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SESSION 6

Whose Water Is It? How Do We Regulate

This Resource?

Whiskey’s for drinkin’

and water’s for fightin’. Attributed to Mark Twain

SESSION GOALS

• To appreciate the complexity of the issues involved in allocating and regulating

public water resources. • To learn how legal systems, based on the doctrines of prior appropriation and

riparian water rights, have evolved to manage water between competing interests. • To better understand the various kinds of water rights governed by law.

REFLECTION QUESTION

Should water be declared a human right

or is it a commodity to be bought and sold on the open market?

Reminder to Facilitator: The Reflection Question moves quickly. Each participant gives a brief answer without questions or comments from others.

Palouse Farm by WHWise

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SESSION INTRODUCTION If there weren’t conflicts among competing users of water, there would be no need for water laws. The previous sessions illustrated how competing demands have long been inherent in the management of water. In this session we survey the complex body of laws and policies that have developed in response to competing water management demands. The readings reveal how federal, state, and local governments all play roles in addressing issues of water quality, quantity, and allocation. The concept of water rights lies squarely at the foundation of water usage in this country. At the same time, disparate governance and allocation systems prevail in different sections of the country. Also, federal laws, as well as Native American treaties, may weigh in to interpretations of rights. On a broader scale, the issues of privatization and sale of water are yet to be legally determined. A water right, as defined in the sidebar in the opening article, is a property interest in the use of water. However, the meaning of this definition is hardly straightforward, as the article “Water Appropriation Systems” demonstrates. The author summarizes the background on two concepts essential to understanding American water law: the doctrines of riparian rights and prior appropriation, originating in the eastern and western sections (respectively) of the country. It is perhaps not surprising that the inherent conflict between these principles is linked to rather extreme differences in assumptions on water abundance. The next piece follows up with a broad overview of the development of watershed planning, federal and Western states’ policies and laws, and some of the agencies responsible for implementing them. The author distinguishes between the federal responsibility for protecting water quality and the state’s primary jurisdiction over water allocations. Also included are discussions on how the federal Clean Water and Endangered Species acts affect water issues in the Columbia Basin and the unique position of Native American tribes as sovereign governments within the U.S. Gaining some historical perspective on the complexities of water law helps to shed light on the forces that bear on contemporary water rights issues in the PNW. “10 Water Laws of the West” is a tongue-in-cheek view on how Western water policies have played out “on the ground,” so to speak, and underscores how even well-considered policies can have unforeseen consequences. And then we once again return to global considerations. “Whose Water: The Battle for Water” invites us to recognize that the fundamental human right to water is increasingly challenged by powerful corporate efforts to privatize and reap profits from indigenous water resources, irrespective of local needs. While the final box covers the 2010 declaration by the United Nations that access to clean water and sanitation is a human right. The United States along with Canada, the UK, Australia and New Zealand abstained from the vote while China, India, Russia, France, Germany and Brazil voted for water as a human right. The potential ramifications between water as a right and corporate interests raise global concerns.

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Water Appropriation Systems United States Department of the Interior, Bureau of Land Management, National Science and Technology Center, November 2010. This article appeared on www.blm.gov/nstc.

Riparian: The doctrine of riparian rights in the United States has its basis in case law which first involved Tyler v. Wilkinson in 1827. This case arose out of a dispute between mill owners over the right to use the flow of a river for mill power. The opinion in the case stated that all riparians had equal rights to the water in the river and that an upper proprietor could not diminish the quantity that would naturally flow to the lower proprietor. However, the case opinion also recognized that such an absolute right would not be practical and held that an upper proprietor could make "reasonable use" of the water, including consumptive withdrawals. Riparian water rights, therefore, occur as a result of landownership. A landowner who owns land that physically touches a river, stream, pond, or lake has an equal right to the use of water from that source. This water right, however, is only a usufructuary right and not a property right in the water.

The water may be used as it passes through the property of the land owner, but it cannot be unreasonably detained or diverted, and it must be returned to the stream from which it was obtained. The use of riparian water rights is generally regulated by "reasonable use." Reasonable use allows for the consumptive use of water, but what actually constitutes reasonable use has varied widely from state to state and continues to evolve. Only certain waters are subject to riparian rights. Riparian rights only attach to water in watercourses and not to diffuse surface waters. Diffuse waters are waters that are spread over the surface, where as a watercourse has a definite natural channel and a bed with banks. Diffuse waters are generally storm or flood drainage, and these do not constitute riparian rights. Riparian water rights cannot be lost through non-use and are indefinite in duration. Therefore, a riparian landowner does not lose their riparian right by not putting the water to use. However, the courts tend to provide greater protection for existing uses, than for potential future uses. Riparian rights can, however, be lost through prescription. Prescription is a process of involuntary transfer from one party to another. Under prescription, a party making open use of water for the proper time period (usually 20 years) gains title to the water right superior to that of the original holder.

What Is A Water Right? A water right is referred to as a usufructuary or use right -- a property interest in the use of water. Many people believe that “It’s my water, it’s my water right, and I can do what I want with it. It’s a property right.“ This is a commonly held belief, which is only partially true. In considering a water right as a property right, it is helpful to compare it to the variety of property rights to the land. The most common type of property right to land is ownership of the land, but there is also a right to temporarily occupy the land (a lease), a right to cross the land (an easement), or a right to use the land in a defined way (a license). All of these are types of property rights. The fact that a water right is a property right does not mean ownership of the molecules of water; rather it means a person has the right to use the water within the scope and limits of the water right. Landowner’s Guide to Washington Water Rights, Washington Rivers Conservancy Handbook 2009

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Riparian water rights are generally considered "part and parcel" to the land and are included if the property is sold. The law, in most cases, forbids transfers of riparian rights for use on non-riparian lands. This rule, however, has been amended in some instances to allow non-riparians to use the water so long as the use is "reasonable" with regards to other riparians. The general characteristics of riparian rights can be summarized as follows:

• Riparian rights are of equal priority. • Unless adjudicated, the right is not quantified, rather it extends to the amount of water

which can be reasonably and beneficially used on the riparian parcel. • Riparian rights are correlative. During times of water shortage, the riparian proprietors

share the shortage. • Water may be used only upon that portion of the riparian parcel which is within the

watershed of the water source. • The riparian right does not extend to seasonal storage of water. • The riparian right is part of the riparian land and cannot be transferred for use on other

lands. • The riparian rights remains with the land when riparian lands are sold. • When riparian lands are subdivided, parcels which are severed from the adjacent water

source lose their riparian rights unless the rights are reserved. • A riparian right is not lost by non-use.

