lteea &cUa#t~ i
Warm ;Via/
Seminar Conducted b y
WATER RESOURCES RESEARCH .INSTITUTE
Oregon State Universit y
786 8
Fall Quarter 1979
GOVERNING BOAR D
PETER C . KLINGEMAN, Directo r
FRED J . BURGESS, Dean, School of Engineerin g
CARL H . STOLTENBERG, Dean, School of Forestry
JOHN R . DAVIS, Director, Agricultural Experiment Statio n
KEITH W . MUCKLESTON
ROBERT BESCHTA
LARRY BOERSMA
MARSHALL ENGLIS H
KENNETH CUMMIN S
R . CHARLES VARS, JR .
On June 6, 1978, President Carter announced a broad set o f
water policy initiatives to bring about "reforms" in four key areas :
federal-state cooperation, water planning processes, water conservation, and increased environmental sensitivity . Task forces are working on specific implementation efforts . A year later, in June o f
1979, the western governors met and passed several resolutions opposing some aspects of the federal policies announced thus far .
The governors criticized Carter's plans for cost-sharing by
the states in all future water developments . The federal proposal ask s
that states pick up 5% of the cost of non-revenue producing projects .
Opposition was also expressed to the Administration's proposed cuts i n
the federal snow survey program --- to be phased out by 1983 . Viewe d
with suspicion is the attempt "to impose federal controls over wate r
conservation practices" inasmuch as this is deemed "a prerogative o f
the states" . The question of federal water rights is an area in whic h
many uncertainties need to be resolved . Still undecided is the futur e
of such national organizations as the Water Resources Council .
To examine some of the factors involved, a seminar serie s
was held during Fall Quarter at Oregon State University . The weekl y
presentations were open to faculty, students of all ages, and th e
general public .
Peter C . Klingema n
Directo r
Corvallis, Orego n
January 198 0
f= unds for this publication were provided by the Office o f
Water Research and Technology, U .S . Department of the Interior, unde r
the provisions of the Water Research and Development Act of 1973 .
%e 90tateeate'
The Water Resources Research' In•St i'tu-te,, located-' o n
the Oregon State University Campus, serves the State• of Oregon .
The Institute fosters, encourages- and faci'l'i•ta-tes• water resource s
research and education involving all aspects of the quality an d
quantity of water available for- beneficial use .. The Institu=t e
administers and coordinates statewide and regional' programs of
multidisciplinary research in water and related land resources .
The Institute provides a necessary communications and coordination link between the agencies of local, state and federa l
government, as well as the private sector, and the broad researc h
community at universities in the state on matters of water-relate d
research . The Institute also administers and coordinates th e
interdisciplinary graduate education in water resources of Orego n
State University .
This seminar series is one of the activities regularl y
undertaken by the Institute to bring toge har the- research community, the practicing water resource specialists, students of al l
ages and interests, and the general public, in order to- focu s
attention upon current issues facing' our state .
efed
FEDERAL/STATE WATER POLICY ISSUE S
Thomas E . Klin e
Oregon Water ' Resources Departmen t
Salem, Oregon
1
WATER AND PUBLIC CONTRO L
James Huffma n
Northwestern School of La w
Lewis and Clark College
Portland, Oregon . :. . ., ; . . .;
3
, A, ;
POLICIES AND AQUATIC ECOSYSTEMS Lou Fred d
Oregon Department of Fish and Wildlif e
Portland, Oregon
15
WATER RESOURCES AND LAND USE PLANi'IN G
Anne Squie r
Land Conservation and Development Commissio n
Salem, Oregon
21
ENERGY AND WATER POLICY IN THE COLUMBIA RLVE R
Zane R . Harpe r
Bonneville Power Administratio n
Portland, Oregon
31
Presented October 11, 1979 by THOMAS E . KLINE, Oregon Water Resources Department ,
Salem, Oregon .
9edelai/ Stag ?Oatet Pedec~y Tweed
the
While
spectrum
subject of federal and state water policies encompasses a
of concerns on the use, development and management of water ,
there appears to be some inherent commonality between the various issues .
Water policy issues tend to be controversial, perhaps reflecting the divers e
interests of society that are directly or indirectly affected by water decisions .
Secondly, water policy issues generally tend to involve political solutions .
Finally, perspectives on the issues tend to change with time . Thus, the trus t
of the water policies of the past may be viewed by some with skepticism today .
Historically, federal water policies have tended to be project oriented, reflecting national interest in navigation, flood control and reclamation . As that interest expanded over the years, encompassing hydroelectri c
development, recreation, municipal water supplies and water quality, polic y
objectives have become less clear .
Against this background, President Carter introduced a range of wate r
policy initiatives in 1977 . The proposals addressed seven major areas : wate r
resource planning and evaluation criteria and procedures, cost sharing, institutions and institutional arrangements, conservation, water resource research ,
federal reserved rights, and water quality . Perhaps not unexpectedly, th e
initiatives prompted immediate and sharp criticism from many sectors and i n
particular, from the western states .
While, with the appointment of numerous task forces to more full y
develop the proposals the process became more obtuse, several consistent theme s
appear to be emerging . In particular, the level of federal participation i n
water development appears to be decreasing . This is reflected in proposal s
aimed at increasing user changes and requirements for state and local participation in federal water projects, and, potentially, for investigations and dat a
acquisition .
Emphasis on conservation and non-structural measures appears t o
further support a program of reduced federal funding for water development ,
1
at least in the immediate future . Collectively these measures and the othe r
proposals, if implemented, will alter the traditional federal role in wate r
resources . It is perhaps important to note that proposed policy initiate s
thus far do not appear to be tied to national energy concerns .
The apparent uncertainty over the future federal role in wate r
resources has carried over to states . In some recent instances litigatio n
has been employed to more clearly define the respective roles . On the positiv e
side, this period may provide opportunities and possibly an incentive fo r
development and implementation of local and state initiatives in water resources .
In Oregon, policies affecting water are formulated by a number o f
agencies, boards and commissions . Their respective responsibilities cove r
almost all aspects of water and its present and future use within the state .
Within Oregon, water is a seasonally and annually variable resourc e
with a disparate distribution across the state . In most areas only a smal l
percentage of the annual surface runoff is available during the summer months ,
usually associated with peak demands . The two-thirds of the state constitutin g
eastern Oregon receives only one-sixth of the total state runoff .
The challenge facing Oregon is clearly to develop policies an d
management programs that reflect the extent and availability of the resourc e
in the context of increasing demands for virtually all uses . Emerging issue s
involve coordination between land use, water quality and water quantity planning ,
increasing demands for community, municipal and agricultural supplies, renewe d
interest in hydroelectric power development, instream flows and means o f
achieving desirable objectives, the efficiency of current water use, the rol e
of the state in water resource development and an entire spectrum of concern s
on ground water resources . Perhaps on the basis of a false sense of abundance ,
little emphasis has been placed on water resources in recent years within th e
state . Factors already in place will likely force a dramatic change in tha t
outlook in the future . (This is a summary of the remarks presented . )
2
Presented October 18, 1979 by JAMES HUFFMAN, Director Natural Resources La w
Institute, The Lewis and Clark Law School, Portland, Oregon .
Warm awl Pat.& eaata~
Private
water rights in the western United States are cause for a goo d
fight . Tales of water related disputes between farmer and ranche r
are as much a part of the lore of western history as is the six-gun . Hollywoo d
has probably exaggerated the six-gun legend, but not the history of fighting word s
and conflict that were the public side of the development of the law of privat e
rights in water . Liberties may have been taken with the facts of particula r
disputes, but the importance of water to western development could not have bee n
overstated .
In 1900, even as recently as 1960, the water lawyer was an expert i n
private law . Actions in water courts were disputes between private parties .
They were traditional property law cases, distinct only in the nature of th e
property at issue and the branch of property law to which th.e lawyers and judge s
must refer . The classic cases of western water law ; cases like Irwin v . Phillips ,
Coffin v . Left Hand Ditch Co ., and Tattersfield v . Putnam ; were all dispute s
between private parties over title to water . The state's role in these case s
was as interpreter and enforcer of existing private rights . The state was no t
an independently interested party . Water would be allocated between the disputants according to the law of private rights in water . This resolutio n
would conform to and encourage reliance upon private expectations founded in th e
relevant water law .
PUBLIC POLICY CONSIDERATION S
This does not mean that the water law was devoid of any conten t
relevant to public policy . The commitment to a system of private rights i n
water was itself an affirmation of a public policy favoring the market allocation of water resources . Several specific attributes of private water right s
reflected identifiable public policy . It has long been the rule that th e
waste of water is not a beneficial use, a rule which seeks to maximize th e
amount of water available for productive use . However, the application of th e
rule is based upon a reasonablenessstandardin which reasonableness is define d
in terms consistent with a market approach to water allocation . Water user s
3
" . . . cannot be expected to install methods now that might reduce to a minimu m
the amount of water necessary, at a cost that would absorb the profits ." Th e
rule of beneficial use itself has obvious policy objectives .
