Fish & wildlife Three Sovereigns

Models for Columbia River Governance

The Status Quo

Models for Reform

Summary Table

Introduction

This paper outlines options for governance reform on the Columbia River. Section A briefly describes existing governance arrangements on the river. Section B outlines a series of models that would change the status quo, and describes them in two ways. First, each model is described in nuts-and-bolts terms - what, who and how the model would function. The models are then analyzed in light of several assumptions: (1) Governance models should address definable problems; (2) the nature of the problem should supply a rationale for conferring certain powers (those that are needed to address the problem); and (3) the problem and the powers conferred suggest a pattern of representation.

A. The Status Quo

Historically, river management meant dam management, primarily by federal institutions. The Army Corps of Engineers and the U. S. Bureau of Reclamation manage the dams for multi-purpose operations; the Bonneville Power Administration manages federal power marketing; and the Federal Energy Regulatory Commission licenses non-federal hydropower projects. Management was driven largely but not exclusively by power operations, which produce economic benefits that spread throughout the region, especially to other river users: irrigators, barge companies, cities that are protected from floods, and others. Under a treaty with Canada called the Columbia River Treaty, several major storage reservoirs in the U. S. and Canada are regulated primarily for hydropower generation and flood control. Columbia and lower Snake project operations are coordinated to complement treaty operations.

However, river management has never been an exclusively federal domain. States manage permitting processes for water diversions from the river, and instream flow programs in tributaries. Depending on state law, diversions and instream flows can become water rights, usually privately owned. Significant water diversions occur in the Columbia's mainstem, but are more significant in tributaries.

The river's fish and wildlife are managed through a different set of institutions. Historically, the four Northwest states managed hunting and fishing. In the 1960s and 70s, Indian tribes and federal courts became major players in harvest management through Indian treaty litigation. Since this litigation, the states and the tribes have developed cooperative harvest management regimes.

There is a shorter history of managing the effects of development on fish and wildlife. When the salmon runs first declined with the effects of dams, water use, habitat degradation and harvest, the first response was to build fish hatcheries, often federally funded hatcheries managed by state and federal fish and wildlife agencies. Decades later in Indian treaty litigation, tribes urged that salmon habitat was entitled to protection from the effects of dams and other development. Since 1980, the Northwest Power Planning Council's fish and wildlife program has identified measures to mitigate the effects of hydropower development. The Council's fish and wildlife program is based on the recommendations of disparate fish and wildlife managers, and must balance power supply needs. Bonneville must act consistent with the council plan, while other federal hydropower agencies must take the program into account "to the fullest extent practicable." At the same time, the Council plan must be consistent with federal law if it is to be implemented.

Since 1990, the river's management has been strongly influenced by the Endangered Species Act, which requires federal agencies to conserve species listed under the Act. Since 1993, the dams have been operated under Endangered Species Act guidelines set out in National Marine Fisheries Service "biological opinions." Federal land management, hatcheries and harvest are also guided by biological opinions. The listings led to pronounced increases in Bonneville Power Administration fish and wildlife spending and in the stored water that is used for salmon flows. Both things come at a time when federal hydropower sales face competition in energy markets.

To summarize:

• Much of the management of the Columbia's mainstem is oriented to purposes such as hydropower, flood control, navigation, irrigation, etc., which are largely federal or federally- administered.
• Since 1980, an interstate body, the Northwest Power Planning Council, has developed a program to mitigate the fish and wildlife effects of the federal dams, ensure the region's power supply, and guide the investment of federal hydropower revenues in fish and wildlife mitigation. This plan is based on the recommendations of disparate federal, state and tribal fish and wildlife managers.
• Since 1990, the federal Endangered Species Act program has been a powerful influence in river management. The Endangered Species Act program also encompasses federal habitat, fish harvest and hatchery management.
• Indian tribes, many of which do not see their interests adequately protected in federal or state forums, have their own mitigation plans. These plans are also asserted in administrative, judicial and legislative processes.

Ways to better integrate these laws and arrangements are discussed in the next section.

B. Models for Reform

1. The Three Sovereigns

A. Description of the proposal

What (scope):

"The overarching goal of this [proposal] is to provide a high-level policy forum in which federal, state and tribal governments will address, collaborate on and coordinate basin-level policy, planning, decision-making and implementation issues and processes that affect the Columbia River Basin ecosystem."

The initial focus would be on factors affecting anadromous fish, such as hydropower, harvest, habitat and hatcheries. The process also would consider related resources, including resident fish and wildlife, habitat, cultural resources, recreation, and commercial interests.