Prior Appropriation: The prior appropriation doctrine, or "first in time - first in right", developed in the western United States in response to the scarcity of water in the region. The doctrine evolved during the California gold rush when miners in California needed to divert water from the stream to locations where it was needed to process ore. Customs and principles relating to water diversion developed in the mining camps, and disputes were resolved by simple priority rule. According to the rules of prior appropriation, the right to the full volume of water "related back" or had the priority date as of the time of first diverting the water and putting it to beneficial use. In other words, those with earliest priority dates have the right to the use of that amount of water over others with later priority dates. Unlike a riparian right, an appropriative right exists without regard to the relationship between the land and water. An appropriative right is generally based upon physical control and beneficial use of the water. These rights are entitlements to a specific amount of water, for a specified use, at a specific location with a definite date of priority. An appropriative right depends upon continued use of the water and may be lost through non-use. Unlike riparian rights, these rights can generally be sold or transferred, and long-term storage is not only permissible but common. There are four essential elements of the prior appropriation doctrine: Intent, Diversion, Beneficial Use, and Priority. In all states with the prior appropriation doctrine, the acquisition of water requires that the appropriator demonstrate an intent to appropriate the water, divert the water, and apply it to

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beneficial use. Historically, intent was indicated by on-the-ground acts such as site surveys, land clearing, preparation of diversion points, and most importantly, posting of notice. Today, however, intent is generally indicated by the application for a permit. Another essential component of a prior appropriation water right is diversion. Historically, a physical diversion of water was required in order to acquire a water right. This requirement has diminished as states have implemented various instream flow programs. A point of diversion, however, is still an essential element of a consumptive use water right. Beneficial use is perhaps the most important characteristic in defining a prior appropriation water right. Beneficial use is used to determine whether a certain use of water will be recognized and protected by law against later appropriations. The justification for beneficial use criteria is to prevent waste. Since water is a scarce resource in the west, states must determine what uses of water are acceptable. Beneficial uses of water have been the subject of great debate, and each western state has an evolving system for evaluating what uses of water are considered "beneficial." The final essential feature of the prior appropriation doctrine is the priority of a water right. As described above, the first appropriator on a water source has the right to use all the water in the system necessary to fulfill his water right. A junior appropriator cannot use water to satisfy his water right if it will injure the senior appropriator. A senior appropriator may "place a call" on the river. A call requires that the institution which manages the water source shut down a junior diverter in order to satisfy the senior right. Senior appropriators, however, cannot change any component of the water right if it will injure a junior appropriator. Therefore, if a senior wants to change his place of use and this change will adversely affect a junior’s interest, the junior can stop the senior from changing the water right. Any change of a water right (time of use, place of use, purpose of use, point of diversion, etc.) cannot cause harm to another water user, regardless of priority. In western states, there are few restrictions on who can hold an appropriative water right. Therefore, both private and public entities hold rights. An appropriative right does not depend on land ownership, but some states do require that the water is appurtenant to the land on which it is used. In general, appropriative water rights are transferable property. There are, however, three major requirements which inhibit the transfer of an appropriative water right:

1. Rules prohibiting the severance of water right from the land on which the water is appurtenant to;

2. Showing that there will be no injury to other appropriators; and 3. Establishing the extent of the water right for transfer.

The traditional means of losing appropriative water rights are non-use or abandonment. Loss through abandonment is a consequence of the essential role that "use" plays in the definition of the right. The right does not come into existence without application of water to beneficial use and cannot continue to exist without the continuance of beneficial use. Non-use in itself, however, does not always constitute abandonment. A finding of abandonment often requires a determination of an intent to relinquish the water right. A statutorily specified period of non-use can, in most states, serve as proof of intent to abandon. In other words, an appropriative right can

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be lost through non-use when intent to abandon can be demonstrated, or when the water right has not been used for a specified number of years. Hybrid Doctrine: The hybrid doctrine recognizes both riparian and appropriative water rights. Generally, states have this duel system because riparian rights were historically recognized, but the state has changed to an appropriative system. Hybrid states have integrated riparian rights into the doctrine of prior appropriation by converting riparian rights to appropriative rights. Generally, states have allowed riparian land owners to claim a water right by a certain time and incorporate it into the state’s prior appropriation system. The riparian rights tend to be superior to the prior appropriative rights even if the water was not put to beneficial use until much later. Riparian rights are not recognized, however, if they are not claimed by a certain date (usually the date the state adopted the prior appropriation doctrine), or are not put to use within a certain number of years. States that have a hybrid system include California, Kansas, Nebraska, North and South Dakota, Oklahoma, Oregon, Texas, and Washington.

Why are there riparian laws and prior appropriation laws? Allocation of surface waters is dependent on state law. Three different allocation systems have developed in the United States. The first is the riparian doctrine, which developed in the water-abundant eastern United States. The (arid) western United States developed the system of prior appropriation. Finally, a handful of states adopted a hybrid system, which contains parts of both the prior appropriation and the riparian systems

Source: National Agricultural Law Center

www.nationalaglawcenter.org

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Western Water Law | Eastern Water Law Prior Appropriation Law Riparian Law

A map from 1916 of the United States showing the average annual rainfall distribution, keyed to show areas of rainfall ranging from less than 10 inches to areas of over 60 inches per year. This map shows the coastal and mountain effect on rainfall distribution in the Pacific Northwest and Gulf region. The map also clearly shows the ‘100th Meridian’ in the Great Plains, a line of longitude that generally marks the furthest reaches of moist Gulf air, and delineates the moist east and arid west.