Public policy reflected in particular aspects of private water right s
appears directed either at the correction of market failure or at the alteratio n
of efficient, but for some reason undersirable, market allocations . An exampl e
of the latter is the rule favoring domestic over all other water uses . I f
applied as a true preference, this rule allocates water in a time of scarcit y
on the basis of the nature of the use rather than the priority date of th e
right . If reflects a preference for survival of the water poor over th e
economic or aesthetic welfare of others .
Transfer Right s
Water rights attributes which appear to have the purpose of correcting for market failures include those affecting transfer and loss of rights .
Restraints on transferability reflect the inability of all affected right s
holders to be represented, as they must be, in a transaction leading to a chang e
in the nature of use, place of use, or point of diversion of a particular wate r
right . The institutionalization of a transfer approval process presumabl y
lowers transaction costs and allows most affected rights holders to be represented . The transferability restraint, in other words, is an attempt to facilitate market exchange by reducing prohibitive transaction costs . Transfe r
limitations may also reflect a public policy favoring a particular water use ,
or may be the inheritances of a riparian rights system in which water and lan d
were appurtenant by definition .
A discussion of the policy content of the rules of water right s
ownership could go on, but for present purposes it will be sufficient to recognize that, whatever the wisdom and logic of these policy contributions to th e
law of private rights in water, the system of water allocation within eac h
western state was predominantly a market system . The state layed down som e
policy relevant ground rules, was a commitment to private decision making i n
water allocation .
The big political issues of water allocation in the first five or si x
decades of the twentieth century were not over water allocation in an economi c
sense, they were over how the water management authority was to be exercised i n
a federal system . To be sure these were disputes over the best uses of water ,
but to some degree the water use issue served as a vehicle to pursue the wate r
management authority issues, perhaps in anticipation of impending scarcities wit h
which government at some level sould be expected to deal . States argued wit h
the federal government over the extent of federal constitutional powers in wate r
regulation . States argued with each other over the control of water withi n
their geographic boundaries . States argued internally over control of thei r
own waters . Through it all, however, the private water rights owner was no t
seriously challenged . The commitment to market allocation of water appeare d
secure .
4
Intervention in Market Plac e
In 1927, the United States Supreme Court upheld, in Euclid v . Amble r
the
authority of a state to zone land in the interests of promoting th e
Realty,
public health and welfare . In 1973, the Supreme Court of Wisconsin upheld th e
application of a wetlands regulation law which effectively deprived the owne r
of affected lands of the economic value of his private property . The now pervasive system of land use planning and zoning is dependent upon the rational e
of the Ambler Realty decision, if not the extreme consequences of the Wisconsi n
ruling . It is a rationale based upon the belief or assumption that privat e
decision making in land allocation will lead to a less than socially optima l
utilization of land . It further assumes that these market failures will not b e
corrected through improvement of the private rights system itself . The conclusion, evidenced by the growing network of land use regulations at both th e
state and federal level, is that the public interest will be achieved throug h
direct intervention in the market place to the extent that clearly define d
vested rights in land are changed without any form of compensation to th e
affected party .
The water rights compartment of America property law has no t
experienced anything analogous to "the quiet revolution in land use control" .
Whatever the states may do to influence initial water rights definition, an d
whatever they may do to jockey for position in the federal system, the state s
have seldom if ever seen fit to alter in any meaningful way existing, veste d
rights in water . The remainder of this paper examines the issues of the stat e
role in water allocation in the context of two very different approaches b y
Montana and Colorado to the specific problem of water allocation to instrea m
flows . This rather narrow focus will help to illuminate the much broader issu e
of the appropriate regulatory role for the state . In the process, it may als o
be possible to better understand the stark contrast between agressive stat e
regulation of private rights in land and an apparent reticence to affec t
private rights in water .
PUBLIC INTEREST IN WATER ALLOCATIO N
Historically, water rights in the West have been limited to traditional "economic" uses like mining, agriculture and industry . In 1913 th e
Eighth Circuit Court of Appeals of the United States rejected a private clai m
under Colorado law based upon a resort's interest in preserving the natura l
beauty of a waterfall . "It may be," wrote the court, "that if the attentio n
of the lawmakers had been directed to such natural objects of great beaut y
they would have sought to preserve them, but we think the dominant idea wa s
utility, liberally and not narrowly regarded, and we are constrained to follo w
it ."
Not until 1973, a full six decades later, was the attention of th e
Colorado lawmakers directed to the preservation of water values not include d
in this "liberally regarded" notion of utility . In that year the Colorad o
legislature broadened its definition of beneficial use to include minimum flo w
preservation on natural streams and lakes . But even then, the state did no t
seek to impose minimum flows upon private water rights owners the way land us e
laws had imposed limitations on private land holders . The 1973 Colorado la w
merely authorized the state to establish minimum flows by competing in th e
market place on an equal basis with all others desiring water for beneficia l
uses .
5
Before examining the Colorado situation in greater depth, a brie f
consideration of public interests in water allocation will be instructive .
Minimum stream flow maintenance is just one example, and a very good one fo r
the purposes of this paper, of a potential water use which is unlikely to b e
realized in a system of exclusive market allocation . Even absent rulings suc h
as that in the Federal Circuit Court decision mentioned above, the allocatio n
of water to non-consumptive, instream uses such as recreation, fish habita t
protection, and aesthetic enjoyment is not likely to occur on any significan t
scale in a market system of private transactions . The reasons are those whic h
provide the classic justifications for government intervention in the marke t
place .
Aesthetics and Recreatio n
The benefits of aesthetic and recreational use of natural water courses are generally realized in relatively small amounts by numerous an d
diverse members of society . The transaction costs, including organizationa l
costs, will more often than not prevent those interests from competing in th e
market place . In addition, the nature of most aesthetic and recreational use s
in such that benefits take the form of public goods . Even if private interest s
could raise the necessary capital to purchase a water right for an aesthetic o r
recreational purpose, they would have difficulty controlling the consumptio n
of benefits and therefore difficulty in realizing a return on their investment .
As with other types of public goods, free riders would realize significan t
external benefits, with a resulting under-investment in aesthetic and recreational water uses .
The physical characteristics of the water resource are the principl e
cause of market failure in water allocation . Water in natural watercourses ha s
the character of a common pool resource . It cannot be fenced in the way tha t
land is .
It is difficult to define exclusive rights in water . The earl y
Anglo-American legal response to the ownership or right of use of water wa s
the common property system of riparian rights . It is a system which suffer s
from the allocational deficiencies of all common property systems . The costs o f
enforcing individual rights in a common property system are increasingly prohibitive as the number of correlative rights holders becomes large . Th e
result is the allocation of significant resources to enforcement and an accompanying under-investment in the development or preservation of the resourc e
commonly held .
Appropriation Syste m
The Western response to these shortcomings of the riparian right s
system was the existing system of appropriative rights which creates exclusiv e
rights not by subdivision of the resource, but by a system of temporal priority .
The system has been reasonably successful in creating for rights holders a
meaningful level of certainty with respect to water quantity . However, th e
appropriation system is not free from market failure . The inability of numerou s
and disparate consumers of small, yet real, benefits to compete in the marke t
because of high transaction costs may be justification for government intervention . Secondly, the exclusivity which appropriative rights owners have wit h
respect to water quantity does not exist with respect to water quality .
Significant external costs in the form of pollution result from private use o f
6
water . With respect to water quality, it would stretch reality to contend tha t
even a primitive common property system exists . Thus, the factors which justify
public intervention in a riparian system of water rights, a 'he equally if not mor e
persuasive with respect to pollutive uses of water under western appropriatio n
1 aw .
The case of minimum stream flow maintenance calls for some form o f
public intervention for the reasons suggested above . The benefits of minimu m
stream flows are of at least four types : 1) aesthetic, 2) recreational, 3 )
water quality control, and 4) wildlife habitat maintenance . Many aesthetic an d
recreational uses, such as hiking, sightseeing, rafting and fishing, are of th e
nature of numerous and disparate interests which, because of transaction costs ,
are unable to compete effectively in the market .
Water quality control is a straightforward externalities proble m
which requires some form of public intervention to assure that costs ar e
internalized and that polluters do not over-invest in polluting activities o r
under-invest in pollution control . As a practical matter the level of strea m
flow is directly related to the impact of existing pollutants on stream quality .
Finally, wildlife habitat maintenance presents peculiarly complex problem s
calling for public intervention due not only to the factors discussed above ,
but also to the fact that the wildlife resource itself has the characteristic s
of a common pool resource .
Accepting that some minimum level of stream flow is to be preferre d
to dry streambeds from a social welfare point of view, and accepting tha t
market failures associated with the existing private water rights syste m
necessitate some form of public intervention if optimal minimum flow level s
are to be preserved, the following two sections examine the approaches adopte d
by the states of Colorado and Montana : The final section seeks to draw som e
conclusions based upon a comparison of these two state systems .
COLORADO :
A CASE OF RESTRAINED PUBLIC CONTRO L
Colorado is appropriately the namesake of that strain of wester n
water law which is exclusively an appropriation system . It is a doctrine whic h
respects the initiative of the person who actually invests time and resources i n
the development of a resource . The doctrine - is a living version of the Lockia n
conception that property rights should be granted to those who have put thei r
labor into increasing the value of physical ,resources . It is not surprising ,
therefore, that a laissexfaire approach to water allocation has dominated an d
continues to dominate in Colorado .
