In the mid-20th century, Canada and the U.S. collaborated together to form the Columbia River Treaty. This agreement meant both countries would jointly develop, manage and regulate the Columbia River. The treaty was intended to last for 60 years which means it expires in 2024. Earlier this month, 32 Pacific Northwest groups sent a letter to U.S. officials urging them to modernize this treaty as that deadline approaches. Barb Cosens is a member of the Universities Consortium on Columbia River Governance and a university distinguished professor emerita at the University of Idaho College of Law. She joins us to share why this treaty was enacted, what options exist as we approach the 2024 deadline and what’s at stake if agreements to extend the treaty can’t be made.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Almost 60 years ago, the U.S. and Canada implemented the Columbia River Treaty. It established a framework for cooperative water storage, flood control and hydroelectric power for the mighty river that starts in British Columbia and eventually meets the Pacific near Astoria. But a lot has changed since 1964, not least of it, a much better understanding of the devastating effects dams have had on salmon populations. And the two countries are in the long process of renegotiating the treaty. The most recent round of negotiations ended last month. For more on what this treaty has meant for the Columbia basin and what it could look like in the future, I’m joined right now by Barb Cosens, university distinguished professor emerita at the University of Idaho College of Law. Barb Cosens, welcome to Think Out Loud.
Barb Cosens: Thank you. It’s a pleasure to be here, Dave.
Miller: Why did Canada and the US decide in the middle part of the 20th century that it would be beneficial to get together to create some kind of Columbia River Treaty?
Cosens: Well, by the time the Columbia River Treaty entered into force on September 16, 1964, there was already a lot of hydropower production within the United States, but it was mostly what we call run of the river. It didn’t store a lot of electricity until Grand Coolee was built, but the main reservoir sites that remained were in Canada. And starting in the 40s, the two countries began discussing what they might benefit from if they jointly developed the river. That proceeded kind of slowly. And then in 1948 there was a major flood. You had a rain on snow event in Canada that brought all the water off at once. And it was such a sizable flood that it wiped out the town of Vanport, Oregon, which was at that time, it was a shipbuilding town located between Portland and the river. Fifteen people lost their lives and that really catalyzed looking at flood control as well as hydropower as part of the treaty. It still wasn’t completed until 1964.
Miller: It’s so interesting to hear that perspective on the Vanport flood because, in the Portland area, I guess I’ve thought about it as the result of a storm and a very ill advised placement in the middle of a floodplain for this sort of instant city for the war effort, but I haven’t thought about a river starting in Canada as being connected to that devastating flood. So flood control, it seems, was an important piece in terms of U.S. considerations. What were Canadians interested in? What were their national interests in getting together on this two country treaty?
Cosens: So, two things that we hear a lot about; the effect of the flood on Vanport, but there were communities all the way down the river, including in southern British Columbia that were affected by that flood. So, flood control would help communities in Canada as well. But the second thing was, this is the post World War II era. Canada and the United States have worked together on that effort. Everyone’s been pulled out of the depression from it and now they want to move forward. Rural electrification, all of these things both countries have in common, and the idea that they could store water in Canada and then produce more hydropower at every single one of those dams already located downstream was attractive to both countries.
Miller: And was the idea at the beginning there during the negotiations in the 50s and into the early 60s, that Canada would then benefit, actually get some of the electrons from the hydropower dams that were on the U.S. side?
Cosens: Yeah, that’s one of the interesting things in how the treaty has played out. The treaty itself has 50% of the added increment of electricity produced at each dam in the United States belongs to Canada. And it even identifies a delivery point for that power to British Columbia.
Miller: Just so we all understand when you say the added increment, so if there were already some dams here and the water was flowing down, heading towards the Pacific, turning the turbines, generating electricity, that was U.S. power. The added increment is if water, if it could somehow be ascertained that it was stored behind a dam in Canada and storage led to some new bit of water going through a U.S. turbine, then that extra bit, 50% of that was Canada’s?
Cosens: Exactly, which requires a lot of engineers doing all kinds of rules and things to understand exactly when water is needed for production, exactly when they have the capacity and exactly when to release it from a dam in Canada.
Miller: And was part of this idea that there would be, in coordination, some U.S. authority would be in contact with the Canadian authority to say, “Yes, let’s release more water now. No, let’s not release water now”?
