The following article appeared in the Winter 1998 issue (Vol. 4, no. 2) of Big River News, the newsletter of the Northwest Water Law and Policy Project.

Focus on Legislation

Written by Michael Fife, Northwest Water Law and Policy Project

The watershed approach is founded upon the idea that local stakeholders are the best positioned to solve local watershed health problems, and that these solutions can be arrived at cooperatively through a consensus based process and implemented with local voluntary efforts. As the watershed approach has evolved, rules and regulations to guide this informal process have proven necessary. Most of this activity is taking place in Oregon due to the extensive state involvement in watershed councils, but to varying degrees it is happening throughout the Northwest.

As reliance on watershed councils in the Columbia River Basin increases, this legislative and administrative framework will continue to grow. It is thus important that those involved with councils understand the statutes and regulations, both in order to recognize existing opportunities and requirements, and to have the knowledge necessary to help guide the development of this legal framework.

Oregon

The watershed council process in Oregon has received considerable attention in recent months because of the role it plays in the state salmon recovery plan (Oregon Plan). Despite criticism of the plan's reliance on watershed councils, Oregon's approach has resulted in a legislative scheme that is beginning to develop concrete standards to guide the formation and operation of watershed councils. (For a general overview of the Oregon legislation see Big River News, Volume 4, Issue 1). Additional changes made during the last legislative session include:

Funding and recognition

Under state statute, "recognition" of a watershed council serves to make the council an official entity. (OR. REV. STAT. § 541.350(7)) This statute defines a watershed council as a "voluntary local organization designated by a local government group convened by a county governing body...." In most instances, the Board of County Commissioners officially recognizes watershed councils, however, a local city government may also provide recognition. Councils formed after September 1, 1995, must be recognized in order to receive funding from the Governor's Watershed Enhancement Board (GWEB).

The primary benefit of recognition relates to funding opportunities. Although under existing law, any person, watershed council, Indian tribe, state or federal agency, political subdivision of a state, soil and water conservation district, community college, state institution of higher education, and independent not-for-profit institution of higher education may apply to GWEB for funding for watershed enhancement work, officially recognized watershed councils receive priority in funding decisions. (OR. REV. STAT. § 541.375(1))

Other opportunities

Senate Bill 924 specifies that GWEB will approve funding only for projects that "[c]ontribute to either (A) [t]he improved health of a stream and toward the achievement of standards that satisfy the requirements of the Federal Water Pollution Control Act, . . . or (B) [t]he restoration of native or anadromous fish habitat." These priorities indicate the dual role that the legislature hopes watershed councils will play in Oregon: in relation to the Endangered Species Act, and to the Clean Water Act, particularly non-point source pollution and the total maximum daily load (TMDL) process.

Although watershed councils do not currently bear any responsibilities with regard to the TMDL process, they should view the process as an opportunity to illustrate to both the legislature and potential funders the importance of councils. In recent years the burden upon the state to establish TMDLs for approximately 860 water quality limited waterbodies in Oregon has increased dramatically and unexpectedly. This is an expensive and time-consuming process for the state to undertake. Watershed councils can potentially do some of this work, which would relieve the Department of Environmental Quality of a burden that would otherwise consume scarce department resources.

House Bill 3700.

House Bill 3700, also passed in 1997, allows GWEB fund recipients to use the funds to (1) purchase nonpossessory interests in land, which can include leases or easements such as conservation easements, and (2) lease water for instream flow purposes. Councils may also lease land and water independently of HB 3700; the bill simply authorizes the use of GWEB funds for such purposes. This is similar to all the rules governing watershed councils in Oregon: the rules do not address council activities directly, but rather set conditions for the distribution and use of GWEB funds. This, in turn, indirectly guides the activities of the councils themselves.

House Bill 3523

House Bill 3523 permits any local government, state agency, watershed council, or any individual working cooperatively with one of these three groups to request the Water Resources Commission to reserve unappropriated water for multi-purpose storage for future economic use. Prior to passage of this bill, only local governments and state agencies could make such requests. In addition, the bill requires that the Commission request comments from a watershed council or local government in an affected area before making a decision on any requested reservation.

Washington

Second Substitute House Bill 2054

This bill passed both houses of the Washington legislature, but most provisions were vetoed by Governor Locke. Despite this defeat, the bill represents one of the first attempts to transfer planning authority to locally formed groups. Vetoed portions of Second Substitute House Bill 2054 would have established a process for creating local planning units composed of a variety of stakeholders. The local units would have formulated water resource plans for their respective Water Resource Inventory Areas. The Department of Ecology (Ecology) would then have been bound by these plans, effectively delegating planning authority to the local planning unit. Although Ecology already can share planning responsibility with watershed groups as a result of the 1990 Chelan Agreement, that agreement does not require the agency to do so.

Washington Administrative Code 173-152-040

The Department of Ecology recently adopted administrative rules according to which it will prioritize the processing of water rights applications. These rules allow Ecology to conduct a basin assessment prior to processing water rights applications in that basin. Each assessment will assemble and correlate information related to water uses, water availability, the quantity of water allocated to existing rights and instream flows, and the hydrology of the basin.

The rules also permit Ecology to contract with other public or private parties to conduct assessments. This creates a good opportunity for watershed groups, due to their extensive knowledge of local conditions and ability to collect relevant data.

The Question of Authority

One of the ideas that serves as a cornerstone of the watershed approach is that voluntary efforts, rather than compelled efforts, can accomplish significant ecological restoration. Correspondingly, watershed councils currently do not possess any regulatory authority, and the Washington experience demonstrates that it may be some time before the political landscape encourages delegation of that authority to a council. The faith in voluntarism is not universally shared however, and some critics of the Oregon salmon recovery plan claim that since watershed councils do not have regulatory authority they cannot bring about salmon recovery as effectively as an Endangered Species Act listing.

This question of authority is thus a core issue for the watershed council process. The current regulatory culture encourages the assumption that the amount of authority possessed by an entity directly corresponds to its ability to create change. This assumption is probably true with regard to problems such as point source pollution, where the regulations apply to a discrete and easily identifiable group of individuals. But in relation to other environmental problems, often caused by the cumulative effects of a large number of sources dispersed over a wide geographic area, this assumption may not hold true. These types of problems defy effective monitoring, and attempts at regulation are difficult to enforce. In this type of situation voluntary efforts are essential, and regulatory programs may be the least effective method of solving the problems because of the confrontational atmosphere they create. Regulation breeds confrontation, and confrontation inhibits voluntarism. This suggests that watershed councils will be more effective without regulatory authority.

As the statutory framework relating to watershed councils continues to grow, the debate concerning how much regulatory authority councils should possess will intensify. As the region enters into this debate it should remember that the ability to bring about change comes in many forms, of which regulatory authority is but one. The region's primary objective should be to create the proper mix of these forms that will result in the greatest health for our watersheds.

For more information, please contact Michael Fife at (503) 768-6762 or water@lclark.edu. Subscriptions to Big River News are free.