In 1963, the Colorado legislature authorized the Colorado Rive r
Conservation District to appropriate, for the use of the public, water of an y
natural stream sufficient to maintain the fish habitat . When the Distric t
sought to implement its new power, its action was challenged as being i n
violation of the long standing requirement that water could not be appropriate d
without a diversion . In Colorado River Conservation District v . Rocky Mountai n
Power Company,
the Colorado Supreme Court found "no support in the law of thi s
state for the proposition that a minimum flow of water may be 'appropriated '
in a natural stream for piscatorial purposes without diversion of any portio n
of the water 'appropriated' from the natural course of the stream ." Thus the
first attempt at minimum flow protection in Colorado was aborted .
In 1969 the Colorado legislature adopted the Water Rights an d
Administration Act of 1969 which was designed to facilitate the adjudicatio n
of existing rights, an outcome which would in turn facilitate the working s
of the market as a water allocation mechanism . A 1973 amendment to the 196 9
Act sought to succeed where the 1968 instreamflow legislation had failed . Thi s
1973 act amended the definition of appropriation to eliminate the statutor y
requirement of a diversion which had been the basis of the Rocky Mountain Powe r
The legislation also expanded the definition of beneficia l
Company ruling .
use to include minimum stream flows "to preserve the natural environment to a
reasonable degree" .
Supreme Court Act s
Again the Colorado Supreme Court was called upon to consider th e
legitimacy of the law, this time on the basis of a claim that the Stat e
Constitution required diversion and that the law could deprive Colorado citizen s
of their Constitutional rights to appropriate water . The Court upheld th e
constitutionality of the 1973 minimum flow law in the 1979 decision in Colorad o
River Conservation District v . The Colorado Water Conservation Board .
An effor t
begun in 1963 thus culminated sixteen years later in a final determinatio n
that the State and Colorado could act to preserve minimum stream flows .
During those sixteen years the controversy was not limited to th e
courts . In 1977 both houses of the Colorado Legislature approved legislatio n
which would have prevented the State as owner of a minimum flow right fro m
opposing the transfer of change of use of a senior right . The legislation, whic h
was vetoed by the Governor, would have deprived the state of the only rea l
strength its minimum flow rights would give it . Because the State appropriate s
minimum flow rights with very junior priority dates, it has not protectio n
during low flow periods . The rule which prevents water rights transfers i f
they would harm existing rights, is the principal handle a junior rights holde r
has on influencing future water allocations . The 1973 Act was subjected t o
further attempts at amendment in 1979 and the effort will surely not b e
abandoned in the next legislative session .
Beneficial Use Defined
If one steps back from the politics and litigation of what is a n
emotional issue to many in Colorado, there is an inclination to wonder why al l
the uproar . The State of Colorado has not been empowered to use its police powe r
to make sure water is left in the State's streams and lakes . It has not eve n
been suggested that the State develop a serious water management plan whic h
might then be implemented, as is a land use plan, through government restriction s
and limitations on vested private rights . The only thing the State has done i s
to expand the definition of beneficial use to include minimum flow preservatio n
and to authorize the Colorado Water Conservation Board to appropriate wate r
for minimum flows on the same basis as any private party would acquire a ne w
water right and to compete in the market for the purchase of existing rights .
The law guarantees that the State will have no competitive advantag e
by prohibiting the use of its traditional eminent domain power as a means o f
8
acquiring instream flow rights . Thus, the State is not seeking to exercise som e
form of police power regulation which might justify alteration of vested privat e
rights as it has in land use regulation . The State does not even seek to forc e
its view of optimal water use on the market by requiring unwilling sellers to sell .
It is clearly a market system in which the State has only whatever influence it s
taxpayers are willing to give it .
Yet many in Colorado have fought the minimum flow program on ever y
front . Given their own vested interests, it should be no surprise . Historically ,
the beneficial use standard has restricted entry into the water rights market .
People seeking to use water for "non-beneficial" purposes have simply bee n
barred from the acquisition of water rights, whatever price they might be willin g
to pay .
The relaxation of this entry restriction is not an insignifican t
occurrence to those who have benefitted from reduced competition in the past .
Secondly, it is also significant that the State is authorized to act for thos e
who would be precluded from the water rights market because of the burden o f
_ high transaction costs .
Whether the market approach to minimum flow water-allocation i s
working in the sense of improved economic efficiency or in the sense o f
achieving a more desirable distribution of benefits, and whether the fears o f
those threatened either by improved efficiency or wealth redistribution ar e
warranted, are questions which only more experience can answer .
To date the State of Colorado has acquired nearly-1000 minimum flo w
rights on lakes and streams . Almost all of those are upstream or hig h
mountain . rights in water -fn which no one else had any interest . However, th e
State's ability as a junior appropriator to object to water rights transfer s
or changes tn . use which are detrimental to the State's instream rights wil l
certainly' be of significance to future water allocation in Colorado . This wil l
be particularly true if the State becomes serious about purchasing downstrea m
rights Which will be impacted by upstream transfers and use changes .
MONTANA :
A CASE OF EXPANSIVE PUBLIC CONTRO L
Montana is a Colorado Doctrine state in the lingo of western wate r
law, which suggests, accurately, that Montana's water law looks a good deal lik e
the water law of Colorado . It is an exclusively appropriation system whic h
allows for the private acquisition of water for beneficial uses which includ e
"agricultural, domestic, fish and wildlife, industrial, irrigation, mining ,
municipal power, and recreational uses" .
In 1973, the Montana Legislature adopted the Water Use Act which wa s
designed to implement a Constitutional provision requiring the State to administer ,
control and regulate water rights and to establish a centralized records system .
Prior to 1973, the private water rights system in Montana suffered from a
common (among other states) inadequacy of information on existing rights . Th e
market exchange of rights was seriously hampered by this lack of ownershi p
records, and it caused individual rights holders to be uncertain about th e
extent of their particular rights .
9
In addition to i'ts purpose of clarifying existing private wate r
rights, the 1973 Water Use Act created a channel for expansive public contro l
of future water allocation in the State of Montana . Under the Act, state an d
federal agencies, as well as political subdivisions of the State, may apply t o
the Board of Natural Resources and Conservation to reserve water for existin g
or future beneficial uses, or to maintain a minimum flow or quality of water .
Applicants for water reservations must show, among other things, that th e
reservation is in the public interest .
State Allocates Wate r
The effect of this reservation system is similar to that of th e
various withdrawals from the United States public domain which led to th e
creation of the National Park and National Forest systems . The water resourc e
is publicly owned and has been made available to people who would appropriat e
it for approved uses . The State subsequently decides that it will withdraw ,
through water reservations, a portion of the water which will no longer b e
available for private acquisition . The system in no way affects existin g
vested rights, nor does it eliminate the legal opportunity for future privat e
acquisition of water . It does, however, reduce the amount of water availabl e
for future private appropriation and it puts the state in a new role a s
allocator of some of the state's water . The waters are no longer up'for grab s
in a competitive market place . They are now up for grabs in the politica l
arenas of local, state and federal government .
.
This Montana system for reserving water for future uses is particularly interesting in light of a strong historical bias in western water la w
against the holding of water for future use . Private speculation in wate r
was and continues to be discouraged by rules penalizing the non-use of a wate r
right . The water right is acquired by putting the water to a beneficial use ,
and the right will be lost if the water is unused . In a system of poor records ,
abandonment and prescription are mechanisms for identifying truly abandone d
or forgotten water rights .
However, they are also mechanisms which demand present developmen t
of water rights to protect the right, and thus a probable over-investment i n
current as opposed to future water utilization . This bias for resourc e
development now and against speculation in possible future values, a bia s
reflected elsewhere in the law of the developing west, is lost upon a syste m
which allows for the reservation of water for future use .
Moratorium Passe d
The Montana reservation system does not pre-empt the right of privat e
parties to appropriate water in accordance with a permit procedure also established by the 1973 Water Use Act . In the face of dramatically increasin g
pressure for water on the Yellowstone River, a demand related primarily t o
energy development in Southeastern Montana, the Legislature passed a thre e
year moratorium on the approval of pending or future permit applications .
During the moratorium, which was later extended, the Board of Natural Resource s
and Conservation accepted applications for water reservations on the Yellowston e
River .
TO
Over thirty reservation applications were filed pursuant to a procedure established by the Department of Natural Resources and Conservation . O f
these applications, two were for significant instream flow reservations . Th e
other applications were for agricultural and municipal uses . The Montana Fis h
and Game Commission sought a reservation of 8 .2 million acre feet per year a t
the eastern edge of the state for fish habitat protection . The Montana Department of Health and Environmental Sciences applied for an annual flow at the
same location of 6 .6 million acre feet for water quality maintenance .
The Board of Natural Resources conducted protracted hearings whic h
were followed by lengthy deliberation prior to the issuance of a feral order i n
.
1979 . The procedures employed by the Board and the factors which influenced
its final decision are fascinating subjects, but their discussion is not centra l
to the objective of this paper . that is central is the recognition that th e
State of Montana, through a Board of citizens appointed by the Governor, ha s
prospectively allocated most of the waters of one of its three large rive r
basins . The legal significance of these reservations in' relation to existin g
and future appropriated rights is not entirely clear, nor is the authority o f
the Board with respect to future adjustments of the initial reservation order .
