Lawmakers introduce bill to block Trump rule limiting scope of federal water protections

May 14, 2020

House Committee on Transportation and Infrastructure chair Rep. Peter DeFazio, of Oregon, and Chair of the Subcommittee on Water Resources and Environment Rep. Grace Napolitano, of California, submitted a bill to block the Navigable Waters Protection Rule finalized in April.

The 1972 Clean Water Act made it illegal to discharge any pollutant into “waters of the United States,” unless a permit was obtained.

The exact definition of “waters of the United States” was contested in courts for decades.

The Obama administration attempted to clarify the rule by expanding the definition to include more water bodies that flow directly or indirectly, to navigable waters.

The Trump rule eliminated the 2015 rule and narrowed the definition to four types, leaving other waters under often more lenient state jurisdiction.

The bill’s authors said the Trump administration wrote the rule to benefit polluters at the expense of the health of people who depend on those waters.

“By removing critical protections at the behest of industry, Trump’s Dirty Water Rule will make streams and waterways more vulnerable to pollution, which is devastating for the 117 million Americans who rely on these waterways for drinking water,” said DeFazio.

More than a dozen leading environmental organizations have backed the bill, including Earthjustice, the League of Conservation Voters, the Environmental Law and Policy Center and the Sierra Club.



WASHINGTON, D.C. – Oregon’s U.S. Senator Jeff Merkley, a member of the Senate Environment and Public Works (EPW) Committee, announced today that the Senate’s 2020 water resources legislation contains major victories for communities across Oregon.

Merkley has spent months working with community leaders all over the state developing detailed proposals to address local challenges. As a member of the EPW Committee, Merkley was involved in bipartisan negotiations to develop today’s legislation, and fought hard to include Oregon’s priorities. The draft legislation passed the Senate EPW Committee with significant bipartisan support this morning.

“From coastal communities whose ports power their local economies, to cities and towns all across Oregon that need clean and affordable drinking water, this legislation is a big victory for Oregon,” said Merkley.“Water is essential to our health and our economy. I fought for major investments in our water and port infrastructure because these investments will create jobs now and benefit our communities’ well-being for many years into the future.”

With committee passage today, the next step for the legislation is consideration by the full Senate.

Specific victories in today’s legislation include:

Helping Smaller Communities With Technical Support for Water Treatment: Many communities in Oregon have expressed how difficult it is to access the technical knowledge and professional guidance needed to design and finance water projects, and requested an expert to travel from community to community to discuss the best strategies for success. That’s exactly what Senator Merkley got into the bill: authorization for $10 million per year to fund a program made up of experts that can travel to communities to offer on the ground assistance and support to owners and operators of small and medium public-owned treatment works.

Willamette Locks Transfer: The Willamette Falls Locks are an old Army Corps property that a local entity has proposed redeveloping for the benefit of the local community. This redevelopment cannot take place until the Locks are “deauthorized” by the Army Corps. Senator Merkley successfully included a provision allowing the Corps—after performing upgrades and making the site suitable for use—to deauthorize and transfer the Locks to a local Commission.

Army Corps Assistance for Projects in Hood River, Bandon, and Astoria: Senator Merkley successfully included a provision that will require the Army Corps to assist local communities in Oregon with preparing for their 7001 consultation process. This is the first step to being included in the Army Corps’ 7001 Report, which enables the project to be federally authorized and funded.

The local projects that will be assisted by this provision are:

  • Hood River Salmon Recovery: Study existing habitat conditions and recommend actions that will improve salmon habitat functions at the mouth of the Hood River and its confluence with the Columbia River.
  • Dredging at the Coquille River/Port of Bandon: Study how the Corps can assist the Port of Bandon with an increase in silting and shoaling adjacent to, but outside of, the federal channel, which is currently dredged by the Corps.
  • Dredging at the Port of Astoria: Study the capability of the Corps to increase the frequency and depth of its dredging of the Port to allow the Port to focus on its landside infrastructure.

Helping Small Communities Move Army Corps Projects Forward: Many small and disadvantaged communities want to implement Corps-related projects, but don’t have the resources to meet local cost-sharing requirements. This provision establishes a cost-waiver program under which communities who need it can get local cost share reduction of anywhere from 10 to 100 percent, allowing many more communities to implement or construct beneficial projects, including for storm damage reduction.