Source: Maps ETC at etc.usf.edu/maps ource: www.epa.gov/owow/

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Tribes and Watersheds in Washington State By Jovana J. Brown, Evergreen Faculty emeritus, last updated Jan 22, 2008 Excerpted from Environmental Case Study on evergreen.edu/tribal/cases/collection/environmentalstudies Section I Introduction: Watersheds & Watershed Planning Indian tribes in the Pacific Northwest continue to work hard to implement their treaty rights and maintain their status as sovereign governments while participating in meaningful dialogue, and engaging pro-actively with their neighbors on issues of common interest. One of these important issues is watershed planning. The rivers and marine waters provided abundant resources for the original inhabitants of the land that is now Washington State. The native people of the area, particularly those in Western Washington of Coast Salish descent have always known that their survival depended on clean, fresh water. They lived in harmony with nature and thus protected their natural ecosystems, their watersheds, and subsequently their culture. The coastal and Columbia River tribes have always relied heavily on salmon for subsistence as well as a trading commodity. The native peoples would catch the salmon as the fish returned up the rivers to their natal streams, only harvesting what they needed so that most of the fish remained in the streams to swim further up-stream to spawn. This natural method of conservation ensured that the fish would return every year. Thus watersheds have been historically critical to the native people of the Pacific Northwest. A watershed is the area of land that drains to a larger stream, or to a lake, estuary, or to the ocean. A watershed may be very large and drain 250,000 square miles such as the Columbia River or it may be very small and drain an area such as the 250 square mile Skokomish River watershed which discharges into Hood Canal. The native people would utilize various parts of their watershed in their seasonal rounds of hunting, gathering, and harvesting salmon. Today, in the twenty-first century, the watersheds are not thought of as geographical and cultural units, but are thought of in terms of who owns the land that the rivers and streams flow through. Patterns of ownership are complex and do not often coincide with watersheds. In Washington State the higher elevations are often lands owned and managed by the federal government: national forests and national parks. Lower elevation lands with timber are either owned by private timber companies or are state lands managed for timber production. In the valleys are farms and ranches. At the mouths of rivers are urban areas, often so large that they are moving further and further up the watershed such as Seattle. Two centuries of white settlement brought profound changes to the lands and waters of the Pacific Northwest as well as to native cultures. Indigenous people did not know of land tenure or property boundaries. These were foreign concepts. The treaties signed by tribal representatives ceded certain territories, but allowed continued use of the ceded land for fishing, hunting and gathering. As white settlement continued the rivers and watersheds were transformed by the withdrawal of water for irrigation, by the building of dams for hydropower and flood control, by the harvesting of timber with the resulting severe impacts on forest cover, river riparian zones, and the quality of water in the streams and rivers. In addition, rivers have been impacted by the expansive growth of cities and ports at the mouths of the rivers and the resulting pollution from

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urban growth. Over fishing and the continued degradation of fish habitat resulted in the decline of the salmon that were once so abundant in the rivers and streams. By the mid 1980’s it was clearly recognized that wild salmon were in danger of extinction. Furthermore it was acknowledged that activities in the watersheds such as forestry, agriculture, grazing, industrial activities, urbanization, water pollution and dams had hastened this decline. Attention then focused on how watersheds as distinct units could be better taken care of to restore some of their former functions such as water quality, the amount of water in the stream or river, and fish habitat. This movement came to be called watershed management and watershed planning. After the growth of the environmental movement in the 1970’s some people thought it was better to work on local issues such as the region’s rivers and water, rather than on national issues. The idea of a watershed as a “bioregion” that could be looked at as a whole began to emerge during this period. The needs of the watershed could therefore be addressed irrespective of political boundaries such as county and even state jurisdiction and the various public and private ownership patterns. From this emerged the idea that the people in the region were “stakeholders” in this process and could engage in collaborative watershed activities. The term “stakeholders” came to mean the people engaged in the collaborative planning activities such as tribes, representatives of government agencies whether federal, state, or local, irrigation districts, environmental groups, and landowner representation from farmers, timber companies, etc. The definition of who was a stakeholder depended on the circumstances of the specific watershed. However, tribes do not regard themselves as stakeholders. Nor are they interest groups. Rather, they are sovereign governments with inherent powers to govern themselves. Indian tribes will interact with state governments, but they will usually only do so as sovereigns on a government-to-government basis. Section II Tribal – State Relations The primary relationship that Indian tribes have is with the federal government. The treaties were negotiated and signed with the United States government. A treaty is a legally binding contract between two sovereign nations that details the terms of the agreement between them. (States and Tribes, 1995, p 4) The U.S. Supreme Court defined the relationship between Indian tribes and state governments in 1832. In Worchester v. Georgia, Chief Justice Marshall wrote: “The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.” (Wilkinson & AIRI, 2004, p.150) States have no authority over Indian tribes. Section III Federal and State Roles in Water Policy In the 1800’s the newly established government of the United States was interested in rivers as transportation corridors. Navigable rivers came under the jurisdiction of the new federal government. Flood control also became an issue that the federal government dealt with in the later 19th century. The U.S. Army Corps of Engineers would come to play a dominant role in flood control, and later become identified with many of the problems caused by dam building. Another interest of the federal government was facilitating settlement of the west. The western

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regions of the country were arid; clearly irrigation would be needed to encourage people to populate and farm these lands. The federal government was the only entity that could provide the impetus and funding for such large-scale irrigation projects. The 1902 Reclamation Act set up what eventually became the Bureau of Reclamation to provide irrigation in 16 western states. During the early part of the 20th century the generation of hydropower became another federal objective. The Federal Power Commission was created in 1920 with the responsibility of licensing nonfederal power projects on navigable rivers. The Federal Energy Regulatory Authority (FERC) continues this responsibility today. By the end of the first half of the 20th century the concept of integrated river planning had evolved. This planning meant the development and use of the rivers, not their preservation or conservation. The plan for the development of the Columbia River came from this period. This meant planning for how many dams could be built on the River to generate hydropower, prevent flooding, and provide water for irrigation. Large-scale river development continued into the second half of the century. The final part of the Columbia River plan was the John Day Dam built in 1971 and the Lower Granite Dam on its tributary, the Snake River in 1975. Today, the Pacific Northwest relies on hydropower for about 70% of its electricity. Nationally, 40 percent of all U.S. hydropower is generated by the dams on the Columbia and Snake Rivers. The Clean Water Act Other important roles of the federal government in water policy came out of the environmental movement of the 1970’s. Rising concerns about the safety and cleanliness of the country’s water had grown during the 1960’s. This culminated in the passage of the federal Clean Water Act (CWA) of 1972, which sets national policy for clean water. The purpose of the Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. The CWA requires state governments to:

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1. Establish and periodically revise water quality standards; 2. Perform water quality assessments to identify water bodies that are not meeting the

standards, and to list these every two years; and 3. Develop cleanup plans (determine ‘total maximum daily loads, or TMDL’s) for the

listed water bodies. In Washington State these activities are carried out in watersheds. The federal Environmental Protection Agency (EPA) was given the authority to enforce the CWA. The EPA can delegate the authority to enforce clean water standards and regulations to Indian tribes through a program called Treatment as State (TAS) as well as to states. States do not have regulatory authority on Indian reservations. The CWA states that only tribal governments can establish water quality standards and implement management plans on Indian reservations. The majority of the twenty-nine federally recognized tribes in Washington have participated in developing and implementing plans for water quality. This is the Coordinated Tribal Water Quality Program (CTWQP) begun in 1990. The purpose of CTWQP is to assist Washington tribes in improving water quality, restoring salmon populations, and the protection of shellfish and their respective habitats. Individual tribes participate in the development and implementation of watershed management plans, monitor water quality trends, map problem areas, address contaminants affecting shellfish beds, establish well-head protection programs and develop water quality standards. The tribes often set higher water quality standards then the State government does. The Northwest Indian Fisheries Commission (NWIFC) acts as the coordinating entity for the tribes. (NWIFC, 2005) The Endangered Species Act The federal Endangered Species Act (ESA) of 1973 is the most significant fish and wildlife law ever passed. It also impacts water because of salmon listings. The following are excerpts from this legislation.

Congress finds …that various species of fish, wildlife and plants in the United States have been rendered extinct as a consequence of economic growth and development…The purposes of this (law) are to provide a means whereby the ecosystems upon which the endangered …and threatened species depend may be conserved…. All Federal departments and agencies shall seek to conserve endangered …and threatened species and shall utilize their authorities in furtherance of (this) purpose...Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species. (U.S.C. 1531-1543)

The federal agencies that administer the ESA are the U.S. Fish and Wildlife (USFWS) agency in the Interior Department and the National Oceanic and Atmospheric Administration (NOAA), Fisheries (formerly NMFS, the National Marine Fisheries Service) in the Commerce Department. Beginning in 1991 the federal government began to list Snake River salmon as threatened and endangered under ESA. By 1999 ESA listings of Chinook, Coho, chum, and steelhead stocks in Washington occurred over 75% of the state.

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State Water Policy While the federal government has the responsibility for the quality of water in our rivers and watersheds, state governments have come to have the legal oversight over water quantity or water resources. States traditionally have had the responsibility for allocating the water within their borders among competing water uses. Two common law systems have evolved to govern this allocation. In the eastern part of the country the riparian doctrine predominates. This means that those who own property that borders a river have the use of water from that river. West of the 100th meridian, where annual rainfall is less than 20 inches per year (with the exception of the area west of the Cascade Mountains in the Pacific Northwest), the prior appropriation doctrine came into use. “Prior appropriation” essentially means that the first person who diverts water from the river or stream and puts it to beneficial use (irrigation, stock watering, household water, etc.) has the right to that water. This way of allocating water grew out of the settlement of the arid west, the need for water for irrigation, and early mining law. Miners’ claims were based on “first in time, first in right.” The riparian doctrine did not make sense in the west, so early court decisions regarding water rights were based on this: the first one to use the water had the legal right to that water. These are called senior water rights. Subsequent users were ranked in order of when they started diverting water for use. Junior water users could use only that amount of water that would not impact the senior users amount of water. Water rights are permanent, as long as the water is put to “beneficial use.” Section IV Federal Indian Water Rights Winters Doctrine Rights Indian tribes and their reservations have reserved water rights, which came out of a 1908 U.S. Supreme Court decision, Winters v. United States. Non-Indian farmers upstream from the Fort Belknap Reservation in northwestern Montana diverted water from the Milk River to irrigate their crops. This meant that there was not enough water in the stream for tribal members to use for their crops on the reservation. The up-stream farmers cited the prior appropriation doctrine because they were the first to divert the water and put it to use. They said they had senior water rights to the Milk River. The decision that ultimately was handed down by the Supreme Court stated that when the reservation was established, the tribes and the U.S. government implicitly reserved sufficient water to meet the needs of the reservation. The priority date for these water rights was the date the reservation was established. These reserved water rights are not subject to state law, therefore they exist whether the tribe has put the water to beneficial use or not. A much later U.S. Supreme Court decision, Arizona v. California, 1963, stated that executive order tribes and federal lands such as national parks and forests also possessed similar reserved water rights. This decision created the “practicably irrigated acreage” (PIA) standard. The amount of water reserved was enough to meet the present and future needs of the reservation. This meant the