But these substantial uncertainties aside, the Yellowstone River has been
parceled out and the State is already making plans to launch similar reservatio n
proceedings on the Missouri and Clark Fork River basins . Early planning by th e
Department of Natural Resources and Conservation anticipates a more coordinate d
and less contentious approach on the part of state agencies than was the cas e
on the Yellowstone .
The Colorado Doctrine still prevails in Montana . It does not appea r
that the reservation system in any way alters existing water rights or tha t
right to appropriate new water rights . However, the reservation system doe s
remove from the workings of this private rights allocation system the larges t
portion of the water in perhaps the most economically important river in th e
State . The water removed from the private market will be allocated by the Boar d
of Natural Resources and Conservation as they make and amend reservations an d
by the local, state and federal agencies who are the beneficiaries of th e
reservations granted .
PUBLIC CONTROL AND PRIVATE RIGHTS :
WHICH PATH IS BETTER ?
As was pointed out at the beginning of this paper, public contro l
of water allocation is minimal in relation to the extensive public regulatio n
of land use . Not even in Montana has it been seriously suggested that th e
state might, for example, require irrigators to forego half of their wate r
right in the interest of protecting the fish habitat or water quality in th e
way that the down zoning of a parcel of land will sometimes reduce its valu e
by 50 percent . Perhaps this reticence or perceived inability to regulat e
private water rights is a product of a history of scarcity and its relate d
disputes . Or the states may feel estopped ; in a way, because of the beneficia l
use conditions imposed upon the initial acquisition of a water right . Bu t
notwithstanding the fact that private rights in water have rarely been th e
subject of significant state regulation, the contrast between the Montana an d
Colorado approaches to instream flow maintenance is dramatic . There are n o
doubt • lessons to be learned, but they will not be easily understood .
11
The Montana approach is dramatic and its impact is immediate . A n
instream flow reservation of nearly 6 million acre feet per year makes most i f
not all of Colorado's minimum flow rights appear insignificant at best . Bu t
comparison of the systems must begin with a recognition of where both state s
were when they began to think about minimum flow preservation and other use s
not provided through the traditional private market transactions .
Montana has a relative abundance of water, Colorado, particularly o n
the east slope, has been water short for half a century . In a sense it wa s
easy for Montana to decide to reserve water for future use, because suc h
reservations would not deprive existing uses . The Board's decision on th e
reservation applications was also made easy by the relative abundance of water .
To be sure the Board agonized over their decision, but the issue they faced wa s
how to satisfy everybody, not who do you satisfy and who must go without . Th e
latter question will only be asked when scarcity demands it . In Colorad o
scarcity requires that some will have less water than they want and others ma y
have to go without . Under those conditions the reliance on a market allocatio n
mechanism is not surprising .
The situation in these two states contradicts a commonly held vie w
that increased scarcity will necessitate increased government regulation an d
intervention . Perhaps Colorado has yet to reach that condition of scarcity
which triggers expanded government control . Only time will tell for sure, bu t
for the moment it appears that government regulation has not been perceived a s
the only available route for the allocation of a scarce resource .
It is probably also premature to assess the relative adequacy of th e
market and public control approaches, and in any event it is beyond the scop e
of this paper to attempt such an empirical study . Many in Colorado are very
pleased with the progress of the state's minimum flow program . They ar e
optimistic that the state will plan an increasingly important role in wate r
allocation as the state requires more downstream and senior water rights .
Others in the state are less optimistic, but seem to see littl e
prospect for a more aggressive state posture . The director of a state sponsore d
water study says that the state has only three ways of influencing the allocatio n
of water : it can negotiate agreements with federal agencies developing wate r
projects in the state, it can acquire minimum flow rights under the 1973 law ,
or it can purchase rights in the market . The difference between the optimist s
and pessimists in Colorado comes down to their perceptions about the state' s
ability to effectively influence water allocation through participation in a
market allocation system .
Because of numerous legal uncertainties with respect to the Montan a
reservation system, it is difficult to predict its long range impact on Montan a
water use . It is clear, however, that the reservation system represents a
strong commitment to expansive public control over future water allocation i n
the state . The Board's experience on the Yellowstone suggests that despit e
widespread satisfaction with the results, there is a serious need to examin e
and improve the process by which such public allocation decisions are made .
The complexities of diverse interests and voluminous technical evidence deman d
sophisticated decision making processes if public water control is to avoid th e
perceived misallocations which call the public control into existence in th e
first place .
12
It will be fruitful to continue to study the contrasting approache s
to allocating water to minimum flows in Colorado and Montana . For the present ,
however, it is of no small significance to recognize that the normal, ofte n
reflexive, appeal to expanded public control of scarce resource allocation i s
not the only available course of action . The Colorado experience with publi c
participation in the market rather than public regulation of the market bear s
watching closely in the coming years .
13
Presented November 1, 1979 by LOU FREDD, Oregon Department of Fish and Wildlife ,
Portland, Oregon .
Pallcied acrd rf9aaeec Scc44tem 4
been asked by Director Donaldson to discuss with you toda y
' have
"Policies and Aquatic Ecosystems" -- a subject which I hope i s
sufficiently broad to cover the substance of my remarks . What I propose to d o
is outline for you the principal policy and administrative tools the Departmen t
of Fish and Wildlife uses to ensure adequate supplies of water for the fish an d
wildlife resources of this state .
The abundance of fish and wildlife is fundamentally determined b y
habitat quality . For fish and other aquatic life, habitat is water . Withou t
water in sufficient quantity and quality, commercially and recreationall y
desirable species of fish fail, to be replaced with species of little or n o
utility . All of us enjoy the native fish of Oregon, as consumers ; for income
if we happen to be commercial fishermen or involved in related industry ; fo r
recreation if we happen to be sportsmen ; or we may enjoy them simply for th e
sake of their existence and what their presence tells us about the health o f
our environment . At the same time, we enjoy the comfort and convenience growing out of the utilization of the state's wa-ter resources for economic an d
social development in its many forms -- hydroelectric generation, flood control ,
irrigation, dependable and clean home water supply, and so forth . The wate r
consumptive demands for this development has, and will continue, to jeopardiz e
aquatic life -- most especially our once magnificent runs of anadromous fish ,
salmon and steelhead in particular .
These demands can take unanticipated form . For example, if I ma y
use a figure of speech innocently, a proposal has just recently surfaced t o
divert 200 cfs from the Willamette River near Eugene to develop Amazon Ditc h
for urban-centered recreation . By present day standards, this is a larg e
diversion . Although details are sketchy, I believe plans are to run the wate r
through the Ditch to Fern Ridge Reservoir and thence down the Long Tom Rive r
back to the Willamette . The diversion could cause considerable loss of down stream migrant salmon and steelhead from the main Willamette if unscreened .
15
There may be other undesirable effects on fish and wildlife resource s
of the main Willamette, including perhaps loss of spawning areas and deterioration of water quality -- all side effects which are difficult to predict an d
quantify . The project, if it becomes reality will require careful coordinatio n
among our Department, the State Water Resources Department, the local sponsor ,
and perhaps quite a few other agencies, if it is to have little or no detrimental effect on a long pursued objective of the Department of Fish and Wildlif e
-- to restore salmon and steelhead runs of the Willamette River and its tributaries to potential abundance .
PISTOL RIVER PROPOSA L
More in an anticipated vein is a current proposal by private developer s
to appropriate up to 1100 cfs of the flow of Pistol River, a small coastal strea m
in the southern coast near Gold Beach, to create a low-head hydroelectric plant .
Given the energy crisis, we expect to see many low-head hydro proposals . The
proposed diversion would greatly reduce seasonal flows of the main stem Pisto l
River at a point critical to the upstream passage of its runs of chinook salmon ,
steelhead, and cutthroat trout . Also, screening of the diversion would b e
essential to protect downstream migrant juvenile fish from turbine injury .
The Department of Fish and Wildlife has intervened in both Stat e
Water Policy Review Board and Federal Energy Regulatory Commission proceeding s
to ensure adequate safeguards for migratory fish are built into the projec t
and its operating criteria . The cost of such safeguards in terms of powe r
production opportunity forfeited to minimum flow requirements, screening device s
and fish ladders, certainly makes the economic feasibility of this projec t
questionable at this time .
In the above examples, the Department of Fish and Wildlife has ha d
to react through the administrative processes of other agencies to ensure safe guards for resources affected by proposed developments of water resources vita l
to fish and wildlife . On the other hand, we also use those administrativ e
processes in a prospective way ; that is, to establish long-term policies whic h
resolve existing conflicts, or which minimize possible future conflicts ove r
water allocation . As an example, we expend considerable biological and lega l
expertise to develop satisfactory minimum flow schedules for the Columbia River .
That is an interstate effort involving the fishery management agencies o f
Oregon, Washington, Idaho, the federal government, and the treaty Indian tribes .