Addressing Microplastics Pollution: Microplastics and microfibers have become ubiquitous in our water supply, threatening both human health and our environment. Building off of his previous bipartisan work to address the microplastics crisis, Senator Merkley was able to successfully include a provision in today’s bill to create a grant program that will begin to tackle this urgent public health threat. This $10 million grant program will provide funding to wastewater treatment plants that want to improve their facilities to reduce and remove microplastics and microfibers from their treated water.

Cutting Red Tape to Help Local Communities Access WIFIA Loans: Senator Merkley created the Water Infrastructure Finance and Innovation Act (WIFIA) program to help local communities access affordable financing for water infrastructure projects, after hearing from local leaders across Oregon about the difficulty of securing affordable loans for these essential projects. In today’s legislation, Senator Merkley successfully included a provision that will make it easier for smaller communities to access WIFIA loans, by removing an overly burdensome requirement that WIFIA applicants provide two credit rating letters. Getting a second letter is often a time-consuming and unnecessary expense for applicants that lengthens the application process. Today’s provision instead changes the requirement to one opinion letter sufficient to determine creditworthiness, smoothing the application process and making it easier for local communities to move ahead with projects that will provide critical water infrastructure updates and create jobs at the same time.

Helping Small and Underserved Communities Access Water Efficiency Upgrades: Many small or disadvantaged communities have trouble accessing—or, in some cases, are barred from accessing—federal programs to help them with water efficiency measures. Senator Merkley successfully included a provision to create a grant program specifically designed to help entities like this replace or repair equipment designed to improve water efficiency. This program would help smaller and underserved communities in Oregon and across America access badly needed resources to make these upgrades to water systems.

Using Leftover Dredging Material to Help Local Communities: Dredged materials are left over after the Corps constructs a new project or dredges a harbor or channel. This provision requires that the Corps evaluate the environmental benefits and impacts of reusing that material to create natural infrastructure.

Investing in Alternative Wastewater Systems: This provision reauthorizes a grant program that helps entities with the engineering, design, and construction of alternative water source projects, including anything that improves the conservation, management, reclamation, or reuse of water, stormwater, or wastewater. This program helps to conserve water resources across the nation and to invest in new strategies that could assist with water conservation and reuse in the decades to come.


New digital market opens for West’s most valuable resource: water

The market for water rights — often called the greatest asset in the West — has been patchy, complicated and expensive to access. A new program aims to change that.

A digital platform called Western Water Market debuted in February. It offers an online listing service where people can buy, sell or lease water rights. The online platform resembles the housing market listing service Zillow.

“It’s like Craigslist,” said Kristina Ribellia, founder of WWM, “but classier.”

Water experts and agricultural leaders say the platform is the first of its kind and could markedly impact how people manage water rights in the West.

“It’s really filling a gap — I might even call it a void or chasm,” said Chris Hyland, executive director of the Walla Walla Watershed Management Partnership, a Washington state program listed on Ribellia’s platform as a buyer.

The existing water market has no uniformity, experts say. It consists of word-of-mouth networks, sprawling databases and the occasional newspaper classified ad.

In Washington, the Department of Ecology maintains a partial list of water transactions on an Excel spreadsheet — which Kelsey Collins, statewide trust water coordinator for the department, said “leaves a big gap.”

Ribellia’s new platform is designed to be populated by subscribers paying $49 per month, including sellers, potential buyers and consultants or attorneys listing professional services.

Like housing market platforms, WWM doesn’t handle regulatory requirements, check the validity of rights or process final transactions; it simply offers previews and makes introductions.

“I can see how this could be useful,” said John Stuhlmiller, CEO of the Washington State Farm Bureau. “Knowing what’s out there is half the battle.”

Ribellia initiated the platform in Washington and gradually hopes to encompass the 17 western-most states.

After working for Washington Water Trust, a conservation nonprofit, for five years, Ribellia, frustrated by bureaucracy and what she viewed as an inept water rights market, created WWM.

Ribellia said she hopes the service will connect rights holders with professionals, give sellers more options, localize water, encourage private market growth and put power in the hands of ordinary landowners.