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amount of water needed to irrigate the lands on the reservation suitable for irrigated agriculture. State courts ordinarily do not have jurisdiction over Indian tribes and reservation lands. These issues go to the federal court system. One exception is water. In 1952 Congress passed the McCarran Amendment. This federal law allows state courts to adjudicate federal Indian reserved water rights. The concept of federal Indian reserved rights remains, but the state courts can determine the extent of these rights. Off-Reservation Water Rights: From Time Immemorial As American settlers moved westward into the Pacific Northwest, the federal government decided it was time to make treaties with the tribes in these areas. This was during the time of Indian removal, i.e., the federal policy to remove the Indians to reservations in order to open the land for white settlement. Isaac Stevens was sent to the Washington territory in the early 1850s to do this. During the treaty councils that he called with the Indian groups and tribes in the area, he heard, through his translators, many of the native people speak about the importance of fishing to their way of life. Though Stevens knew very little about the native people he was negotiating with, he did know that white settlers and members of his party depended on buying salmon from them for an important part of their food supply. It was clear that the Indians would not sign the treaties without provisions in them to reserve their right to fish, hunt, and gather. Thus, the treaties contained a clause that said “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory…” (Treaty of Point Elliott, Article IV. 12 Stat. 97. Wilkinson and AIRI, 2004). The important thing about this treaty clause is that the tribes’ “usual and accustomed” fishing grounds were not on the newly established reservations, but were the locations where the Indians had fished historically. Thus the tribes reserved in the treaties they signed the important right to fish off-reservation in their historic fishing sites. In the early 1970’s at the request of tribes in the area, the federal government went to federal district court to force the state to recognize treaty-fishing rights. After three years of careful consideration of the testimony and evidence, Judge George Boldt issued his decision in U.S. v. Washington, 1974. He stated that “in common,” in the treaties meant that the tribes were entitled to catch 50 percent of the salmon returning to the tribes’ historic fishing grounds.(384 F. Supp. 312) U.S. v Oregon, 1969, was a similar case that recognized Indian treaty fishing rights on the Columbia River. A subsequent decision, called Boldt Phase II, though never fully litigated at this point in time, established that an “environmental right” accompanies the treaty right to take fish. This means that the tribes have a legal interest in having fish habitat maintained throughout the migratory range of the salmon. An essential part of this is having water in the streams and rivers for the fish. The right to take fish carries with it the right to have fish habitat protected from human caused degradation, including water diversion. Thus off-reservation water rights mean the right to have sufficient water in the streams and rivers for salmon. These water rights date from “time immemorial” and thus, theoretically, predate all other water uses. Winters doctrine and off-reservation water rights are senior water rights. Western Washington tribes assert that:

1. State water law and administrative process do not adequately protect instream resources, nor water for on-reservation purposes;

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2. State water law and administrative procedures fail to recognize the prior and paramount water rights of the Indians that relates back to time immemorial; and

3. These rights are not subordinate to state law, including water laws. (NWIFC, 1990, p. 15)

Section V Watershed Planning in Washington State The Department of Ecology (DOE) Early non-Indian settlers came to the region as a result of the federal Homestead Act and related legislation. As they began to farm the fertile valleys, such as those of the Yakima River basin, they diverted water from the rivers and streams to irrigate their fields. In order to establish their right to this water, they would post a notice on a tree or post near the diversion. This practice continued when Washington became a state in 1889. In 1917 the first Water Code was passed. This code recognized existing rights but made appropriation through a state permit system the exclusive way to establish new rights. This 1917 law is still the basis for water law in Washington, although many subsequent statutes have been passed. In 1945 the Legislature enacted the Ground Water Code, establishing the same permitting process used for surface water. During this period there was little regard for the amount of water left in the rivers and streams for fish, wildlife, or other instream uses. Indeed, many thought that water allowed to flow freely to its outlet, such as an estuary, lake, or ocean, was wasted water. This began to change in 1949 when the legislature declared it to be state policy … “that a flow of water sufficient to support game fish and food populations be maintained at all times in the streams of this state.” This was formalized by the Minimum Water Flows and Levels Act of 1969. Under this law, the Department of Ecology may, upon request of the Washington Department of Fish and Wildlife or of its own volition, establish minimum flows by administrative rule to protect fish, wildlife, water quality, and other instream values. Under current law the DOE must consult with the affected Indian Tribe before instream flows are set. Water Resources Act of 1971

A milestone in Washington water law was the Water Resources Act of 1971, which was to protect and manage the state's water resources for "the greater benefit of the people." This legislation is important because it recognized the values of having water left in the stream as well as the usual out-of-stream uses. The 1971 Act is the present instream flow law used to protect fish and other instream values by setting minimum instream flow levels basin-wide before issuing new water rights. Instream flows adopted as rules are considered a water right and have a priority date of when the rule was adopted. Instream flows are junior water rights. They do not put more water in the stream unless additional measures are taken. They are set to prevent water being withdrawn from a river or stream below the set level. The actual setting of instream flows has been a long and contentious process. Though the process began with the 1971 legislation, as of 2006 there has been only 20 instream flow levels established, which is 32% of the Water Resource Inventory Areas (WRIAs) in Washington State. The process of setting instream flows has been controversial, both as to the priority of these water rights and the levels

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at which they are set. Clearly the State Legislature considered the Watershed Planning Act of 1998 to be another solution to this on-going dilemma.

The Salmon Recovery Act The Salmon Recovery Act, HB 2496, established the Governor’s Salmon Recovery Office to coordinate state and local salmon recovery efforts. “The Salmon Office's role is to coordinate and produce a statewide salmon strategy; assist in the development of regional recovery plans;

secure current and future funding for local, regional, and state recovery efforts; and provide the Biennial State of Salmon report to the Legislature.” (Washington, Governor, Salmon Recovery Office, 2006) This plan was adopted to meet ESA and CWA requirements. The Governor’s Office issued its 2004 State of Salmon in Watersheds Report with another one due in 2006. As the coordinating entity for the tribes, the NWIFC has been an active partner in the Shared Strategy for Puget Sound salmon recovery and has issued its own State of Our Watersheds Report, WRIAS 1-23 as part of the Salmon and Steelhead Habitat Inventory and Assessment Program (SSHIAP).

Source: salmonrecovery.gov/images/SalmonMap_lg.jpg

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The Watershed Management Act of 1998

This Act provides a framework to collaboratively solve water quantity issues. The Department of Ecology had previously divided Washington State into 62 administrative units called “Water Resource Inventory Areas” (WRIAs) based on watershed and topographic boundaries rather than political units such as counties. Planning is done within these WRIAs. The act is designed to allow local governments to join with tribes and state agencies together with local citizens to form planning units to develop watershed management plans. “These planning units shall assess each WRIAs water supply and use, and recommend strategies for satisfying minimum instream flows and water supply needs. The planning units may develop strategies for improving water quality and protecting or enhancing fish habitat, and in collaboration with Ecology, set instream flows.” (Washington, DOE, 1998) The planning process is to be initiated by local governments including, in some WIRA’s, Indian tribes. The resulting plans need only address water supply and use. Issues of instream flows, water quality, and habitat requirements are optional. The legislature supplies funding to these local planning efforts. This process is an attempt to blend a top-down, country government dominated approach with a more collaborative process involving genuine stakeholder participation and collaboration.

