Seven myths of Northwest water law and associated stories.

• Author: Blumm, Michael C.
• Position: Symposium on Northwest Water Law

In some respects, the Pacific Northwest as a region has been defined by what it is not: it is not as arid as the intermountain West.(1) But it is a mistake to think that water in the Northwest is not a scarce resource, subject to increasing demands for a variety of consumptive and nonconsumptive purposes. The 1990s have made evident that Northwest water supplies are insufficient to meet regional needs, as perhaps best illustrated by the listing of Snake River salmon for protection under the Endangered Species Act (ESA).(2) Thus, the myth of abundance has been only recently exposed.

In truth, a student of water law in the Northwest must confront a number of myths that inhibit a full understanding of the framework within which rights to the region's most precious natural resource are allocated. Part I of this introduction aims to expose these myths and explain the realities. Part II briefly overviews the articles constituting this symposium.

1. NORTHWEST WATER LAW MYTHS

   1. Myth No. 1: The Northwest is Humid

      It is true that the Northwest is home to the largest remaining temperate rain forest in North America, and climatic conditions here are wet enough to provide ideal conditions for the growth of Douglas fir trees.(3) But heavy moisture characterizes only the Pacific slope of the Cascade Mountains, which comprises but a small fraction of the four states of the Pacific Northwest. Roughly two-thirds of Oregon and Washington lie east of the Cascades as, of course, do all of Idaho and Montana. East of the Cascades aridity rules. While precipitation in the Olympic peninsula northwest of Seattle can average over one hundred inches a year, Seattle's average precipitation averages only about forty inches, and just one hundred miles east of Seattle, on the east side of the Cascades, annual precipitation averages less than nine inches.(4) Moreover, virtually all of the region's rainfall occurs between November and April,(5) before the summer irrigation season begins.

      During the summer, in the majority of the region lying east of the Cascades, the Northwest is arid. Because most of the people in the Northwest live along the narrow ribbon on the Pacific slope of the Cascades, the region's geography has masked this essential aridity. Those who wish to understand the reality of the critical importance of water in the Northwest must look behind the mask.

   2. Myth No. 2: Salmon Divides the Region into Lower and Upper Basin Constituencies

      The great river that drains all of the states of the Pacific Northwest, the Columbia, and its principal tributary, the Snake, unite the region as no other resource does. Over the past half-century, the region constructed (mostly with substantial federal subsidies) the largest interconnected hydroelectric system in the world.(6) Hydropower gave the Northwest the cheapest electric rates in the nation, brought electricity to rural areas east of the Cascades, and lured to the region electric-intensive industries, such as aluminum plants, that diversified the regional economy.(7) Unfortunately, the damming of the Columbia River crippled what were once the world's largest salmon runs.(8) For the past twenty years, coincident with the completion of the last mainstem federal dam, the region has been preoccupied with salmon restoration. That concern produced the innovative fish and wildlife provisions of the 1980 Northwest Power Act,(9) which in turn produced the largest biological restoration program on the planet.(10) Unfortunately, the ineffectiveness of that program prompted listing of Snake River sockeye and chinook salmon runs for ESA protection.(11) The ESA listing' led to moderate changes in Columbia River flows, increasing flows somewhat in the spring and summer when juvenile salmon migrate to the ocean.(12) Salmon advocates have protested that these flow increases are too small to restore the endangered runs.(13)

      While some debate the adequacy of salmon flows, others question the efficacy of flow increases at all. Since Idaho Governor Cecil Andrus (D) left office,(14) Idaho has resisted increased Snake River flows where those flows would be the result of storage reservoir drawdowns in Idaho.(15) Although it is plain that Idaho salmon require Idaho water,(16) Idaho officials have questioned the scientific basis of increased river flows,(17) and the state has even made water transfers more difficult where the result is to send water downstream, out-of-state.(18)