Cosens: Yes, both sides had to appoint an operating entity. The U.S. appointed the administrator Bonneville Power and the northwest division manager of the U.S. Army Corps of Engineers, and Canada appointed BC Hydro, their Crown Corporation that operates hydropower there and they coordinate on six year operating plans, one year operating plans, and daily, as power is being produced.
Miller: There are a lot of different entities total that have some kind of interest in this gigantic basin, there’s states, or north of us, provincial governments, federal government’s, sovereign Tribal governments, electricity marketers like the B.P.A. that you just mentioned and then all kinds of industries and interest groups and irrigators and on and on. Which parties were actually at the table back in the early 1960s?
Cosens: So international law is among nation states, so the United States, with representatives from Bonneville Power, the U.S. Army Corps of Engineers and Department of Interior were all working with the State Department on the U.S. side of negotiations. The Foreign Ministry of Canada would have handled things from the Canadian side. At that time, the State Department can invite observers and there were very powerful congressional people from the basin, from Montana, Idaho, Washington and Oregon, who were invited as observers and participated in those negotiations. In Canada, very interestingly, the treaty was actually completed and signed at a ceremony in 1961. But the Premier of British Columbia was not happy that all of the benefits of the treaty would flow to, as they say, Ottawa, the seat of the federal government, and the harms of building new dams would be felt by British Columbia. So between 1961 and 1964, British Columbia negotiated with the Canadian government and a protocol was developed and added to the treaty that the power benefits go to British Columbia and that’s why it’s BC Hydro that is their operating entity. That is why today in negotiations in British Columbia are hand in hand with the Foreign Ministry of Canada, in negotiating on behalf of Canada. No tribes or First Nations were at the table in those negotiations.
Miller: That is a key point here. So neither in Canada nor in the U.S., not even in a kind of observational way. First Peoples, First Nation Peoples and Indigenous U.S. Tribes had no voice in this huge negotiation?
Cosens: Except to the extent they might have had some influence with their congressional people and with their ministers in British Columbia, but at that time there was very little capacity and very little voice for Indigenous peoples in the basin.
Miller: You noted, to go back to one of the big parts of this agreement, that 50% of the extra power generated by U.S. hydropower dams would go back in some way to British Columbia. So did British Columbia actually want our electricity?
Cosens: No, this was one of the things that British Columbia negotiated. They didn’t need it at that time, because they had hydropower from elsewhere. And so in order to pay for the building of the dam, since the treaty would require that dams be built, they entered into 30-year contracts for sale at a price of $254 million for sale of hydropower to the southwest in the United States and Congress, actually, that was when Congress authorized the Pacific Northwest Southwest powerline, that would allow the Columbia river basin to reel power to southern California and southern Nevada and Arizona.
Miller: So British Columbia was selling electricity generated in U.S. dams, selling it to Los Angeles?
Cosens: Yes, exactly. And since then, those 30-year contracts for sale have expired. But because Canada has since then put hydropower on each of these three reservoirs, plus built to re-regulate the reservoir with hydropower facilities at Revelstoke, they still don’t need that hydro power. So they continue to sell that back to the United States on the spot market and you can imagine it tracks energy prices so it goes up and down in value with the energy market.
Miller: Is it fair to say that, broadly, both countries have been happy with this agreement that’s nearing 60 years old?
Cosens: Broadly, you can say that, yes, because it’s held up internationally as the premier example of cooperation among countries. Usually when two countries enter into an agreement on water, it says we get this, you get this, and we won’t interfere with each other. This joint development and shared benefits is a model, considered a model, in international law. The other side of that is, and one reason why negotiations today aren’t just about the flood control provisions that expire, so much has changed since 1964, everything from our energy markets to our understanding of the effect on anadromous fish to the capacity and power of First Nations and Tribes in the United States.
Miller: So let’s turn to this now. First, I should just note that, from what I understand, the treaty was supposed to last 60 years, meaning at least until 2024. And both countries had the option to unilaterally back out of this treaty as long as they gave a ten-year warning. And that would have been in 2014 as the earliest they could have done it. And neither country said we want out, right?
Cosens: That’s correct. And really in 2024, it’s only the flood control provisions that expired. The United States paid 65 million for 60 years of flood control. So only that expires. But with that expiring, either country could have decided to terminate the rest of the treaty.
Miller: So something like 14 years ago, both countries individually started to talk amongst their own parties on their national sides to figure out what they wanted, if anything, to change in the treaty. What did that look like in the U.S. and in Canada?