Source: .epa.gov/nps/watershed_handbook/ The watershed planning process is currently well underway. Forty-five of the 62 watersheds (WRIAs) have initiated some part of the process. Thirty-seven watershed planning groups have been formed to develop watershed plans for the forty-five watersheds (some groups plan for contiguous watersheds). The DOE’s 2004 Report to the Legislature on the implementation of the Act states that: “local watershed planning groups consist of representatives from county, city, tribal and state governments, as well as local stakeholders including developers, farmers, water purveyors, environmental groups and local citizens.”(Washington, DOE, 2005) By the end of 2005 fifteen watershed plans have been adopted by county governments and eight of those are beginning to be implemented. Six of the fifteen will have recommendations for instream flows.

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“Wherever water is scarce, its future is inseparable from that of the communities that depend on it.”

John Lombard

10 Water Laws of the West By Hugh Holub, University College of Law Review This article appeared on lawstudy.org/law-school in 2009. Introduction: It does not take a law degree to understand water law and policy in the western United States. Ten basic legal and historical principles govern the rights to and uses of water in the West. By understanding these ten Water Laws of the West anyone can then understand the current issues of water and its relationship to the future of the West. I. The Law of Gravity: The First Water Law of the West is the Law of Gravity. Water runs down hill. The initial uses of water in the West involved the use of gravity to tap rivers and divert their flows into canals for delivery to farms and mines. This is also known as Newton's Law. II. The Law of Los Angeles: The Second Water Law of the West is the original law of Los Angeles. This L.A. Law states that "water runs uphill to money". The development of energy technologies to lift water against the pull of gravity is the basis for modern Western civilization. Los Angeles pioneered the effort to defy gravity with money in the early 1900's with its Owens Valley Aqueduct. Southern California is now served with a network of pipelines and canals such as the Metropolitan Water District's Colorado River Aqueduct. Phoenix, San Francisco and Denver also utilize massive pumping and diversion systems to transport water from great distances in defiance of gravity to serve their growing urban populations. III. The Law of Supply Creating Demand: The Third Water Law of the West, also invented by Los Angeles, is that "if you don't have the water, you won't need it." This is sometimes stated as "he who brings the water brings the people." Both are attributed to William Mulholland, a pioneer director of the Los Angeles Department of Water & Power (DWP). Los Angeles and other Western cities operate on the premise that in order to assure growth of their cities, water supplies for the future must be developed well in advance of that growth. This is in contrast to the general approach in Western cities of developing freeways and other public infrastructure long after the growth has actually happened. IV. The Law of I Got It First: The Fourth Water Law of the West, embodied in the West's surface water laws, is the doctrine of "prior appropriation" translated into "first in time is first in right." First in time for most water uses in the West were farms and mines. Instead of "first in

In the Western United States water runs uphill to money. The Second Water Law

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time is first in right", we have seen the evolution of "we've got more votes than you in the state legislature" to decide who gets water. V. The Law of Beneficial Use: The Fifth Water Law of the West is that to have a right to water it must be "beneficially" or "reasonably" used on that appurtenant land. This is only understood in the context that water left flowing in a river maintaining the survival of fish in that river and vegetation growing along side that river was not originally defined as a "beneficial" use in Western water law, whereas drowning gophers or growing rice in deserts were deemed "beneficial" uses. In recent years, environmentalists have succeeded in gaining recognition of "instream" beneficial uses of water and a new category of water rights is beginning to emerge to preserve flows in rivers. However this process is emerging only after most rivers and streams in the West have been dammed and dried up by diversions of the flows to the previously established beneficial uses. To fully appreciate why this happened, it must be remembered that the fish in these streams only recently were able to obtain the services of water lawyers via various environmental and conservation organizations. VI. The Law of Worthless Land: The Sixth Water Law of the West is that without a water right or access to water, land is worthless. There is not enough water available to use all available land for all the potential beneficial uses. Thus lands with water rights or access to water have value for use, whereas land without water rights is known as the desert, with zero value except when being subjected to state and local property taxation. It is also a historic fact that farmers, ranchers and miners figured all this out about a hundred years before the average city council or environmental group, thus most Western water laws are heavily weighted in favor of using water for farming, ranching and mining. This law is also known as the "appurtenancy" rule meaning the rights to the use of water are tied to specific parcels of land, which are usually owned by farmers, ranchers or miners. VII. The Law of Expropriation: The Seventh Water Law of the West focuses on how water (and other natural resources) are obtained for Western civilization. This Law depends on finding some fairly impoverished and unsophisticated water right holder (usually Indians, farmers, or rural communities) on the other side of the mountain a city can steal water rights from. Los Angeles pioneered this approach by buying up the Owens Valley on the east slope of the Sierra Nevada for water rights nearly 90 years ago. What we are now experiencing is not so much a water shortage, but a shortage of people on the other sides of mountains who are willing to let their water resources be stolen by cities. VIII. The Law of the Price is Right: The Eighth Water Law of the West is that there is no water shortage if the price is right. It is widely believed in city halls that the farmers will sell their water rights if the price is high enough so the farmers can go raise martinis in La Jolla instead of cotton in the Salt River Valley of Arizona, or the Imperial Valley in California. Thus when someone asks "is there enough water for Los Angeles or Phoenix to grow?" the answer is probably yes -- if you don't care about how much the water will cost.

