Wide Management...............................................948

III. The Future Of The Columbia River Treaty........................950

A. A Transboundary Water Management Organization For The Columbia.....................................................................951
B. The TWMO Uses Public And Scientific Input To Guide Its Management..................................................................954

Conclusion....................................................................................957

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Introduction

The Columbia River Treaty (Treaty) has served successfully as an instrument for flood control and hydropower in the Columbia River Basin (Basin) since 1961.¹ Today, different uses such as restoring fish populations, agricultural irrigation, and providing drinking water demand a share of the Basin's shrinking water supply.² As early as 2014, negotiations for the next Treaty can begin.³ The United States and Canada will need to update the instrument and transition from a focus on disaster mitigation and electrical production to a flexible basin-wide, transboundary water-management organization that can dynamically balance new goals for the use of the Basin's water.⁴

These changes will challenge the administration of the Columbia River (River) to renew its openness to input from stakeholders in the jurisdictions that are tied together in the common course in the Basin. Proposed changes to the Treaty will attempt to harmonize fishermen, farmers, and consumers of drinking water and electricity by bringing federal and state law into consensus with international water law.⁵

The first section of this paper reviews the political, economic, and environmental development of the Basin and Treaty.⁶ The second section looks at water governance in the Western United States and under international law.⁷ The third section concludes that instead of adhering to the rigid policies in the original Treaty, the United States and Canada would be better served by creating a transboundary water-management organization that will manage the Basin as a single unit and rely on input from the public and the scientific community to allocate water.⁸ These changes will put the Treaty in

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line with trends in international water law and make the Treaty flexible enough to adapt to newer uses that have become increasingly important since its inception.

I. Physical And Political History Of The Columbia River Basin And Treaty

The River originates at Columbia Lake in British Columbia, Canada, and flows for 480 miles before crossing the international border and entering Washington State.⁹ It joins with its largest tributary, the Snake River, and empties into the Pacific Ocean after passing through Oregon.¹⁰ The Basin is one of the largest basins in North America.¹¹ The Basin encompasses 259,000 square miles and is 730 miles at its widest point.¹² It is about 85% in the United States and 15% in Canada and covers parts of seven American states and one Canadian province.¹³

The River's water level varies tremendously along the journey and during different seasons. At the international boundary line, water measurements have ranged from 680,000 cubic feet per second (cfs) to 12,900 cfs.¹⁴ This fluctuation has a number of causes, including seasonal snowmelt and the differential topography between

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mountains, plains, and forests.¹⁵ For example, there is far less precipitation in the rain shadow of the Cascade Mountains than along the Pacific Coast. Unfortunately, in its natural state, the River's mercurial flow causes significant flooding and difficulty maximizing the tremendous hydropower potential.¹⁶

A. Early History Of The River And Basin

The modern period of development in the Basin is less than 250 years old.¹⁷ In this short time, there have been a surprising number of treaties focused on state ownership of the area.¹⁸ An early British

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explorer working with a fur trading company was the first to map the Basin region.¹⁹ His efforts gave Great Britain (and its colony at the time, Canada) an edge over the United States during negotiations for the borderline, which has now become part of the world's longest undefended international border.²⁰

In the nineteenth century, the discovery of gold in the Rocky Mountains encouraged European settlers to develop the interior of the Basin.²¹ By 1866, the commercial fishing and canning industry had become prominent in the region and employed a signification portion of the population.²² This was soon followed in 1896 by the first major physical development of the River.²³ The U.S. Army Corps of Engineers built locks—a series of destructive rapids—in Oregon, around the Cascades, to improve navigation.²⁴ The locks dramatically increased commercial transportation and development along this portion of the river.²⁵

America and Canada realized that the water along their border had the potential to create troubling legal and political conflicts. To proactively prevent disagreements, the countries signed the Boundary

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Waters Treaty of 1909 (Boundary Treaty) to allocate "rights, obligations, or interests of either in relation to the other or to the inhabitants of the other, along their common frontier, and to make provision for the adjustment and settlement of all such questions as may hereafter arise . . . ,"²⁶

The Boundary Treaty established basic principles for how the two countries would share management of their water resources and has gradually become part of the corpus of international water law.²⁷ The Boundary Treaty's principles include "mutual obligation to protect shared natural resources, institutional governance independent from national self-interest, and dispute resolution through investigation and information exchange . . . ,"²⁸ Because it contains a prohibition on transboundary water pollution, some international legal experts refer to the Boundary Treaty as the first environmental treaty.²⁹

The Boundary Treaty did more than outline legal principles: the document also created an institution to facilitate the ongoing management of transboundary waters.³⁰ The International Joint Commission (IJC) was created to monitor and administer these resources.³¹ Additionally, through the "reference" function, the IJC could also answer questions from the United States or Canada regarding proposed uses or concerns—much like a nonbinding advisory opinion from the International Court of Justice.³² The IJC

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has six guiding principles: "consultation and consensus building; providing a forum for public participation; engagement of local governments; joint fact-finding; objectivity and independence; and flexibility."³³ The decisions and recommendations are made directly to the federal governments of each country and are available to the public.³⁴

The IJC helps to maintain positive diplomatic relations between the United States and Canada by functioning as an apolitical intermediary over contentious transboundary water issues.³⁵ The majority of the IJC's decisions have been surprisingly amicable: an overwhelming number of decisions were unanimously made and adopted by the United States and Canada.³⁶

The first part of the twentieth century saw the United States and Canada continue to develop their water resources separately, despite the cooperation promoted by the IJC. During this period, the United States used its water resources more extensively than Canada.³⁷ The United States mainly focused on constructing dams to generate hydropower and aid navigation.³⁸ However, these dams were not designed for flood control, because engineers recognized that Canada had the best locations for this purpose.³⁹

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B. The Columbia River Treaty: Creation, Management, And Impacts

In 1944, the United States and Canada asked the IJC to study potential improvements to the Columbia River.⁴⁰ The IJC created the International Columbia River Engineering Board (ICREB) to explore these development options.⁴¹ However, some stakeholders were insufficiently motivated to work together and slowed a final report and further action.⁴²

In 1948, a powerful flood struck the region and caused massive destruction stretching from Trail, British Columbia to Vanport, Oregon.⁴³ This destruction, particularly in Vanport, spurred the ICREB to submit three plans for development of the Columbia River in January 1959.⁴⁴ These documents were technical in nature and did not lay out step-by-step goals for their implementation or provide solutions for the complex legal issues created by bilateral development.⁴⁵

The ICREB's plans suggested...