“I feel like the market has been reserved for the privileged,” she said, “those few who have the connections, resources and knowledge of how to buy and sell water rights. And I don’t think that’s how it should be.”

Attorneys say time will tell whether the market catches on, but it has potential because of the appetite for water.

“There’s a lot of pent-up demand from people who want to acquire water rights,” said Bill Neve, a water rights consultant for Water Rights Solutions who also advertises on WWM. “The demand far outstrips the supply.”

Across the West, records show, there’s little water unclaimed.

In Washington state, according to the Ecology Department, the state’s water supply has been over-allocated; there are more rights than there is water.

The West operates under what’s called prior appropriation doctrine — “first in time, first in right” — meaning the older the rights, the higher the value.

In a drought, those with junior rights have their water turned off first.

These “interruptibles,” as Dan Haller, water rights consultant for Aspect Consulting, calls them, are often “chasing seniority” — seeking to buy senior rights.

In Oregon and Washington, any portion of water rights unused for five years can be lost, or relinquished. That prompts many farms to lease or temporarily donate rights so they aren’t relinquished.

Most large water transactions are between agricultural entities, said Haller. He estimates 10 to 30 “ag to ag” water right transactions, not including land purchases, take place annually in Washington.

But no one knows for sure. Water right transactions are notoriously hard to track. According to Collins of Ecology, farms are not required to report transactions to the state; reports are only mandated when a farmer proposes to change a water right, using it differently than what it was authorized for.

Farmers aren’t the only ones seeking water rights.

Worldwide, investors are buying water rights, building portfolios of “blue gold.”

In a changing climate, scientists predict less snowpack, unreliable rainfall and more droughts. Add to that growing urban populations and swelling developments, and experts say it’s clear why investors are aggressively pursuing water — which can be parked in water trusts for conservation purposes and sold later at greater profit.

Fall 2019, Washington farmers expressed concern when they learned Crown Columbia Water Resources, a Wall Street-backed firm, had been buying water rights from farms along Columbia River tributaries since 2017 and plans eventually to operate its own water market.

According to statements from the company’s lawyer, Mark Peterson, Crown intends to sell some of the water rights downstream to other areas.

“It’s caused a lot of angst,” said Hyland. “A lot of farmers worry that once the water leaves the basin, it’s never coming back.”

Ribellia said preventing speculation and consolidation of the market by investor-giants is one of her motivations for creating WWM. Her priority, she said, is keeping water local.

Water experts say Ribellia’s plan isn’t foolproof, because investors like Crown can still make offers. And WWM won’t restrict buyers from acquiring water rights from anywhere in the 17 states, softening the definition of “local.”

But Ribellia says the platform will provide local listings, and farmers approached by out-of-basin or out-of-state buyers will know they have local alternatives.

Experts predict water trusts and conservation groups, such as those seeking to secure in-stream flow for fish, will still have a place in the market with the new platform, but Ribellia said she believes “the private market can become the number one sector for restoring stream flow.”

An open water rights platform, however, makes some farmers jittery.

“More transparency doesn’t always work out in a farmer’s favor,” said Stuhlmiller of the Washington Farm Bureau.

“I’ve worked with a lot of clients who are very private,” said water consultant Neve.

He said WWM allows farmers to post anonymously, listing through a consultant who files on their behalf. The listing includes a map, but adds a layer of privacy by omitting the name.

“I don’t really see the privacy issue because you’re not going to be on there unless you’re choosing to be,” said Collins.

Farmers both crave and fear transparency around water rights, Stuhlmiller observed.

“I think what I’m doing is a bit edgy,” said Ribellia. “It makes everyone uncomfortable: agency staff, landowners. There will be farmers who never sell or lease, and that’s OK. I just hope I’m normalizing this and putting landowners in the drivers’ seats of the water market. I want farmers to call the shots.”


GRANT COUNTY OR: ODA to change water quality management

Some major changes are coming in the way the Oregon Department of Agriculture handles water quality concerns. The ODA historically addresses water quality issues on a complaint-driven basis, but that will all change according to Kyle Sullivan with the Grant Soil Water Conservation District. He wants to inform local landowners that the state agency will be taking a more proactive approach:

“They’re changing gears a little bit, and going to something they call the Strategic Implementation Area Program. They’re going to take an active look at the watershed and agricultural private lands within the watershed.