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IX. The Law of Water Monopoly: The Ninth Water Law of the West is that water management in an arid environment almost always results in the creation of a water monopoly. Thus (along with the discovery of fire and religion) the first steps towards civilization included the construction of irrigation ditches and the immediate creation of some sort of bureaucracy to run the system. Not surprisingly where irrigation water monopoly civilizations rose, they lasted for thousands of years. The Wetlands Irrigation District in the Central Valley of California and the Salt River Project in Arizona are merely the modern counterparts of one of humankind's most ancient of institutions -- the water monopoly. Many western urban areas figured out the value of water monopoly and created enormously powerful regional agencies such as the Metropolitan Water District of Southern California and the Central Arizona Water Conservation District in Arizona, to do essentially the same thing -- building vast networks of canals to bring water to their constituents. X. The Law of Vanishing Civilizations: The Tenth (or Last) Water Law of the West should be called the Hohokam Law of Water and Gravity. Under this law, if there is no rain, there is no water to flow down hill. What went up -- the buildings and the civilization -- may crumble to dust if Mother Nature decides to hold a long drought. Lying beneath the streets of Phoenix are the ruins of the ancient Hohokam Indian metropolis that vanished prior to 1400 AD. Phoenix is the second city to be built on the same site in reliance on the erratic flows of the Salt River. Californians prayed for rain for the last six years (apparently successfully) because they didn't have enough water to flush their toilets. Many Southern Californians had been heard to ask "What do you mean this used to be a desert?" Conclusion: The principles that govern Western water law and policy have a long and somewhat distinguished history. It should also be noted that similar arid environment ditch-dependent civilizations ultimately collapsed under extreme environmental stresses, internal political conflict, and invasion by barbarian hordes. This is worth contemplating after a six year drought with various water interests fighting over who will get water in times of future shortages while the streets of Santa Monica or Scottsdale are filled with RVs with New Jersey license plates.

Are there any conflicts or tensions around water in your community? If so, how is it being handled by the various stakeholders?

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Whose Water? The Battle For Water By Tony Clarke and Maude Barlow, Reprinted from "Whose Water?," the Winter 2004 issue of YES! Magazine. YES! is a non-profit, ad-free national publication that fuses powerful ideas and practical actions. To subscribe, visit www.YesMagazine.org/subscribe or call (800) 937-4451. In the 21st century, our water is becoming a commodity. Some want to profit from it and others are ready to go to war over it, but every form of life must have it. Water use is growing twice as fast as population, but there is no more water today than there ever has been. Who will control this source of life? We are taught in school that the Earth has a closed hydrologic system; water is continually being recycled through rain and evaporation and none of it leaves the planet's atmosphere. Not only is there the same amount of water on the Earth today as there was at the creation of the planet, it's the same water. The next time you're walking in the rain, stop and think that some of the water falling on you ran through the blood of dinosaurs or swelled the tears of children who lived thousands of years ago. While there will always be the same amount of water, we can render water unusable for ourselves and for the planet. The growing scarcity of potable water stems from a variety of causes. Per capita water consumption is doubling every 20 years, more than twice the rate of human population growth, which itself is exploding. Technology and sanitation systems, particularly those in the wealthy industrialized nations, have encouraged people to use far more water than they need. Yet even with this increase in personal water use, households and municipalities account for only 10 percent of water use. Industry claims 20 to 25 percent of the world's fresh water supplies, and its demands are dramatically increasing. Many of the world's fastest growing industries are water intensive. For example, in the U.S. alone, the computer industry will soon use over 396 billion gallons of water each year. Nonetheless, it is irrigation that is the real water hog, claiming 65 to 70 percent of all water used by humans. Increasing amounts of irrigation water are used for industrial farming. These water-intensive corporate farming practices are subsidized by governments and their taxpayers, and this creates a strong disincentive for farm operations to move to conservation practices such as drip irrigation. Along with population growth and increasing per capita water consumption, massive pollution of the world's surface water systems has placed a great strain on remaining supplies of clean fresh water. Global deforestation, destruction of wetlands, dumping of pesticides and fertilizer into waterways, and global warming are all taking a terrible toll on the Earth's fragile water systems. The world is running out of fresh water. By the year 2025, there will be 2.6 billion more people on Earth than there are today. As many as two-thirds of those people will be living in conditions of serious water shortage, and one-third will be living with absolute water scarcity. Demand for water will exceed availability by 56 percent.

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Water as a commodity The combination of increasing demand and shrinking supply has attracted the interest of global corporations who want to sell water for a profit. The water industry is touted by the World Bank as a potential trillion-dollar industry. Water has become the “blue gold” of the 21st century. The move to privatize water coincides with the rise of the Washington Consensus as the dominant world economic philosophy. This philosophy calls for trade and investment liberalization, and turning responsibility for social programs and resource management over to the private sector. In this case, it is an assault on the ancient commons of water. Global trade agreements have become perhaps the most important tool for corporations trading in water and their allies. All of the multinational governing bodies, the North American Free Trade Agreement (NAFTA), the General Agreement on Trade and Tariffs (GATT), and the World Trade Organization (WTO), define water as a commodity. As a result, water is now subject to the same rules and regulations governing other commodities like oil and natural gas. Under these combined international rules, a country cannot prohibit or limit the export of water without risking censure by the WTO. Nations are also restricted from denying the import of water from any country. NAFTA's “proportionality clause” means that if a country turns on the tap to export its natural resources, it cannot turn off the tap until it runs out of that resource. In addition, the push to privatize water services will be greatly enhanced by new rules governing cross-border trade in services at the WTO, known as the GATS (General Agreement on Trade in Services). Under the proposed GATS rules, not only will governments face added pressures to deregulate and privatize their water systems, but once a city's water services have been taken over by a foreign-based corporation, efforts to take these services back into public hands will invite severe economic penalties under the WTO. Leading the charge for privatization are three big transnational corporations based in Europe: Vivendi, Suez, and RWE. All three have systematically bought out smaller rivals to become the dominate powers in the business of water all over the globe. The long-range strategy of these companies began with their efforts to take over the public water systems in Third World countries where they hoped to position themselves as the saviors of the water crisis. Instead, a series of private-sector fiascoes in the Third World derailed their plans. The case of Buenos Aires is especially instructive. Buenos Aires was to be the flagship operation of Third-World water privatization. Suez, through its subsidiary Aguas Argentinas, took over the Buenos Aires water and sewage system in 1992. A common argument for privatizing water systems is that, unlike the cash-strapped public sector, the private sector has the capital necessary to update or refurbish aging water systems. But public sources like the World Bank, International Monetary Fund, and other smaller banks supplied 97 percent of the $1 billion necessary for the Suez privatization experiment. Suez did expand water and sewage service by a small increment, but failed to meet its projected targets in both areas. Nonetheless, the company managed to reap annual profits of around 25 percent in the mid-1990s. Recently, Suez announced that it plans to pull out of Argentina because the country's currency crisis has cut into its profits. There have