One result of this effort has been to establish a means for maintaining a minimum flow of 110,000 cfs during the month of May in the main Columbi a
at McNary Dam for the purpose of facilitating the downstream migration o f
juvenile salmon and steelhead through the lower reservoirs and dams . This i s
accomplished through agreement on use of water stored in reservoirs on th e
Snake and upper Columbia rivers, and exchange of power produced at federal an d
private turbines . To maintain 85,000 cfs flow at the mouth of the Snake i n
May, water is drafted from Idaho Power projects on the Snake River .
Power production lost to Idaho Power is repaid by the federal govern ment through generation at Dworshak Dam, operated by the Corps of Engineers o n
the Clearwater system . The balance of required flow is developed by release o f
storage from Coulee Dam, operated by the Bureau of Reclamation . Use of storag e
16
for fish mitigation on the Columbia River and its tributaries involves in almos t
every instance complicated power exchanges with international implications ,
since overall storage policy in the Columbia is regulated under treaty betwee n
the United States and Canada .
Closer to home, protection of aquatic resources in allocation o f
in-state waters is determined mostly through interaction of the Department o f
Fish and Wildlife with the state Water Resources Department, and with federa l
agencies implementing congressionally authorized water development projects .
To a much lesser extent, protection is achieved through direct agreement between the Department of Fish and Wildlife and other water users . Such agreements, although binding on the affected parties, are not an integral part o f
state water resources policy .
Water appropriations in Oregon are administered by the state Wate r
Resources Department . The nature and extent of new appropriations is determined ,
by statutory policy, water resources policy of the Water Policy Review Board ,
and administrative actions of the Water Resources Department within these polic y
guidelines .
The Department of Fish and Wildlife believes that statutory policie s
of the State of Oregon provides the Water Resources Department with ampl e
authority to provide a reasonable level of protection for fish and wildlif e
habitat from new consumptive appropriations . That statutory authority must b e
implemented, however, through water resources program statements developed b y
the Water Policy Review Board . Statutory policy clearly identifies fish ,
wildlife, and recreation as beneficial uses to be considered, without prioritization, against other beneficial uses in the development of Board policies .
Statutory policy is also clear that the Board must give due regar d
to protection of fish and wildlife resources in the planning of multi-purpos e
impoundments and drainage projects . Further, the Board is directed by statut e
to "foster and encourage" minimum perennial streamflows sufficient to suppor t
aquatic life and to minimize pollution, subject to existing rights . A principa l
objective of the Department of Fish and Wildlife is to support the Board in it s
effort to improve and extend its policies for protection of minimum perennia l
streamflows within the state .
In meeting that objective, the Department of Fish and Wildlif e
provides the Board with information on streamflow requirements for maintainin g
satisfactory populations of fish . These recommendations stem mostly from a
state-wide survey conducted by the Wildlife Commission approximately ten year s
ago . Since that time, the Board has used those recommendations in its newe r
basin programs . The job of incorporating those recommendations into program s
with state-wide coverage is far from complete, however . For example, th e
Rogue and John Day Basins support some of the most important anadromous fis h
runs in the state, but programs for these basins predate our minimum flo w
recommendations, and we regard them as seriously deficient with respect t o
minimum flow protection for small tributaries which provide some of the mos t
important spawning and rearing areas .
It is estimated by some that present Board policies provide 20,000,00 0
acre-feet of water for fish habitat . In our opinion, considerably more allocation of water for this purpose will be required to provide adequate, state wide coverage .
17
APPROPRIATION S
As I stated previously, new appropriations are administered withi n
statutory and Board policies, by the Director of the Water Resources Departmen t
and his staff . The Board rarely, if ever, reviews proposed appropriations unless there is question of conflict with Board policy . The Department of Fis h
and Wildlife and the Water Resources Department have an interagency agreemen t
which provides environmental review of new appropriations prior to approval .
This review provides an opportunity to identify fish and wildlife resource s
affected by and new appropriations and to develop solutions of potential conflicts or policy issues for Board considerations . The interagency agreemen t
which defines staff procedures for the review is relatively new, and it is to o
soon to assess its effectiveness in reconciling conflicts between new consumptiv e
uses and instream resource values . I believe, however, it has been extremel y
helpful already in coordinating management aims of the two agencies .
Let us turn now to some discussion of the Department of Fish an d
Wildlife's role with respect to federal water development projects . Thes e
projects have considerabl y, modified flow characteristics of several importan t
Oregon rivers, such as the Willamette and Rogue . Newer projects, such as Los t
Creek and Applegate dams in the Rogue Basin, have leaned heavily on fisher y
enhancement for favorable benefit : cost ratios . Consequently, considerabl e
storage in these reservoirs is dedicated to downstream flow enhancement .
The Department of Fish and Wildlife has participated actively i n th e
design of these projects for fishery enhancement functions . Authorized flo w
schedules will serve to improve water quality and quantities of flow for upstrea m
and downstream anadromous fish migration, spawning and rearing as well as sup port of resident fish populations . This habitat irilpkro . ement is limited to th e
main-stem and to be most effective should be complemented by state wate r
resources policies protecti•ng'streamflows in important tributary systems .
Unfortunately, in the Rogue Basin and, toiallesser extent, th e
Willamette Basin, this coordination of state and fed ral programs has not ye t
been ach5-eved . We are hopeful that new programs for' the Rogue- and Applegat e
Basins will be adopted by the Board this biennium .
The . amounts of water required for fishery enhancement purpose s
associated with water development projects is large . In average years, abou t
125,000 acre-feet of storage will be utilized from'Lost Creek to,mair'utain a
congressionally-authorized flow schedule for that purpose . The Department o f
Fish and Wildlife is currently evaluating . the effects of that flow regime o n
fish life of the Rogue River . A similar study is planned for Applegate projec t
when it is completed . The purpose of the evaluation is to determine ho w
storage authorized for fishery enhancement can be best utilized .
Optimum utilization may require adjustments in initially planne d
flow regimes -- adjustments which may be difficult to secure without congressional action, and the cooperation of the state and federal agencies and othe r
affected interests . This points out some of the risks and uncertainties face d
in designing water development projects with fish mitigation function, sinc e
existing habitat must often be sacrificed before habitat improvements can b e
verified .
18
I would like to note-in passing that water development projects wit h
dedicated fishery enhancement fUnct'ions provide the DepartmertLof Fish and Wild life with the rare opportunity to legally appropriate instrean flows -- but onl y
to the extent those flows are developed out of dedicated storage also legall y
appropriated by the Department .
In this brief overview, I have neglected to point out many mino r
considerations, and perhaps some important ones as well . I hope however I hav e
left you with better understanding of the objectives and activities of th e
Department of Fish and Wildlife in the development of state. and federal water- policies affecting aquatic ecosystems .
Presented November 15, 1979 by ANNE SQUIER, member of Oregon ' s Land Conservatio n
and Development Commission, Salem, Oregon .
?Pam Rammed aid Zama Zlde Pe'aaaea g
ABSTRAC T
Oregon's land use planning program, in the ideal, encompasses join t
planning by all interested parties for the use of land, water, and air withi n
a city or county . Whether the program will endure or fall will be largel y
determined by our success or failure in coordination of state and local planning .
There are close ties between the land use program and traditiona l
water planning ,
A number of problems can be identified as plans are submitted fo r
acknowledgement :
1, Cities need better information on future water availability i n
order to do basic growth planning .
2. Counties and some cities need increased understanding of th e
extent of their dependence on in-stream flows, and their responsibility t o
participate in state policy formation to protect those interests .
3. Many cities are extremely concerned about protection of water shed areas outside their jurisdiction and will be bringing to the fore a conflict between city/public welfare concerns and those of county, private an d
agency programs .
4. Overriding need for agency participation by the Water Resource s
Department (as by all agencies) in plan development and review .
In a positive vein, plan strengths include floodplain zoning ,
reservoir site protection and increasing awareness of water policy questions .
Too, the state Water Resources Department has established a program for recognizing the land use plans and goals in their permit issuance program, utilizing the "Public interest" referral statute .
21
1
Future issues discussed include flood control planning, the 20 8
program with relation to population projections and minimum flows, minimu m
flows into estuaries, reservoir site selection, non-federal cost sharing an d
basin updates . As a result of interaction with the land use planning process ,
and increasing scarcity of the resource, updated basin plans will focus mor e
on quantification of allocations and on reservations than on the present broa d
brush definition of beneficial uses .
OREGON'S LAND USE PLANNING PROGRA M
The 1955 water law changes which established a framework for toda y ' s
basin plans were an important step forward in land use planning in this state .
In essence, basin planning established a process for setting out the appropriate and feasible land uses in a county area, since water availability leads an d
controls land uses . This for many counties was as close to land use plannin g
as they had seen to that point . The process included considerable technica l
and inventory input, some public debate, and a final policy decision by th e
water resources board .
Our present land use program is not very different in basic structure :
the intent is to make a decision as to appropriate use of land area, rather tha n
a water source ; the public input and debate ; and decision making . What make s
Oregon's program an innovation and a grand experiment is that it attempts t o
utilize all information about the area being planned-not just informatio n
related to water use, not just information for transportation, not just loca l
economic or social needs--and to accomodate and recognize the plans and program s
of all affected jurisdictions and agencies .