Using satellite imagery and aerial photographs, they’re going to look for potential violations of the agricultural quality management rules.”

A meeting that will explain the changes in detail, along with time for questions, will be held March 5th at the Grant County Regional Airport beginning at 6pm.


Bottled water war: Washington, other states seek to curtail firms in tapping local groundwater

OLYMPIA — Washington state, land of sprawling rainforests and glacier-fed rivers, might soon become the first in the nation to ban water bottling companies from tapping spring-fed sources.

The proposal is one of several efforts at the state and local level to fend off the fast-growing bottled water industry and protect local groundwater. Local activists throughout the country say bottling companies are taking their water virtually for free, depleting springs and aquifers, then packaging it in plastic bottles and shipping it elsewhere for sale.

“I was literally beyond shocked,” said Washington state Sen. Reuven Carlyle, who sponsored the bill to ban bottling companies from extracting groundwater.

“I was jolted to the core to realize the depth and breadth and magnitude of how they have lawyered up in these small towns to take advantage of water rights,” the Democrat said. “The fact that we have incredibly loose, if virtually nonexistent, policy guidelines around this is shocking and a categorical failure.”

Elsewhere, lawmakers in Michigan and Maine also have filed bills to restrict the bottling of groundwater or tax the industry. Local ballot measures have passed in Oregon and Montana to restrict the industry, although the zoning change in Montana’s Flathead County remains tied up in court.

“The Washington state bill is groundbreaking,” said Mary Grant, a water policy specialist with the environmental group Food & Water Watch. “As water scarcity is becoming a deeper crisis, you want to protect your local water supply so it goes for local purposes. (Bottled water) is not an industry that needs to exist.”

Although much of the controversy around the bottled water industry has concerned “bottled at the source” spring water sites, nearly two-thirds of the bottled water sold in the United States comes from municipal tap water, according to Food & Water Watch. The Washington state legislation would not keep companies from buying and reselling tap water.

Americans consumed nearly 14 billion gallons of bottled water in 2018, while sales reached $19 billion — more than doubling the industry’s size in 2004. The bottled water industry is expected to grow to more than $24 billion in the next three years, according to Beverage Industry magazine.

Industry leaders have opposed sweeping legislation that would cut off resources, pointing out the potential hit to local employment and the importance of bottled water in disaster relief.

“This legislation would prevent any community from having these jobs or having a project in their area,” said Brad Boswell, executive director of the Washington Beverage Association, who testified against the bill. “We think these issues are best dealt with on a project-by-project basis.”

The International Bottled Water Association defended the track record of its members in an emailed statement. The bill in Washington and other legislation to limit the industry “are based on the false premise that the bottled water industry is harming the environment,” wrote Jill Culora, the group’s vice president of communications.

“All IBWA members,” she wrote, “are good stewards of the environment. When a bottled water company decides to build a plant, it looks for a long-term, sustainable source of water and the ability to protect the land and environment around the source and bottling facility.”

Culora did not address specific examples of community claims that bottling companies have damaged their watersheds and aquifers.

When residents in Randle, Washington, learned of a proposed Crystal Geyser operation last year, some worried about a large industrial plant in their quiet, rural valley near Mount Rainier.

Many feared that the company’s plan to pump 400 gallons a minute from springs on the site would deplete the local aquifer and dry up their wells.

The worry turned to furor when a leaked email exposed the company’s plan to sue the nearby subdivision in response to neighbor opposition, then conduct an underground public relations campaign to gain support for the project.

“Pumping water out of the ground, putting it in plastic bottles and exporting it out of the state of Washington is not in the public interest,” said Craig Jasmer, a leader of the Lewis County Water Alliance, which organized to oppose the Randle plant and has pushed for the statewide ban.

Recent news increased the concerns: Last month, Crystal Geyser pleaded guilty to storing arsenic-contaminated wastewater at a California facility, and then illegally dumping the water into a sewer after being confronted by authorities. The company did not respond to a request for comment.

In 2016, Crystal Geyser paid a timber company for access to a spring that had historically provided the water for the city of Weed, California, forcing the town to find a new water supply.