      The upshot of Idaho's reluctance to support river flows for salmon restoration has been to create the perception that there is a divide between the upper basin states and the lower basin states.(19) Such a division would, for example, produce a stalemate on the Northwest Power Planning Council, where upper and lower basin states are represented equally.(20) While there is no specific requirement that the Council increase water flows to facilitate salmon migration, there may be limits on unilateral actions inconsistent with salmon restoration that an upstream state such as Idaho can take under state law. For instance, if Idaho were to deny a water right transfer aimed at boosting Snake River salmon flows, that denial could be subject to a Commerce Clause challenge for discriminating against out-of-state users.(21)

      Such a denial would also seem to violate Idaho's affirmative conservation duty under the equitable apportionment doctrine, which the U.S. Supreme Court has ruled applies to salmon.(22) In so ruling, the Court concluded: "At the root of the [equitable apportionment] doctrine is the same principle that animates many of the Court's Commerce Clause cases: a State may not preserve solely for its own inhabitants natural resources located within its borders."(23) As a result, if Idaho were to deny a water transfer whose purpose was to improve flows in the Snake River for the benefit of salmon on the ground that it was "conserving" water for in-state use,(24) that denial could violate both the Commerce Clause and the equitable apportionment doctrine.(25) As the Court concluded, "States have an affirmative duty . . . to take reasonable steps to conserve and even to augment the natural resources within their borders for the benefit of other States."(26)

      Thus, even if the political winds seem to be blowing the upper and lower basin states apart on salmon recovery issues, the courts may insist that upper basin states not hoard water necessary for effective salmon migration. If so, it will have been the least representative branch of government that refuses to allow us to escape the reality that the salmon and their migrations are the fundamental ties that bind us together as Northwesterners.

   3. Myth No. 3: The Market Allocates Western Water Rights

      One of the myths propounded by advocates of the prior appropriation system of water rights is that it is a market-driven system.(27) According to this myth, although Western water law rewards the first diverter (who may or may not be the most efficient user) with property rights, the prior appropriation doctrine's great virtue is that it allows alienability of rights, so that water may flow to the user who values it most, measured by willingness to pay.(28) For some advocates of rules promoting efficient use of natural resources, Western water law's emphasis on private rights and market-based transfers provides a paradigmatic illustration of the operation of the Coase Theorem's contention that market transfers will produce economic efficiency.(29)

      But the reality of water allocation under the prior appropriation doctrine is that the market operates with frequency only in some states,(30) and then usually only to transfer one diversionary use to another. The "no injury" rule to third parties has worked to foreclose many transfers, as has the failure of the seller to demonstrate full use of his water right.(31) In the Snake Basin, efforts to purchase water from agricultural users to increase river flows to improve salmon migration have met with considerable local resistance.(32) This resistance is not based on market principles, such as sellers demanding a higher price to forego diversions necessary for agricultural crops. Instead, the resistance is due to local community opposition to market transfers where those transfers would take land out of agricultural production, with attendant erosion of tax base and adverse local economic effects.(33) This resistance to the potential consequences of a free market caused the 1995 Oregon House to pass a bill that, had it not been killed in the Oregon Senate, would have banned market transfers of agricultural water for the purpose of increasing instream flows.(34)

      In truth, then, the market is far from the overriding force in allocating Western water rights. Where the market conflicts with local community values, water market transactions are regularly thwarted, a reminder of the strong communal interest in Western water.(35)

   4. Myth No. 4. Appropriators Are Entitled to a Fixed Quantity of Water

      Although it is hornbook law that the measure of a water right is beneficial use without waste,(36) many diverters continue to believe that the quantity of water they may legally divert is a constitutionally protected property right.(37) This myth has been perpetuated by the courts, which have only rarely restrained historic uses by finding customary methods of diversion to be wasteful.(38) Nevertheless, prior appropriation protects only nonwasteful beneficial uses, not historic diversions.(39) As modern irrigation systems reduce evaporation and seepage losses in conveying water to crops and increase the percentage of diverted water that can be consumed by the crop, outmoded carriage and application systems can be declared wasteful, and therefore not within the diverter's water right. The concept of nonwasteful beneficial use thus has the potential to demand cessation of historic wasteful practices and adoption of modern conservation measures.(40)

      The...