Oregon's land use planning program seeks as an ideal to produce a
coordinated comprehensive plan which, for d given segment of land, lays ou t
uses agreed to by all interested and affected parties . The potential benefit s
from such a plan are apparent . No longer would one state agency be plannin g
and making decisions for an area based on an assumption of high growth, whil e
another agency having some additional information (perhaps regarding wate r
availability, or air quality problems) is making decisions for the same piec e
of land based on an entirely different projected growth . Finally, neither o f
these agencies would be planning without foreknowledge of the affecte d
community's vision of and plans for the future .
So much for ideals . What does the law say today ?
ORS CH . 197 mandates the preparation of coordinated, comprehensiv e
land-use plans, to be in conformance with statewide planning standards, th e
goals adopted by LCDC .
1.
"Land" includes water, both surface and subsurface, and the air .
2. "Comprehensive" means all-inclusive both in terms of the geographic area covered and the functional and natural activities and system s
occuring in the area covered by the plan .
3. "Coordinated" means (again, from the statute) that the needs o f
all levels of government, semi-public and private agencies, and the citizen s
22
of Oregon have been considered and accomodated as much as possible ,
Coordination is the key to the whole process . In Senate Bill 10 0
the legislature made a clear choice as to what type of land use plannin g
system Oreg.pn would have :
Cities and counties should remain as the agencies to manag e
the local aspects of land conservation and development with in their jurisdictions ; and to promote coordinated administration of land uses it is necessary to have planning goal s
to be applied by state agencies, cities, counties, an d
special districts throughout the state,
Both the statute and Goal 2 require that agencies make their interest s
and responsibilities known in the coordinated planning process, as well as t o
supply information and technical resources available within the agency so as t o
improve the factual base for the plan . Thus, the final plan adopted at th e
local level will reflect not only the questions, concerns, and standards in th e
statewide planning goals but incorporate and 'accommodate the needs and plans o f
all levels of government as muchaspossible .
There will be conflicts . Coordination does not mean that state agencies have a veto power over a pla n
policy proposed at the local level, nor that local government has veto powe r
over a proposal from a state agency . It does mean that wherever there is a
conflict, the final decision must be based on the facts of the situation an d
the'rationale for the decisions must be available .
Planning Goal s
This then is a brief description of-coordinated comprehensiv e
planning . What are goals? They are statewide planning standards to which all _
plans and implementing regulations must conform . After extensive hearings i n
1973-1975 LCDC adopted a total of 19 goals (see Appendix . A) .
What do-the Goals have to do with water resource planning ?
Although only Goal 6 (Air, water, and land resources quality) an d
Goal 16 (estuarine resources) have an obvious tie to water, coordinated water /
land planning is critical to the majority of goal topics . Examples : .
Goal 3 : Defines agricultural lands as being certain Soil Conservatio n
Service (SCS) class lands and other lands suitable for farm use taking int o
consideration many factors, including "existing and future availability o f
water for farm irrigation purposes" .
Goal 4 : Defines forest-lands not just as those with potential fo r
commercial use
but "other forested lands needed for watershed protection" :
and defines forest uses far which these lands must be retained to include_
watershed protection .
'
Goal 5 : Mandates that the location, quality, and quantity of wate r
areas, wetlands, watersheds, and groundwater resources be inventoried . Thes e
resources are to be managed so as to preserve their original character unles s
the plan process identifies conflicting uses for them, In that case, con sequences of the conflicting uses shall be identified and programs develope d
-23
to protect the natural resources for future generations . The guidelines fo r
Goal 5 make clear that potential reservoir sites are to be protected agains t
irreversible loss to that purpose .
Goal 6 : Is directed to maintaining water quality and directs tha t
discharges not be planned which in the long range will exceed the "carryin g
capacity" of the stream . The obvious underlying requirement for this is tha t
we know in the long range what the base flow, or minimum flow, of a stream i s
to be .
Goal 7 : Directs that developments not be planned or located i n
known areas of natural disaster or hazard without appropriate safeguards .
Plans must be based on an inventory of known hazard areas, including strea m
flooding, and high water table .
Goal 11 : Requires that there be long range plans for delivery o f
public services - such as water - consonant with the planned growth for th e
area . This includes, as a first step, a realistic inventory and evaluatio n
of present and future sources of supply .
Goal 16 : Includes an implementation requirement which asks tha t
the Water Policy Review Board, assisted by Federal and State agencies ,
consider establishing minimum fresh water flow rates and standards such tha t
uses of our estuaries, including navigation, fish and wildlife characteristic s
(which would include wetland productivity) and recreation, will be maintained .
Goal 17 : Speaks to planning for coastal shorelands so as to reduc e
adverse effects on water quality, such as sedimentation, and to reduce hydro logic hazard to shoreland developments . This goal emphasizes maintenance o f
riparian vegetation, and the importance of retaining shore areas which ar e
appropriate for water dependent uses such as docks, marinas, or fisher y
activities .
Goal 18 : Beaches and dunes, includes an implementation requiremen t
on local, state , - and federal plans, to protect groundwater from drawdown whic h
would lead to loss of stabilizing vegetation, loss of water quality, or intrusion of salt water into water supplies .
From this list, which is by no means exhaustive, it is clear that planning fo r
water is intimately tied to planning for terra firma .
CURRENT PROBLEM S
As comprehensive plans are completed and adopted they are submitte d
to LCDC for acknowledgement review - that is, for measurement against the goals .
All agencies are notified as is the public, and there is a 45 day review perio d
for comments or objections . This is an important review, for once the plan i s
acknowledged, state agencies and all others are not to take actions inconsistent with the plan . At this point about 55 of 277 plans have been acknowledged . A number of water related problem areas are obvious in review o f
these plans :
24
1. Municipal water' s .upg .ily . Most plans have some- discussion a t
1!east in the. inventory section regarding sufficiency and qualdty and location
of water, whether ground or surface . In planning for public facilities, citie s
project an expanded water system but often lack any discussion or factual bas e
regarding the sufficiency of future' supplies for expansion, This c.a.n . trr•i r
into question the community's growth assumptions and goals .
One example would be the plan• for the city of StanfteYd, which identifies its dependence on groundwater, identifies decline of city well levels an d
recognizes the possibility of becoming a critical groundwater area . Policies.
express the city's willingness to participate in a regional system but th e
feasibility of such a system is not known . Stanfield has nonetheless planne d
for considerable industrial, commercial, and residential growth without assessing the impact of that growth on declining groundwater supplies, or providin g
policies which limit or control and contain ' growth until a regional wate r
system or some other solution is identified .
The city is awaiting detailed information from a current groundwate r
study now being conducted by the Department of Water Resources . LCDC has aske d
that the plan have policies committing the city to any changes necessitated b y
the groundwater information when it is available . Such changes might b e
extensive, even to modification of their growth plans . Second, Stanfield need s
planning policies to keep growth compact until that study and necessary pla n
changes are complete so that the city is not precommttted to a growth patter n
which cannot be efficiently served .
A second example is from the city of Sheridan, which identifie s
severe water shortages during low water seasons, and projects development o f
considerably expanded supplies from several sources, including an earl y
municipal reservation . No data is given regarding the adequacy of thes e
sources .
In sum, our cities need better information on the actual avail ability of water from various sources in order to plan with reality .
2. County plans may include information on the importance of in stream flows, but generally do not include policies relating to in-stream flo v
protection - seemingly leaving this area to "state water resource planning" .
Yet these same plans and some city plans depend heavily on continued in-strea m
flows for their economic planning, recreational resource, water pollutio n
control, etc .
A community which depends on fishery income or income from wate r
oriented recreation will gain by explicit recognition of that fact and b y
drawing concerns about the essential in-stream or in-lake water supply an d
quality directly into its planning discussions and documents . Such a communty can then influence management of its basic economic resource by state o r
federal agency plans and policies . Local interests in water'quality standards ,
or minimum flows, or various storage potentials must be a part of state agenc y
planning, but cannot be if they have not been articulated .
There is a critical need to increase understanding bf the extent of a
community's dependence on in-stream flows and that community's responsibility t o
participate in establishment of state policies'to protect those flows .
:25
3. A third area where conflicts are increasingly apparent is i n
relation to watershed protection . Many small cities have watersheds outsid e
of their urban planning area and are concerned to protect those watershed s
from influences which would degrade water quality or quantity . Gilliam County
recognized that the city of Condon takes its water from five wells outside th e
city and has included in its plan a policy to restrict land use in the vicinit y
of those wells to protect the water supply . The city of Cannon Beach has a
plan policy which purports to influence actions on the land around the city
owned watershed . This policy is non-binding since it has not been jointl y
adopted by the county, but our department has pointed out the county's responsibility to deal with the city ' s valid concerns as the county draws up it s
plan for that area .
We can see that as county plans are completed there will be increasing focus on conflicts between cities concerned for their water quality an d
county plans for watershed areas . These conflicts are sure to involve stat e
agencies, in particular the Department of Forestry .
4. Finally, as we review plans we become ever more acutely awar e
of the importance of state agency participation in plan development and review .