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been other private-sector fiascoes in places like Johannesburg, New Delhi, Manila, and most famously in Cochabamba, Bolivia. The effort to privatize Third World water systems has become a target of civil society protests. Representatives of an international civil society network appeared at a meeting of chief executive officers at the World Water Forum in Kyoto, Japan, in March. The group took over the microphones and offered a series of testimonials about the impact of water privatization around the world. Toward the end of the event, a water activist from Cancun, Mexico, stepped to the microphone and held up a glass of pitch-black, putrid-smelling water. He explained that he had taken the water from his home tap in Cancun, where Suez runs the municipal water system. He then requested that the moderator pass the glass of black, smelly water up on stage to the CEO of Suez, inviting him to drink it. Targeting First World water The big water companies are now changing their strategy and concentrating their operations and their investment on more secure markets in North America and Europe. Eighty-five percent of all water services in the U.S. are still in public hands. That's a tempting target for conglomerates like Suez, Vivendi, and RWE. Within the next 10 years, they aim to control 70 percent of water services across the United States. They have positioned themselves to move aggressively. Vivendi, Suez, and RWE have bought up the leading U.S. water companies, U.S. Filter, United Water, and American Water Works, respectively. These water companies had largely serviced small towns and communities, but under the tutelage of the global giants they have become the engines for privatization in the United States (see page 16). When transnational water conglomerates take over a municipal water system, it feels like a local problem, but because the same corporate players are targeting communities all over the world, we must build alliances and connections, learn from one another, and start to build a frontal attack. At the Polaris Institute, we propose a three-pronged strategy. First, develop a water-alert network so we can know where companies are operating and where they are going next. How are they going to move? And how can we get ahead of them? Second, we need water-action teams that bring citizens together to build local water-watch coalitions and develop campaigns to protect their water supplies and services from conglomerates. Then we should link those local campaigns with the national campaigns of groups like Public Citizen or the Council of Canadians. Third, we need to offer alternatives. It is not enough to say we want to defend our public water systems against private takeovers. There are problems with public water systems, and we must find new ways of revitalizing them in our own communities through citizen participation. Engaged citizens can act as watchdogs for their local water systems.

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Our local actions should be informed by three global principles. One is water conservation. We cannot kid ourselves about water scarcity. Water may be abundant in one place, but it's scarce in others. Water conservation must be a top priority. The second principle is that water is a fundamental human right. People need water to live. Water must be provided equitably to all people and not on the basis of the ability to pay. The third principle is water democracy. We cannot leave the management of our most precious resource in the hands of bureaucrats in government or the private corporations, whether or not they are well intentioned. We, the people, must preserve this special trust, we must fight for it, and we must take our proper role and demand water democracy. Maude Barlow, national chair of the Council of Canadians, and Tony Clarke, director of the Polaris Institute, are co-authors of Blue Gold: The Corporate Theft of the World's Water. This article is adapted from presentations made by the authors at the Water for Life conference in New York, September 2003, co-sponsored by Resurgence magazine and the Omega Institute.

“We have been quick to assume rights to use water but slow to recognize obligations

to preserve and protect it…. In short,

we need a water ethic--a guide to right conduct in the face of complex decisions about natural systems we do not and

cannot fully understand.”

Sandra Postel, Last Oasis: Facing Water Scarcity

July 28, 2010 - The United Nations Declares

Access to Clean Water and Sanitation Is a Human Right

“Safe and clean drinking water and sanitation is a human right essential to the full enjoyment of life and all other human rights, the General Assembly declared today, voicing deep concern that almost 900 million people worldwide do not have access to clean water. The Assembly resolution received 122 votes in favour and zero votes against, while 41 countries abstained from voting.”

Source: www.un.org

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POSSIBLE DISCUSSION QUESTIONS 1. Do you think a watershed, rather than a reservation, county or state, is a useful planning

unit? This question is similar to the first discussion question in Session 1. Have your thoughts on this remained the same or changed over the sessions. If so, why or why not?

2. Water Appropriation Systems discusses the differences in East Coast riparian water law and West Coast prior appropriation water law. What are the benefits to prior appropriation for Western United States? When does it not work well?

3. In the article Tribes and Watersheds in Washington State, it states that the federal government is responsible for the quality of our water and the state government is responsible for water rights (water quantity). If water is, in reality, a single issue, how should the stakeholders in a watershed address issues?

4. What interested you the most in the article Tribes and Watersheds in Washington State? If you do not live in Washington State, how are the laws governing water in your state the same or different from those in Washington?

5. Share a particular ‘aha’ from your reading of 10 Water Laws of the West. 6. Whose Water? The Battle for Water covers water as a commodity, then concludes with a

statement that water should be a fundamental human right. Should it be the law of the marketplace that governs our relationships with water or should water be a human right? Why or why not?

7. What do you think of Sandra Postel’s statement on a water ethic in the box on page 23? 8. The final box announces the UN General Assembly’s vote in July 2010 that declares “safe

and clean drinking water and sanitation is a human right.” What impact will the UN declaration have on ensuring access to clean drinking water for all?

9. What is a problem, conflict or tension about water that exists in your community? How is it being handled by the various stakeholders? By the various governmental agencies?

FURTHER READING & RESOURCES Peter H. Gleick, Gary Wolff, Elizabeth L. Chalecki, Rachel Reyes, Principles and Standards

for Privatization, February 2002. Describes what a community should consider if it plans to privatize its water system. Find this article and more on water privatization on pacinst.org Green Matters, Natural Resources News, Issues, Regulations, 2009 Website: greenmatters.csgeast.org

This curriculum contains material reprinted with permission. Opinions expressed within articles are those of the authors and may not represent those of Washington State University Extension. Articles are presented to promote discussion of topics related to water use. Issued by Washington State University Extension and the U.S. Department of Agriculture in furtherance of the Acts of May 8 and June 30, 1914. Extension programs and policies are consistent with federal and state laws and regulations on nondiscrimination regarding race, sex, religion, age, color, creed, and national or ethnic origin; physical, mental, or sensory disability; marital status or sexual orientation; and status as a Vietnam-era or disabled veteran. Evidence of noncompliance may be reported through your local WSU Extension office. Trade names have been used to simplify information; no endorsement is intended.