Local activists in California, Oregon, Michigan and Florida say they have been targeted by big bottlers that damage the environment and provide scant economic benefit.

Nestlé has drawn criticism for its bottling operation in California’s San Bernardino National Forest, which federal officials have concluded is “drying up” creeks.

″(The creeks) are visibly different where the water is extracted and where it’s not,” said Michael O’Heaney, executive director of the Story of Stuff Project, a California-based group that makes films about environmental issues.

During California’s drought, he said, “Nestlé wasn’t being asked to curtail its water (in)take at the same time as Californians were being asked to significantly reduce the amount of water they were using.”

Just across the Columbia River from Washington, the residents of Hood River County passed a ballot measure in 2016 to ban commercial water bottling after Nestlé announced plans to build a plant that would extract more than 100 million gallons a year.

Aurora del Val, who helped lead the campaign for the ballot measure, said Nestlé first made inroads with local officials, promising jobs for an area that had seen its economy suffer with the decline of the timber industry.

“This seemed like the golden ticket to having a boomtown again,” she said. “But the more educated people became, the more opposition there was in the town.”

In an emailed statement, Nestlé noted its contributions to state economies — one study showed it provided 900 jobs and had an economic impact of $250 million in Florida in 2018. The company also defended its environmental record, without addressing specific claims that its operations are damaging watersheds.

“We have a proven track record of successful long-term management of water resources in states where we operate,” Nestlé Waters North America spokesman Adam Gaber wrote. “It would make absolutely NO sense for Nestle Waters to invest millions of dollars into local operations just to deplete the natural resources on which our business relies.”

One of Nestlé’s projects is in Osceola Township, Michigan, where local officials are fighting the company’s plan to nearly double the groundwater it extracts from the area.

Locals say that nearby trout streams have turned into mud flats since Nestlé’s arrival, and jobs did not materialize when it chose to build its bottling plant miles away.

“Streams are flooding all over Michigan, except for Twin and Chippewa creeks, which are not,” said Peggy Case, president of the group Michigan Citizens for Water Conservation. “The city aquifer is down 14 feet now, and it’s not recharging. There are people with wells in the area that are starting to run dry. They no longer are as happy with Nestlé as they used to be.”

Even if the company’s operations had no environmental effect, Case said her group would still object.

“They are privatizing water,” she said, “and we are opposed to that.”

In a state where the Flint water crisis is still fresh in people’s minds, water resources are a charged issue, said state Rep. Yousef Rabhi, a Democrat. Rabhi is part of a group of lawmakers pushing a package of bills that would limit the bottled water industry.

Rabhi has filed a bill that would define water as a public trust, instead of a privately owned commodity. Another measure would prohibit shipping bottled water out of the Great Lakes watershed. A third bill would bolster the regulatory authority of the state Department of Natural Resources.

A representative for Absopure, a Michigan-based company that bottles spring water, did not respond to a request for comment. The Michigan Retailers Association said it was not taking a position on the bill, while the Michigan Soft Drink Association and the Michigan Chamber of Commerce did not respond to requests for comment.

In an emailed response, Nestlé said the Michigan bills unfairly “single out one industry, one type of water user, for such restrictions.” The company noted that water bottling accounts for less than 0.01 percent of water use in the state and said its Michigan operations employ 280 workers.

Opponents counter that the industry’s water use is wholly extractive, while other heavy users, such as agriculture, return much of the water they use to the watershed.

Carlyle’s bill in Washington has eight co-sponsors, all Democrats except for state Sen. John Braun, the Republican who represents the Randle community that battled Crystal Geyser. The bill moved through the Senate Agriculture, Water, Natural Resources and Parks Committee. Backers are waiting to see whether it will be added to the Senate voting calendar.

Some lawmakers, however, have expressed misgivings about taking statewide action against a specific business.

This report is a product of Stateline, an initiative of the Pew Charitable Trusts.


Snowstorms boost anemic snowpack in Oregon in just 2 weeks



SALEM, Ore. (AP) – Widespread snowstorms have boosted Oregon’s previously anemic snow pack to almost normal levels statewide in just two weeks.

The biggest improvements in what is called “snow-water equivalent” are in the Hood, Sandy and Lower Deschutes basins.

Those areas were at 26% of normal on Dec. 30 and are now at 90% of normal.