Who (representation):

A principal-level forum: four state, thirteen tribal and one federal representative;

A high staff-level committee: four state, four federal and four tribal representatives.

How (authority):

The proposal would require no change in law, and would be established by memorandum of agreement. It would require a high degree of agreement among the participants both to establish the process and to accomplish specific tasks.

The process would use "different approaches for different issues and processes, including developing a unified plan, commenting on decision-making schedules, consolidating overlapping activities, collaborative decision-making, and other approaches."

Collaborative decision-making would be used for some major issues:

Collaborative decision-making needs to be approached with flexibility, but in general it refers to instances in which the Three Sovereigns jointly investigate, analyze, debate, create a decision-making record and recommend a decision regarding an issue. . . . In collaborative decision-making, the Three Sovereigns recognize the decision-makers' legal obligations, and reach decisions that comply with these obligations.

B. Analysis

The Problem:

The (implicit) problem the Three Sovereigns are trying to address is the lack of a forum in which federal, state and tribal governments (1) collaborate on terms of equality (2) to unify federal, regional and tribal fish and wildlife policies.

Thus the problem is two-fold: Existing forums constrain participants to certain subjects, processes, decision rules and decision makers that some parties mistrust. The region now has multiple fish and wildlife recovery plans that compete for attention and resources: the Council's 1994 program, the NMFS draft Snake River recovery plan and the lower river treaty tribes' Spirit of the Salmon. The basin has no unified policy to which everyone subscribes, and there is no single forum in which to try to bring these plans together.

Power:

The Three Sovereigns process would confer no legal authority, but it would respond to its problem statement by equalizing the power of all participants, at least within the Three Sovereigns process, and establishing a common commitment to finding joint solutions. The assumption is that shared information, process and commitment to finding solutions will foster consensus. Once an issue leaves the Three Sovereigns process, it would reenter a legal arena in which parties and processes have disparate power and purposes. However, the assumption is that if the Three Sovereigns agree on a recommendation, the recommendation will continue to carry significant weight.

Representation:

Because the process aims to unify government policy, representation is limited to governments. The pattern of representation responds to concerns of principle and practicality: the principals' forum would have four states, thirteen tribes and one federal representative, reflecting the principle that each entity is a sovereign and should, if possible, bring a single perspective to the policy table. However, as a practical matter, a smaller group more closely reflecting operational authority is needed to implement policy. Thus, the operational work would be handled by a committee of four state, four federal and four tribal representatives. Also, as a legal and sometimes constitutional matter, it may not be possible for a sovereign to have a single position. Government agencies are charged with certain responsibilities by law and sometimes by constitution. They may have to discharge these responsibilities regardless of whether they are consistent with the position taken by the single representative in the process.

2. Appoint Tribal Members to the Power Planning Council and Use the Council Process to Address a Wider Range of Issues

A. Description of the proposal

What (scope):

The governors would appoint some members of the Northwest Power Planning Council from tribes, and the Council and its staff would support collaborative work on a broader range of issues touching the river than the Council currently addresses.

Who (representation):

Under the Northwest Power Act, governors appoint the members of the Northwest Power Planning Council, two members per state. Under this approach, some of these appointments would be made from the ranks of the region's tribes. Individual state laws would still govern appointment and confirmation processes.

How (authority):

Appointments of tribal people to one or more of the eight Council member positions would be made without a change in law. This approach assumes that with its existing authority the Council can facilitate collaborative work on almost any river-related issue its members agree to consider.

B. Analysis

The Problem:

The alternative assumes that the primary problem with the existing Council is that it lacks members from tribes.

Power:

The alternative assumes that the existing Council authorities are sufficient to permit the Council to facilitate collaborative efforts on any key Columbia River Basin issue.

Representation:

The prospect of appointing tribal members to the Council poses several questions: If tribal representatives were appointed, how many? If governors appointed tribal representatives, they would presumably be bound to uphold the purposes of the Northwest Power Act. In doing so, would they represent the perspective of the appointing governor, a tribe, or several tribes?

3. A Regional Resources Council

A. Description of the proposal

What (scope):

A more broadly representative and authoritative new council would be authorized to develop an integrated resource plan to offset the effects of hydropower facilities on anadromous fish, resident fish and wildlife in the Columbia River Basin. The council plan would link and integrate fish and wildlife obligations, power system operations, energy conservation and resource needs.

Who (representation):

Some number of state and tribal representatives; a super-majority vote required for major decisions; and mandatory deadlines for action.