Our staff can in no way provide the technical expertise, background and dat a
to identify actual gaps in plan inventory information or to evaluate technica l
questions presented by the communities . Likewise, it is apparent that far mor e
help is needed at the local level in sorting through the technical data in basi n
plans and other documents in order to arrive at realistic and acceptable policies .
This need will continue beyond acknowledgement of all plans, since new data wil l
be generated, needs change, and state policies change .
On the positive side, plans are generally dealing well with flood plain policies ; county plans are identifying potential reservoir sites ; an d
inventory documents are showing greatly increased awareness and concern fo r
water resources in general .
Also on the positive side, the Water Resources Department ha s
instituted a good method for assuring that issuance of water rights or permit s
will not be done in contravention of the goals or acknowledged plans . Thre e
steps have been taken . The permit application identifies the need for a n
applicant to be sure his proposed use meets the plan . The weekly listing o f
applications to the Water Resources Department will be given wider circulation ,
including all county planners . Finally, if the Director of the Water Resource s
Department receives any allegations of goal or plan violations, he will refe r
the application to the Water Policy Review Board for a decision under ORS 537 .170 .
(This statute provides that when the Director has cause to believe an applicatio n
may not be in the public interest he may refer the application to the Board . )
There will probably not be many such applications, but it is importan t
to have this mechanism in place since land use plans are more detailed than th e
basin plans under which beneficial uses are now defined, and because the plan s
may identify further considerations which need to be part of the water allocation decision but which have not been incorporated into basin plans, many o f
which are sorely outdated .
26
FUTURE ISSUE S
What water-land planning problems face Oregon in the coming month s
and years?
1. Flood control project planning must in the future bette r
recognize present zoning and damage control ordinances for the flood-threatene d
areas and figure benefits from protection only of allowed uses - not fo r
projected "highest and best use" in terms of full development to urban densities .
2. The "208" program will become less a catchword and more a par t
of the concern of every agency . In particular there must be attention t o
evaluation of in-stream flows for water quality, then coordinated policy actio n
on the part of the Water Policy Review Board (WPRB) and the Department o f
Environmental Quality (DEQ) to tie the quality/quantity issues together .
focus .
estuaries .
3 . Maintenance of in-stream flows for all purposes will be a majo r
4.
Eventually there will be attention to minimum flows int o
5. There will be a significant number of small/medium storag e
projects proposed and carried through across the state . As these are planned ,
we must reorient our thinking to recognize that the identification of need an d
options for technically satisfactory sites are water resource issues, but tha t
the choice between alternative sites is one which encompasses the entire lan d
use planning process and should be intimately tied to it, from the citize n
involvement program through final choice made at the county and state level s
considering all planning goals . Water resource planning can no longer mak e
those choices independently .
6. The non-federal cost sharing initiative may be a boost t o
greater state involvement in project planning and a broader approach to th e
local involvement in such planning . That is, it may be another spur to tyin g
water planning to the overall coordinated land use planning because only wit h
that tie can a strong case for state funding and support be made .
7.
Finally and most important - basin updates :
*
are desparately neede d
* will provide new basic data-as on ground water, which wil l
be incorporated into land use plan in the update proces s
* will utilize population projections available from th e
comprehensive plans and uniform 208 population disaggregation s
(now underway) . All jurisdictions and agencies will be usin g
these projections .
* will need to recognize agricultural lands identified in th e
county plans as irrigable lands, since it makes no sense to coun t
as irrigable those lands already committed to development . Th e
recent south coast update appears to continue to rely on overal l
27
assessment of physically irrigable lands without regard for actua l
land use, with the result that calculations of need for water ar e
thrown into questio n
* will increasingly need to focus on ground water managemen t
as communities wrestle with increased demands and accelerate d
conflicts . The critical areas designation, coming after the proble m
is acute, is not an adequate tool for Planning : we need allocatio n
of ground water every bit as much as of surface water .
* Last, but not least, new policies on "beneficial use" wil l
have to be more than lists of uses . They can be better refined ,
utilizing land use plans as a guide for beneficial uses and goin g
on to questions of quantification and reservation in the light o f
diminishing supplies .
28
APPENDIXA
LCDC Goal s
1.
Citizen Involvemen t
2.
Land Use Plannin g
3.
Agricultural Land s
4.
Forest Land s
5.
Open Spaces, Scenic and Historic Areas, and Natural Resource s
6.
Air, Water, and Land Resources Qualit y
7.
Areas Subject to Natural Disasters and Hazard s
8.
Recreational Need s
9.
Economy of the Stat e
10. Housin g
11. Public Facilities and Service s
12. Transportatio n
13. Energy Conservatio n
14. Urbanizatio n
15. Willamette River Greenwa y
16. Estuarine Resource s
17. Coastal Shoreland s
18. Beaches and Dune s
19. Ocean Resources
29
Presented November 29, 1979 by LANE R . HARPER, Bonneville Pawer Administration ,
Portland, Oregon .
Ete
aad Z~/arrn Place/ ix
eehemgea Revel
p lanning for development of the Columbia River probably starte d
with Lewis and Clark . They recorded the numerous Columbi a
River falls, rapids, and other hazards to navigation on their detailed map s
175 years ago . The Columbia River was, at that time and for many years there after, the major natural resource of the region and served as the main stree t
of the Pacific Northwest .
President Theodore Roosevelt set forth the principles of rive r
basin planning and development early in this century . In messages, to Congres s
he stated the case for developing each river as a unit, thus giving us th e
principle of unified development, the concept of multiple purpose planning ,
and the use of upstream storage to capture the flood waters and control an d
regulate the release of water for optimum benefits . Many of his quotation s
on these principles have become classics . He said :
"Every stream should be used to its utmost . No stream can be s o
used unless such use is planned in advance . When such plans ar e
made, we shall find that, instead of interfering, one use ca n
often be made to assist another . Every river system, from-it s
headwaters in the forest to its mouth on the coast, is a singl e
unit and should be treated as such . "
In transmitting the report of th e
Inland Waterways Commissio n
February 26, 190 8
With respect to the arid and semi-arid West, he saw the opportunity to make good water out of bad water by putting the floods to work . I n
urging Con g ress to launch the reclamation program, he said :
"The forests alone cannot, however, fully regulate and conserv e
the waters of the arid region . Great storage works are neces sary to equalize the flow of streams and to save the flood waters . "
Message, December 3, 190 1
31
These quotations come from much longer messages setting fort h
the three basic principles of (1) unified river development, (2) multipl e
purpose development, and (3) optimum development by means of upstream storag e
reservoirs . These are the principles which another Roosevelt, Franklin Delano ,
put to work in 1933 in the Tennessee Valley and throughout the West, includin g
the Columbia River Basin .
Major John S . Butler was one of the first people who calle d
attention to the need for upstream storage on the Columbia River . He wa s
Seattle District Engineer of the U .S . Army Corps of Engineers in 1932 an d
wrote much of the Army's first 308 Report on developing the Columbia Rive r
which was published at that time . For example, he recommended buildin g
Hungry Horse Dam, which Congress authorized for construction by the Water an d
Power Resources Service (previously the Bureau of Reclamation) of the U . S .
Department of the Interior, in 1944 and is today one of our most valuabl e
storage projects in the Pacific Northwest . The value of the Hungry Horse Da m
in relation to the hydroelectric generation system in the Columbia River Basi n
is discussed in more detail later in this paper .
An outstanding expert on the value of upstream storage in th e
region was Ben Torpin who was Project Engineer, Corps of Engineers, on th e
Bonneville Dam Project from 1933 to 1936 . He later became Chief of Engineering ,
North Pacific Division, from 1942 until his retirement in 1950 . In 1945 h e
prepared a 95-page report in which he said :
"Storage is the key to complete development of the Columbi a
River . . . without storage only about 20 percent of a hydro electric power site's potential firm capability can be realize d
. . . 80 percent of the potential power depends on storage . . .
"When properly planned, conflict seldom arises between the use o f
storage for power and the use of storage for these various purposes ;
rather, they complement and benefit each other . "
He repeatedly pointed out that upstream storage opened the doo r
for optimum, balanced, multiple purpose development . Through his work th e
Corps found that the same upstream storage project could reduce floods ; provid e
a full reservoir for summer recreation ; increase minimum flow for power, navigation, and fish ; and increase water availability for irrigation . He summarize d
this point by saying :
"The fundamental basis for the application of the multiple us e
principle is storage_ . "
In part as a result of Ben Torpin's studies, the Corps o f
Engineers in 1944 asked the International Joint Commission to study the Libb y
Dam opportunity . The Libby Dam reference of 1944 resulted in 15 years o f
studies and 5 years of negotiations which led to the Columbia River Treaty o f
1964 between the United States and Canada . Since 1964, the Treaty led to th e
completion of three storage dams in Canada and our Libby Dam which togethe r
gave us about half of the 47 .7 million acre-feet of upstream storage now avail able in the Columbia watershed . Libby Dam, incidentally, solved the local floo d
control problem of the Bonners Ferry, Idaho, area, and also helped to solve th e
flood problem along the Columbia River's main channel .
