"The Supreme Court of Science" speaks on water rights: the National Academy of Sciences Columbia River report and its water policy implications.

Author:Benson, Reed D.
 
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  1. INTRODUCTION II. WATER DEVELOPMENT AND MANAGEMENT ON THE COLUMBIA A. The Bygone Columbia B. The Columbia Today: Dams, Water Use, and Salmon C. Water Allocation by States Under Prior Appropriation D. Pressure for Expanded Uses (New Rights and Uninterruptible Status) III. THE NATIONAL ACADEMY OF SCIENCES STUDY A. NAS and the Committee B. The Committee's Charge: Salmon Science and Water Management Scenarios C. Review of the Science D. Findings and Recommendations 1. Six General Findings and Recommendations 2. Reaction to Ecology's Management Scenarios IV. WATER POLICY IMPLICATIONS OF THE NAS STUDY A. A Joint Forum for Columbia Basin Water Allocation B. Conservation and Markets as the First Option for Meeting New Demands C. Tougher Requirements for Obtaining New Water Use Permits D. Greater Flexibility in Water Allocation and Management V. CONCLUSION: CAN SCIENCE REALLY CHANGE WATER POLICY IN THE WEST? I. INTRODUCTION

    Like many rivers throughout the western United States, the Columbia has been dramatically altered by human activities. A series of major dams and diversions have radically changed the big river and its tributaries, such as the Snake, the Yakima, and the Deschutes, turning them into an economic engine for the Pacific Northwest. So thoroughly has it been exploited for hydropower, navigation, and irrigation that the Columbia has been described as a river that has "died and been reborn as money." (1)

    As the Columbia River system grew more industrialized, however, its legendary salmon populations declined sharply. The Columbia's salmon runs may once have numbered 16 million fish, but by the 1990s they had fallen to something like one million, and most of those fish were artificially produced in hatcheries. (2) As more Pacific salmon populations were added to the national list of threatened and endangered species, recognition grew in the Pacific Northwest that the Columbia Basin ecosystem may have been pushed too far, and that changes would be needed to restore the salmon runs. (3)

    The Columbia, however, still faces new demands for water from farmers, cities, and others who continue to regard the River as a viable source. These new demands are sizable--pending applications for new permits in Washington alone total up to 1.3 million acre-feet (4) of water. (5) These new demands could be viewed with some validity as either an incremental increase in use that is small in the context of the Columbia's annual flow, or as a new depletion that would further reduce river levels in the summertime when salmon are already stressed by low flows and high water temperatures. (6) Irrigators and other would-be water users have argued strongly for the former view, while environmental groups and other salmon advocates have forcefully advocated the latter position. (7)

    Caught in the middle is the Washington Department of Ecology (Ecology), the agency responsible for decisions regarding new permits to withdraw water from the Columbia for use in Washington. Seeking a definitive scientific answer to the dispute over the potential impacts of new water withdrawals from the Columbia, Ecology asked the National Academy of Sciences (NAS) to study the issue. (8) NAS, a nonprofit group of research scholars that is often called "The Supreme Court of Science," (9) has issued a variety of influential reports on water management and the needs of native fish species, including a much-publicized 2002 draft report that questioned the scientific basis of Klamath Basin water management. (10) Ecology's request was unusual, however, in that it came from a state agency, whereas NAS normally advises the federal government. (11)

    NAS released its report, Managing the Columbia River." Instream Flows, Water Withdrawals, and Salmon Survival (Report), on March 31, 2004. (12) The Report finds that additional water withdrawals from the Columbia would, indeed, increase risks to salmon during critical periods of relatively low flows and high water temperatures. These risks are exacerbated because the future of the Columbia River system contains so many big uncertainties--uncertainties regarding salmon survival, water supplies (both year-to-year and long-term), and water demands throughout the Columbia Basin. With its finding that new water withdrawals would increase salmon risks, the Report essentially says there is no such thing as a free drink, even from the mighty Columbia.