How (authority):

1. Generally: Federal agencies would be required to act in a manner consistent with the resource council's integrated resource plan, as Bonneville is now obliged to do under the Northwest Power Act. Authority would be limited, however, because the council plan also would have to accommodate federal law. That is, no federal agency would be required to contravene its legal authorities. Agencies would be required to explain in writing if other legal responsibilities preclude compliance with the council plan.

The council would prepare its plan on the basis of its own information and analysis. This would differ from the current council, which must develop its fish and wildlife program on the basis of recommendations submitted by fish and wildlife agencies, tribes and others.

2. Hydropower operations: The council's general authorities (as outlined above) would apply to hydropower operations. The council plan would consist of strategies to protect, mitigate and enhance fish and wildlife, while addressing the Pacific Northwest's need for an adequate, efficient, economical and reliable power supply. The council would be authorized to participate in ESA consultations on hydropower operations.

3. Funding authority: The council also would oversee federal funds for Columbia River Basin fish and wildlife, from whatever source. This would focus fish and wildlife funding administration in a single place in lieu of what is currently a complex, multi-party process. Under this model, all federal agencies must follow the same process: to submit proposals for use of funds, appropriated or otherwise, for independent scientific evaluation and council recommendation. Federal project expenditures must be consistent with the council's plan.

4. Accountability: The resource council would be required to adopt explicit monitoring and evaluation mechanisms to ensure accountability.

5. An interstate compact approved by Congress and state legislatures could accomplish this alternative. It also could be established by federal legislation, as a commission whose appointments are made by the President based on regional nominations.

B. Analysis

The Problem:

The resource council model aims at fixing problems in the Northwest Power Planning Council's fish and wildlife process. The model asserts four problems with the existing council: (1) it lacks tribal representation (although tribal recommendations play an important role in the process), which can limit its effectiveness; (2) it lacks sufficient authority with regard to federal agencies; (3) the Council's program must be based on disparate recommendations of fish and wildlife agencies, tribes and others, which ensures a fragmented plan; and (4) the Council lacks the power to monitor and evaluate the results of its program.

Powers:

With regard to federal agencies: (1) All federal agencies (including the National Marine Fisheries Service, the Forest Service and others) would have obligations with regard to the council plan. Currently, only the agencies that run the hydropower system have such obligations. (2) However, the resource council would retain the limitation in the Northwest Power Planning Council's current authority: although federal agencies must act consistent with the Council plan, the council plan will be implemented only if consistent with federal authorities. In this sense, the resource council would represent an incremental increase in authority vis-a-vis federal agencies. (3) The resource council would participate in federal agency consultations under the Endangered Species Act, not supplanting existing federal agency authorities, but ensuring the council an opportunity to assert a system-wide perspective in hydropower operations. (3) The resource council would play a strong role in federal agency fish and wildlife budgeting.

With regard to the basis for the resource council's planning: The council would have greater autonomy in developing fish and wildlife policy, working from its own information and analysis, including independent scientific analysis, instead of from recommendations of fish and wildlife agencies and tribes. This would respond to Return to the River's criticism that the current system, which gives legal weight to disparate recommendations, fosters fragmented policy.

Representation:

The pattern of representation - state and tribal representatives in undetermined proportions -- would be a significant issue in the council's makeup. In considering both this shift and the relative strengths of state and tribal representations, two factors are important:

First, representation should address the perceived problems of effectiveness posed by the current Council's lack of tribal representation. It also should address a practical problem: because there are many tribes, consulting with them individually can be difficult. If tribes had significant representation on the resource council, it may provide the resource council with a more effective way to communicate with tribes.

Second, tribal representation might help respond to Return to the River's criticism that the current system fosters a fragmented vision of the river, in this sense: Return to the River asserts that in requiring that individual agency and tribal recommendations must drive the Council's plan, the Northwest Power Act fosters a fragmented vision of the river: many actors in many fish and wildlife agencies and tribes submit recommendations, which the Council must accept unless they fail certain standards. Under this procedure, an integrated view of the river is easily lost. The resource council model responds to this problem by replacing the current requirement for recommendations with significant tribal representation, and expanding authority to develop an integrated, basinwide power and fish and wildlife plan. The assumption is that tribal representation would provide a strong impetus for fish and wildlife mitigation and recovery, while diminished emphasis on outside recommendations avoids policy fragmentation.

At the same time, however, expanded representation, especially if combined with expanded authority, raises questions of democratic representation. In general, the more authority a governing body has, the more obvious the question of proportional representation, i.e., representation based on population rather than political jurisdiction. From this perspective, citizens from more populated jurisdictions do not have the same degree of representation as citizens from less populated jurisdictions.