32
The Treaty with Canada underlines an important fact . Th e
Columbia is an international river . About 43 percent of the summer peak flo w
comes from Canada . Under the Treaty, Canada can, if it chooses, divert th e
Kootenay River into Columbia Lake in the early 1980's . The Treaty has termination dates applying to certain rights spread over the next 75 years . Thi s
means that Canada can make some changes that would affect the flow of wate r
in the United States .
Through the years hydroelectric development for commercial operation has taken place throughout the Pacific Northwest . However, there is no t
enough hydroelectric energy to go around . In fact, only about 80 percent o f
the region's needs are met from hydroelectric generation ; the rest is met by
thermal-electric generation . The privately owned utilities have 88 plants ,
publicly owned utilities have 39, and Federal agencies have built 30 plants ,
for a total of 157 plants with a total of about 28 .3 million kilowatts . Ther e
is a total of 31 thermal-electric generating plants in the region, 18 privatel y
owned and 13 publicly owned utilities, for a total of about 7 .3 million kilo watts . See Table 1 . Information on the amount of generating capacity is als o
shown by states in Table 2 .
COORDINATION WITH OTHER S
Bonneville Power Administration (BPA) sells electricity from th e
30 Federal hydroelectric plants built and operated by the Corps of Engineer s
Service (previously the Bureau of Reclamation) in the Pacific Northwest .
These are all on the Columbia River or its major tributaries . Bonneville make s
the benefits from water power available to the public ; and, in that sense, BP A
is a bridge between the people and their river . In making this accomplishment ,
Bonneville has been heavily involved in coordination with others . This involve s
arrangements for transmission line rights-of-way across Indian reservations, th e
Columbia River Treaty with Canada, and the Pacific Northwest-Pacific Southwes t
Interties which involve the entire West Coast .
While BPA primarily transmits and markets electric power ,
Bonneville is also well aware of the many other water uses such as navigation ,
flood control, irrigation, pollution control, fish and wildlife, wild an d
scenic rivers, wilderness and primitive areas, and recreation . The Bonnevill e
customers each year pay in millions of dollars that go into some of these othe r
purposes . BPA contributes to the fisheries research and study program, t o
environmental research, and in time will provide major payments to subsidiz e
irrigation . The use of water for virtually all of these purposes has priorit y
ahead of power generation, and some of these priorities reduce the powe r
production .
The Columbia River has a number of characteristics which affec t
its ability to produce electric power and serve other uses . First, the rive r
is steep, dropping 2 feet per mile compared to the slow moving Mississipp i
which drops only 6 inches per mile . Second, the river flows in a channel o f
solid rock suitable for dam foundations . Third, the river is virtually fre e
of silt, assuring long reservoir life of hundreds of years . Fourth, th e
Columbia discharges 73 percent of its natural flow in the six summer month s
and only 27 percent in the six winter months, when electric energy is mos t
33
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TABLE 2
PACIFIC NORTHWEST STATE S
EXISTINGGENERATING CAPACITY
January 31, 198 0
State
Hydro
I
Thermal
Total
WASHINGTON 1
Federal
Public
Private
OREGON 1
13,420,830
6,301,741
893,860
0
1,341,400
1,280,900
13,420,83 0
7,643,141
2,174,76 0
3,189,700
111,615
861,823
0
51,200
1,750,000
3,189,700
162,81 5
2,611,82 3
611,250
10 :350
1,566,445
0
4,740
56,825
611,25 0
15,09 0
1,623,270
705,000
0
607,670
0
0
756,944
705,000
0
1,364,61 4
28,280,284
5,242,009
33,522,29 3
17,926,780
6,423,706
3,929,798
0
1,397,340
3,844,669
17,926,78 0
7,821,04 6
7,774,467
/
Federal
Public
Private
IDAHO
Federal
Public
Private
MONTANA
Federal
Public
Private
TOTAL
Federal
Public
Private
1/
.
On border - each state has half of the total generation .
2,/ Only on the west slope of the Continental Divide except Colstrip i s
counted .
BPA - Branch of Power Resource s
February 14, 198 0
35
needed . It is this last ratio of 73 to 27 that the engineers are changing b y
means of upstream storage . Finally, as a fifth characteristic, the Columbi a
historically had peak flows as high as 1,240,000 cubic feet per second measure d
at The Dalles in June 1894 .
That great flood reached the second floor of many buildings i n
downtown Portland, Oregon . At the other extreme, the Columbia had a low flo w
in January 1937 of only 35,000 cubic feet per second . The ratio of the highes t
to the lowest flow is 35 to 1 . It has been one of the goals of upstream storag e
to reduce that ratio from 35 to 1 to the present 5 to 1 . Storage projects hav e
cut the maximum flood down to about 600,000 cfs and have brought up the low flo w
to more than 100,000 cfs .
For comparison purposes, the St . Lawrence River is one of th e
steadiest flowing rivers in the world . The peak flow has never been mor e
than double the minimum flow . The steady flow results from the upstrea m
storage provided naturally by the five Great Lakes . The Columbia will neve r
reach a 2 to 1 ratio, but there is still plenty of opportunity for mor e
upstream storage to improve the existing ratio .
In examining the existing development of the Columbia River an d
its major tributaries, Table 3 gives the nameplate ratings of the hydroelectri c
power storage projects . The operating utilities and agencies are adding additional units to some of the existing projects . Plans for expanding some o f
the other projects are underway . When all of the projects, existing an d
planned, are completed, the system will release very little water withou t
generating electricity from it .
HUNGRY HORSE DAM
Figure 1 is a profile chart which shows the relationship of th e
existing projects to one another by their elevations in feet above sea level .
The vacant spaces between some existing dams are potential damsites . Ther e
one can see how Hungry Horse Dam is a key project in the system . Figure 2 i s
an illustration of the value of Hungry Horse Project, through the developmen t
of the downstream hydroelectric benefits from it .
The average runoff of the Columbia River is 180 million acre-fee t
at the mouth . Table 4 shows that the amount of usable storage developed i n
the Columbia Basin is about 47 .7 million acre-feet . This stores about 2 6
percent of the runoff . Storing more of the runoff can provide a little additional energy for meeting base loads . It would give more flexibility in operating the storage more efficiently . However, non-power uses of the water ,
such as for fish, flood control, and recreation, may utilize the extra storag e
in more effectively meeting their requirements .
The Pacific Northwest River Basins Commission recently issued th e
final draft of its three-volume report called "Water--Today and Tomorrow . "
This report addresses the need for more upstream storage especially in respons e
to the pressure from the fishery people for higher minimum flow, and pressur e
by the irrigators for more water for irrigation . The report lists more tha n
26 million acre-feet of potential storage reservoir sites available upstrea m
36
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from The Dalles . The report a:ls,o identifies, another 20 million acre-feet o f
si orag e , s>i ,tes' i n restricted areas' which-are now • i n wild and scenic, recreation* ,
or proposed areas . These two lists total about 47 million acrefeet .of potemti .al storage . which compares to the 47 .7 million acre-feet mentioned earlier i n
existing storage projects including those in Canada .
Malcolm Karr, as Director of Planning of the River Basin s
Commission in a recent speech sa-i .d,: .
"Among the recognized means to increase water availability o n
a timely basis, only that of• additional" story Aeve-lopment ha s
the potential to support_ major increases in the level--of wate r
use ."
May, a a,„ 1'979rt
The Corps of Engineers in its 1948 and 1958 review of the 30 8
Reports on the-Columbia called attention to the need for storage . not only fo r
re'gion!aT flood' control but also for- local flood' control'oar parti cuTar tri'bu taries . Since 1958, the Treaty projects have completed bring'tng under contro l
the* fTo©.ds on'" the main stem- of tWe Columbia . There remai n , the flood risks o n
the tributaries -- risks which now prevent or discourage other development an d
use . The need for flood control today is on the tributaries : the Methow ,
Simi l kameen ., Okanogan, Clark Fork-, . FTathea-d, J }lii Day, and many others .
In each case, the local improvement from upstream, sltor-age wil l
incide.nt~ a~ y. provide both at site and' downstream power be !fi.its., and variou s
other benefits which differ from one stream to another .
There has been some misunderstanding,about the degree .or completeness of the development of the Columbia River . Development on the. main stem is nearly, finished, bud, on many tributaries we, hi ve not- yet started .. Th e
Tennessee Valley Authority completed the dams on the main stem of tfe Tennessee River by about 1950 and then shifted gears- to what . became . known as .
TAD, Tributary Area-Development . Electric power-may-or m a not . be an importan t
purpose at the projects needed on the key tributaries ,
More likely, the main interest will be , on flood control, wate r
for irrigation, and other purposes with particular emphasis on all forms o f
water-oriented recreation and on water quality . Regardless of the purpos e
of the tributary projects, the key to development is storage . I- shoul d
especially mention one . lesson from TVA expe.rience . . In . the. TVA area, th e . peopl e
living in the individual tributary basins organized themselves as an advocac y
association which then steered the planning for their subregion or area, pu t
forward the program of development, and then provided the political support .
The result is to move away from regional centralization to decentralizatio n
to: the local area .
In summary, I submit that while the main stem of the Columbia i s
almost fully developed, there is still storage space on the tributaries, whic h
is useful for many purposes . Therefore, the developmental' future of th e
Columbia River is on , its tributaries . -
41!