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Panels Critique Water Right Acquisition Proposals

by Barry Espenson
Columbia Basin Bulletin - September 1, 2000

A pair of proposals designed to bring relief to fish populations by boosting tributary water flows were the focus of two "water marketing" panels assembled Wednesday by the Northwest Power Planning Council.

Both the Council and National Marine Fisheries Service have floated the idea recently of establishing funds that would allow quick action when opportunities presented themselves to purchase or lease water rights, and leave that water in-river, or encourage water conservation measures.

The NMFS, in a draft hydrosystem biological opinion released in August, suggests creation of a non-profit "water brokerage" to acquire water to augment in-stream flows in priority subbasins.

The Council, in a draft amendment to its fish and wildlife program, proposes creating an independent fund that would allow expedited action to acquire interests in land and water rights.

"Often the opportunity for an important acquisition exists only for a short period of time, and often there is a substantial price advantage in being able to quickly close the transaction," reads the NWPPC draft amendment.

"The time and uncertainty of the current project selection process, and the procedural constraints on real estate acquisition by the federal agencies have made these transactions relatively difficult and more costly than necessary," according to the proposed amendment

The NMFS sees solving tributary habitat problems as an important part of its Endangered Species Act recovery strategy.

There would be an "immediate biological effect if you get water in the streams and there's few (recovery measures) that you can say that of," said John Volkman, NMFS senior policy adviser. There is less certainty of the benefit from other measures, such as adjustments to hatchery practices, and benefits from other actions would mostly be realized over time.

Both draft documents put a heavy emphasis on habitat improvement measures that are deemed critical to salmon recovery regardless of what is done to improve salmon survival through the Basin's hydropower system, Volkman said.

A federal caucus recovery strategy released in tandem with the BiOp points to priority subbasins "where we think you could make some real progress quickly" to improve conditions for listed species, Volkman said. Improving the quality and quantity of tributary flows is a part of that plan.

The NMFS proposal envisions a five-year pilot project funded at a rate of from $5 million to $10 million per year by the Bonneville Power Administration.

"We think it has to be sizeable enough to attract interest" from willing sellers of water rights, Volkman said. The entity created to administer the fund would develop criteria for the type of water that is needed, and set priorities for where the water is needed the most, then issue a request for bids.

The competitive process would allow the "brokerage" to choose from "anyone that's willing to give you the best price on the best terms," Volkman said. He described the concept as a pilot project that needs to be developed with clear objectives and methods for monitoring success and run by an oversight board. It also must have that flexibility that will allow quick action to take advantage of limited opportunities.

"I think we could easily suffocate this experiment in process," he said.

The NMFS and NWPPC see their separate but similar proposals as a means of collaborating in the basin's overall recovery effort.

"Our hope is that the (proposed Council) fund may be the vehicle for achieving what NMFS wants" in its BiOp, said Bob Lohn, NWPPC Fish and Wildlife Division director.

Volkman and others participating in Wednesday's water market panel discussions stressed that the proposals to purchase land and water from willing sellers seem sound, conceptually. But with a myriad of water rights and real estate regulations from four different states, implementation will be a difficult task.

Joining Volkman on the water marketing "concepts" panel were Zach Willey of Environmental Defense, Inc., and Andrew Purkey and Patty McCleary, executive directors, respectively, for the Oregon and Washington water trusts.

Both Purkey and McCleary said they favored the idea of establishing such a land and water right acquisition fund. Both trusts are non-profit organizations already engaged in such activities and are guided by broad-based boards of directors that represent tribal, state, federal and local government, special interest groups and industry/agriculture and other interests.

Purkey said his organization, established in 1993, has received a mixed reaction from individuals, counties and communities. Some embrace the principal of enhancing riverine habitat. Some say " 'we just don't want to see water come off the land,' " Purkey said, and locked up from traditional uses such as agricultural irrigation.

"Sometimes…. it is a very carefully thought through decision" by the affected families and communities of families, McCleary said. Those people are concerned not only about their own future but the effect of removing or diminishing that production and the rippling effect on related business, the local economy and its tax base.

McCleary also stressed the need for flexibility in such an acquisition fund. Some negotiations are drawn out, but the entity must have the ability to seize suitable opportunities.

Both Purkey and McCleary said that at the beginning their efforts were mostly limited because of an inability to find willing sellers where enhanced flows might best improve fish habitat conditions. With experience at the endeavor, and developing prospects, both organizations are now limited most by the availability of capital.

Both the Council and NMFS proposals envision taking advantage of established expertise, such as that represented by the water trusts.

Council member Tom Karier of Washington said that the brokers, such as the trusts, "are out there," as are the sellers. He sees the fund serving the role more of a banker "to make sure (the purchases) are good investments."

Council member Eric Bloch of Oregon agreed, saying that the Council did not want to create a competitor to the trusts, but rather provide the funding and oversight to ensure that any funds are spent cost effectively and bring benefits.

"If and when we create this, there will be some strings attached," Bloch said. Expenditures will be guided, as will the fish and wildlife program, by principles and strategies outlined during the NWPPC program amendment process.

A second panel was called by the NWPPC to offer state perspectives on the water marketing proposal. Included were Karl Dreher, Idaho Water Resources Department director; Norm Semanko of the Idaho Water Users Association, Jim Tucker of the Idaho Power Company, and Ken Slattery of the Washington Department of Ecology.

Dreher and Semanko said their state eyed the proposal warily. The state has been pressed in recent years, at the behest of NMFS 1995 BiOp, to provide 427,000 acre feet of water annually to augment mainstem Snake and Columbia river flows.

"Idaho does not consider flow for the sake of flow as a beneficial use" of the state's water, as its laws prescribe, Dreher said. He insisted that NMFS calculation of salmon survival benefits produced by augmentation is flawed.

When asked pointedly by Montana Council member John Etchart whether he was "for or against this notion," Dreher said that the state would likely be supportive of measures with proven benefits to fish, particularly if they were directed at tributary flows.

He insisted, however, that "the controversy is not as simple as saying you want the water to stay on the land." The effects of water rights sales can affect other water rights users, agricultural production and the economy as a whole.

Despite the envisioned broad-based composition of proposed oversight boards, Dreher questioned the notion of the federal government setting the standards for what is needed to improve tributary habitat conditions. Striking a balance between fish and wildlife and local landowners' needs would be better done at the local level, he said.

"We can't forget that the demand is not only for in-stream flows and environmental uses," said Semanko. Irrigation and other established uses of the water must be part of the equation.

He and Dreher pointed out that Idaho has a long-established "water bank" system through which farmers can bank unneeded water that they hold rights to and allow it to be rented for other "beneficial uses.

"Some of you in downstream states have benefited," Dreher said. The federal Bureau of Reclamation relies on renting that water to provide the augmentation flows outlined in the 1995 BiOp, Semanko said.

Link information:
Federal Caucus:

by Barry Espenson
Panels Critique Water Right Acquisition Proposals
Columbia Basin Bulletin, September 1, 2000

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