4. A Regional Endangered Species Agency for Hydropower

A. Description of the proposal

What (scope):

A Northwest Rivers Commission "to protect and restore a healthy, sustainable Northwest fishery," particularly Endangered Species Act listed species.

Who (representation):

A ten-person Commission would be created: two governor-appointed members from each state, and two tribal members appointed by Secretary of Interior. An advisory council would assist the Commission with subcommittees for river operations; fish resources and facilities management; fish harvest; agriculture and irrigation; and public lands management.

How (authority):

The Commission would assume most Endangered Species Act functions, subject to approval by the President. The President must approve unless he finds the Commission's action inconsistent with the Endangered Species Act. The Commission would: determine whether proposed actions jeopardize listed species develop recovery plans for Endangered Species Act species; approve incidental take permits; and develop habitat conservation plans.

B. Analysis:

The Problem:

This approach sees the primary problem as federal implementation of the ESA.

Power:

The approach would leave ultimate Endangered Species Act decision-making authority with the President, but authorize the region to make judgments under the Act in the first instance. As such, it would give the region significant participation in decisions on river operations, harvest, habitat and hatchery operations.

Representation:

The pattern of representation -- eight state representatives and two tribal -- implies that state interests should be better represented in Endangered Species Act decisions. The question of proportional representation, discussed in model 3, above, is also relevant here.

It is possible that the Northwest Power Planning Council could comprise the eight state members of the commission.

5. A Comprehensive Agency for the River

A. Description of the proposal

What (scope):

An agency that develops and implements comprehensive plans for federal project operations, species conservation, and water quality and quantity.

How (authority):

Using the Delaware River Basin Commission as a model, the agency would develop a long-term plan and an annual plan for the river:

The long-term plan would have integrated policies for the waters of the Columbia River system: (1) management of federal (and federally-licensed) water projects; (2) interstate standards for water banking, conservation and related issues; (3) mitigation planning for fish and wildlife affected by the waters of the system; and (4) water quality.

The annual plan would address: (1) annual project operations; (2) specific investments in water and fish and wildlife projects; (3) public and private water development and conservation of Columbia River water.

No federal or state project operation, regulation or expenditure touching the river would be authorized unless consistent with the river agency's plans.

Who (representation):

The governors of the four states (or their designated alternates); one or more presidentially-appointed federal representative; and tribal representatives.

B. Analysis

The Problem:

This model sees the problem as not just fish and wildlife, hydropower, or the Endangered Species Act. Rather, the problem is government's fragmented approach to a hydrologically and ecologically integrated river system. Although the river supports different uses and resources, each is affected by how the river is managed for any of the others.

Power:

The alternative is loosely modeled on the Delaware River Basin Commission, a federal-state compact with broad authority over water quality, quantity, reservoir operations and development permitting. This model would adapt the Delaware model by bringing in species conservation issues.

The ESA and other federal laws (Clean Water Act, treaty obligations, etc.) would apply to the river agency as though it were a federal agency. The agency would not supplant the National Marine Fisheries Service, the U. S. Fish and Wildlife Service, the Environmental Protection Agency and others, but would be required to consult with them to determine whether the river agency's plans and projects comply with applicable laws.

The model would not tie Commission authorities to the current Endangered Species Act, the Northwest Power Act, or the Clean Water Act. Regardless of how these laws change, the river agency would manage the river in an integrated way to meet evolving needs.

An alternative: the river agency could stand in the shoes of NMFS, EPA and other agencies, and assume their role as arbiters of compliance with the ESA, the Clean Water Act and other laws.

Representation:

The Delaware Commission consists of the governors of affected states plus a single federal representative. Recognizing the important role of federal facilities in the Delaware system, the President may suspend Commission actions that undermine federal interests. The Delaware has no tribal representation and so offers no precedent there.

Determining the balance of state and tribal representation involves many of the considerations mentioned in connection with other models, with this difference: this model is less focused on fish and wildlife matters per se and more on a broad and evolving spectrum of interests in the river.

Conclusion

Comments on these or other alternatives are welcome. Is it necessary or appropriate to seek statutory change to improve how decisions are made on the river? Is one of these approaches more useful than others? Is there a combination of approaches that would make more sense? Should the region begin with one alternative and phase into another? Are there other approaches to consider?

We hope you will send us comments on these questions by writing to us care of the Northwest Power Planning Council, 851 S. W. Sixth Ave., Portland, Oregon 97204, or email to . Please label your comments "River Governance" and submit them by August 21, 1998.

^ top