Cosens: So, it began actually with joint modeling by the operating entities. So BC Hydro, Bonneville Power and Army Corps of Engineers first began just simply modeling what it would look like if we didn’t coordinate on flood control anymore. But very quickly that began a major review on both sides. So in the United States, under the leadership of Bonneville Power and the U.S. Army Corps of Engineer, they formed what they called the … they did a regional review, in order to develop a regional recommendation. They formed a sovereign advisory team that was made up of representatives of the 15 Native American reservations within the basin and representatives of the four main states and also all the federal agencies that are involved in other aspects of the basin, such as the Bureau of Reclamation and the NOAA Fisheries. And they did a review process, their own modeling. They held listening sessions all around the basin, a group that I work with, the University’s Consortium on Columbia River Governance held conferences on both sides of the basin to help with public input and public education. In 2013, they made a recommendation to the state department. On the Canadian side, that review was led by BC Hydro and the government of British Columbia. They also did consultation with First Nations and they did modeling and they did listening sessions around the basin. That ended up with a B.C. decision that was transmitted to the Foreign Ministry, also in 2013.
Miller: Is it possible to actually quantify the level of true participation and the level of power that is being given now to First Nations in Canada and federally recognized Tribes in the U.S., groups that have been here for tens of thousands of years and were effectively shut out of negotiations at the beginning?
Cosens: It’s really a paradigm shift to have had the 15 Native American reservations in the United States represented on the sovereign review team. It not only shifted the power and the dialogue, but it resulted in the regional recommendation including ecosystem function as a third prong of a modernized treaty. So you would have hydropower, flood control, and ecosystem function, as the three goals of joint management. On the British Columbia side, it didn’t change things as much during the review process, but elections following the review process resulted in a paradigm shift there as well. The Canadian government approved the U.N. Declaration on the rights of indigenous peoples and as part of their implementation of that they have invited representatives of three First Nations to the table as observers in the negotiations taking place today.
Miller: What do you see? I mean, one of the things that’s striking about everything you’ve been saying is the extent to which the parties seem relatively on the same page with each other on either side of this international border. Where are the points of tension?
Cosens: Yeah so they … it does appear … so, negotiations I should say are confidential and I’m not party to them and if I was, I wouldn’t have authority to speak about them. I don’t know what’s going on there, but from what we see on press releases and what we know from the B.C. decision and and the U.S. regional recommendation is that, in a broad sense, they are on the same page. They appear to still feel it’s very important to jointly cooperate on river operation. They feel that hydropower production is important, because system function is important and flood control is important. The devil, as it always is, is in the details.
On hydropower production the United States, following entry into force of the treaty, passed the Endangered Species Act and in the 1990′s, anadromous fish were listed in the basin and what that resulted in, as in order to comply with the Endangered Species Act. The United States spills water at federal dams without creating power from it in order to move smolts out of the river back to the ocean. Because in order to avoid breaching the treaty with Canada when they do that, they pay Canada for hydropower, as if they calculate the Canadian entitlement to electricity, as if that water produced power.
So you can imagine for the utilities downstream that that raises an interest in paying for what we actually produce rather than what we do and bringing ecosystem function to a third form of the treaty maybe will make that part of the negotiation easier. But certainly the United States wants less power to be part of the Canadian entitlement. Canada wants more.
On flood control, Canada would like more flexibility in the operation of their dams, which means not constraining them so much for flood control. What happens is they, in anticipation of runoff, they draw the dams way down. That creates these big flats of, sort of salt flats, and sometimes toxic materials that create dust storms within the basin in Canada. Interests have developed around having the lakes at certain levels, recreational interests, and so they would like more flexibility in how they operate the dams. They would like the United States to rely more on federal dams in the United States for flood control. And of course the United States has enjoyed a very low risk of flood for the past almost 60 years and would like that to continue. So, really working out how to get that flexibility for Canada while still maintaining a high level of your flood control is one of the other details. Those probably are not insurmountable.
And the other really hard one is, while they agree about ecosystem function as being important, how do you do that and how do you reconcile that with production of hydropower and flood control? And that’s both the question of balancing values and a question of how you operate, a scientific question of how you operate the rivers. So that’s a very difficult one. And some of the press releases indicate that they’re looking at some kind of adaptive mechanism to be able to do that as things change in the basin. But I have no idea whether they’re approaching any agreement.
Miller: Barb Cosens, thanks very much for joining us today.
Cosens: Thank you. It’s been a pleasure.
Miller: Barb Cosens is university distinguished professor emerita at the University of Idaho College of Law.
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