Last year saw something similar unfold in Oregon.

Snowpack was lagging then as well, but a series of storms hit in February that boosted the snow-water equivalent.



Water Crisis Puts Oregon Community At A Crossroads


In a desert far from any city, farmers use groundwater to grow lush green hay. The hay fattens livestock all over the world. But there’s a big problem: The water is drying up. Now scientists warn it will take thousands of years for an aquifer in southeastern Oregon to recover, while residents there are already hurting.

At Marjorie and John Thelen’s house, the well ran dry in 2015.

“We’re not ranchers. We’re not growing hay. We’re just retired in the country,” said 72-year-old Marjorie Thelen, who moved to Oregon with her husband, John, 12 years ago.

Impressed by the mountain views and the rambling sagebrush, they bought a modest house to spend the rest of their days in Harney County, Ore. Then, hay farming boomed around them.

“It was like a gold rush,” said 78-year-old John Thelen, describing how more giant steel sprinklers arrived after a state agency warned of water scarcity in 2016. He dreads the growing season: “It’s like having your arteries cut open and watching the blood run out, when your water is being sprayed to the wind and it’s evaporating away at humongous quantities.”

Like most people in this high, dry valley, the couple gets drinking water out of the ground. When their first well failed, they paid thousands of dollars to drill deeper, only to find high levels of arsenic in the groundwater there. Now, their kitchen is cluttered with plastic bottles. A cup of tea starts with a towering filtration system.

The Thelens say enough is enough: that it’s time for large-scale agriculture in the desert to end.

Meanwhile, Harney County commissioner and hay farmer Mark Owens says gradual and voluntary conservation is critical for the region’s overall economic health. He argues that farms aren’t the final destination for the water.

“I use a lot of water, but the crops that I raise go to Tillamook to produce the milk in the ice cream that you eat or the grains to feed the beef that you eat,” Owens said.

He points out that without farming, the local tax base would collapse, taking schools, roads, libraries and law enforcement with it.

“This issue that’s happening in [the] Harney Basin is going to happen in a community next to you,” he said. “If it’s not, just wait. We have to protect agriculture.”

Aquifer out of balance

Scientists with the U.S. Geological Survey just spent three years studying the Harney Basin, mapping an aquifer starkly out of balance. They found powerful wells draining isolated pockets of water much faster than those spaces refill. But historically, lawmakers divvied up groundwater as if it were coming from some giant subterranean ocean that would never run out.

“I’ll give you an example,” explained Todd Jarvis, director of the Institute for Water and Watersheds at Oregon State University. “In 1904, a Texas Supreme Court ruling found that groundwater was so secret, occult and concealed that it was too difficult to legally control it.”

More than a hundred years later, this mindset is slowly changing. Texas now has groundwater conservation districts. California recently became the first state to pass a law requiring sustainable groundwater management. And at an Oregon dinner table, people in conflict are working toward the state’s first-ever voluntary conservation agreement.

The alternative is to shut off water on the basis of seniority, a centuries-old system that farmers warn would plunge the region into a depression.

Common ground

For Brenda Smith of the High Desert Partnership, finding common ground is all about building relationships.

“It’s a thousand cups of coffee,” said the director of the nonprofit that mediates natural resource conflicts in eastern Oregon. Building consensus is slow work, she admits, “but if you’re going to fight about it, we don’t have that time either.”

For the last three years, people in Harney County have been coming together regularly for meals and meetings. They form a circle, where hay farmers like Owens, who want to change slowly, sit across from homeowners like the Thelens, who want decisive action now, before the wells run dry again. The region’s very survival is on the line as this group tries to reach a compromise, before it’s too late.


The fight to stop Nestlé from taking America’s water to sell in plastic bottles

The Guardian


The network of clear streams comprising California’s Strawberry Creek run down the side of a steep, rocky mountain in a national forest two hours east of Los Angeles. Last year Nestlé siphoned 45m gallons of pristine spring water from the creek and bottled it under the Arrowhead Water label.

Though it’s on federal land, the Swiss bottled water giant paid the US Forest Service and state practically nothing, and it profited handsomely: Nestlé Waters’ 2018 worldwide sales exceeded $7.8bn.