    The Report does not stop there, however. In response to Ecology's request for comment on various scenarios for Columbia River water management, NAS made a number of findings and recommendations regarding potential new water withdrawals from the Columbia. Briefly stated, the Report urges a new approach to water permitting decisions: review of new permit applications by a multijurisdiction Columbia Basin water forum, water markets and conservation as the first option to supply water for new uses, tougher requirements to obtain new permits, and greater flexibility in water allocation and management. (13) These recommendations may seem modest in an era when salmon recovery is a major priority of the Pacific Northwest, but they are contrary to long-standing traditions of water allocation and management in the western states. Moreover, the NAS recommendations carry major water policy implications for the Columbia Basin and beyond, because the issues and challenges facing Ecology on the Columbia are not so different from those facing water managers throughout the West.

    This Article identifies and briefly discusses the NAS Report's water policy implications. The point is not to analyze the Report and determine if its findings and recommendations are "correct," nor to provide a detailed evaluation of the Columbia River permitting controversy and the policy response to the Report. Instead, this Article focuses on the NAS recommendations regarding water allocation and management, explains how they differ from the traditional approach of western states, and discusses how water management might change if the states were to adopt these recommendations. In other words, the Article assumes the NAS recommendations constitute "good science," (14) and assesses how the policy toward new water demands might change if states in the West were to see the NAS recommendations as relevant and implement them.

    Part II of this Article provides background on the development and management of Columbia River water resources, the decline of salmon populations, and the controversy over new water withdrawals in Washington. Examining the NAS Report, Part III briefly notes the Report's scientific conclusions and restates its findings and recommendations regarding water allocation and management. Part IV identifies four major NAS recommendations that run counter to long-standing practices of the western states, and considers the water policy implications of these recommendations. Part V concludes by briefly discussing the Report's potential effects on water policy in Washington, the Columbia Basin, and the rest of the West.

  2. WATER DEVELOPMENT AND MANAGEMENT ON THE COLUMBIA

    The Washington controversy is fundamentally a dispute over the best use of the waters of the Columbia River. These waters have sustained salmon for millions of years and the human inhabitants of the Columbia Basin for hundreds of generations. In the 200 years since the Lewis and Clark expedition, however, the River and its tributaries have been dramatically altered, bringing many benefits for humans but also some serious costs--including the decimation of the once-mighty salmon runs. Water withdrawals, primarily for irrigation, are one cause of the River's altered state; while there is sharp disagreement over the impact of existing water withdrawals on Columbia River flows, irrigation is increasingly viewed as a significant part of the problem. (15) While water laws and institutions in the Pacific Northwest now take some account of the needs of salmon, water managers also face growing pressure to authorize new withdrawals that would further deplete flows in the Columbia. This section briefly addresses these background matters, providing some context for a discussion of NAS's Columbia River study.

    1. The Bygone Columbia

      In terms of flow, the Columbia is far and away the biggest river in the western United States, with an average annual discharge of 281,000 cubic feet per second (cfs). (16) By comparison, the second-biggest river on the West Coast, the Sacramento, averages 23,000 cfs. (17) The West's most storied river, the Colorado, carries less than haft the water of the Columbia's major tributary, the Snake. (18) The Columbia drains an area of 258,000 square miles, (19) including the vast majority of Idaho, Oregon, and Washington, plus sizable chunks of British Columbia, Montana, and Wyoming.

      Before it was harnessed by a number of mainstem and tributary dams, the Columbia, with highly variable flows and giant rapids, was a wild river in every sense. (20) The untamed Columbia may have been inhospitable to large-scale hydropower, irrigation, and navigation, but it provided an enormous natural bounty of salmon. The Columbia's annual salmon runs may once have been as great as 16 million fish, (21) a number that is roughly triple the current human population of the U.S. portion of the Columbia Basin. (22)

      These mighty salmon runs were the foundation of the Columbia Basin's first human society, that of the native tribes. Human residence in the Columbia Basin apparently dates back at least 12,000 years, and the tribes sustained themselves largely by catching salmon at Celilo Falls and other sites on the Columbia and the Snake. (23) As stated by the Supreme Court a century ago, for these tribes, "[t]he right to resort to the fishing places ... was ... not much less necessary than the atmosphere they breathed." (24) Nineteenth century settlers also harvested these runs extensively, and after canning techniques were refined, salmon fishing and...

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