Conservationists say some creek beds in the area are now bone dry and once-gushing springs are reduced to mere trickles. The Forest Service recently determined Nestlé’s activities left Strawberry Creek “impaired” while “the current water extraction is drying up surface water resources”.

Meanwhile, the state is investigating whether Nestlé is illegally drawing from Strawberry Creek and in 2017 advised it to “immediately cease any unauthorized diversions”. Still, a year later, the Forest Service approved a new five-year permit that allows Nestlé to continue using federal land to extract water, a decision critics say defies common sense.

Strawberry Creek is emblematic of the intense, complex water fights playing out around the nation between Nestlé, grassroots opposition, and government officials. At stake is control of the nation’s freshwater supply and billions in profits as Nestlé bottles America’s water then sells it back in plastic bottles. Those in opposition, like author and nutritionist Amanda Frye, increasingly view Nestlé as a corporate villain motivated by “greed”.

“These are people who just want to make money, but they’ve already dried up the upper Strawberry Creek and they’ve done a lot of damage,” she said. “They’re a foreign corporation taking our natural resources, which makes it even worse.”

Critics characterize Nestlé as a “predatory” water company that targets struggling communities with sometimes exaggerated job promises while employing a variety of cheap strategies, like donating to local boy scouts, to win over small town officials who hold the keys to valuable springs.

Its spending on lobbying and campaign contributions at the federal and statelevels totals in the millions annually, the revolving door between the company and government perpetually turns, and it maintains cozy relationships with federal officials from the Forest Service to Trump administration.

Such tactics are partly what’s behind the Forest Service’s Strawberry Creek decision to allow Nestlé to pull water from federal land, said Michael O’Heaney, director of the Los Angeles-based environmental group Story of Stuff, which has sued to stop Nestlé.

Farmers view on junior water rights and the environment

Bend Bulletin

June 18, 2019

This is my 50th year farming in Madras. I’m the son of an Idaho farmer who came to the North Unit Irrigation District (NUID) in 1948. Father took the first delivery of water on the Agency Plains north of Madras in June of 1948 after the Willow Creek siphon was repaired. He was always concerned if NUID would have enough water to raise the crops in all years.

NUID is the second largest irrigation district in Oregon and is junior to the other seven Deschutes Basin irrigation districts. NUID’S 1916 water rights were the last issued and received the smallest per acre allotment. With the best elevation and climate Madras farms have raised the highest economic value crops in Central Oregon: ladino clover, potatoes, grass seed, peppermint, garlic seed, alfalfa, fresh radish, onion and carrot seed.

Now, because of the drought and spotted frog augmented flows, junior North Unit District Irrigation is suffering the most. Our Wickiup Reservoir failed to fill, and our board has set this year’s allotment at 18 inches on Deschutes acres and nine inches on Crooked River rights. While other districts within the basin with 72-inch allotments will receive normal deliveries (equivalent to 72” of rain delivered in the six month irrigation season). It takes at a minimum of over 30 inches to grow most crops.

My farm, like many of my neighbors, must idle crop ground. I have 578.1 acres with water rights and will fallow 182.3 acres or 31.5% of my cropland. However, I paid for the full allotment of $43,112.91. Competing in a world market makes this unsustainable.

For the greatest agricultural economy in Central Oregon to continue to thrive several changes must take place.

Oregon water law must be amended to allow intra-district transfers of abundant water from upstream districts to NUID. One acre of Deschutes County districts’ water will water 3 acres in Jefferson County.

Beneficial use is when water is used for agriculture. When watered cropland becomes urbanized those water rights should go to the junior water right holders as the law was intended, and not held solely for power generation or revenue producing via instream leasing.

Water diversion from storage in NUID’s Wickiup Reservoir to meet “The Habitat Conservation Plan” must be realistic. Considering factors as the drought that NUID has been facing, as well as timelines for completing conservation practices. Continued stored water takings will be catastrophic for NUID’s farmers and its community.

The goal of The Coalition for the Deschutes, lawmakers, and Oregon Water Resources on conserving water in the Deschutes Basin is a priority. It can only happen when those districts with the greatest potential to conserve water do so, and money that is needed to complete those projects is available. Today, funding is a challenge and takes time.

Water is precious and costly for Madras North Unit farmers. We have implemented: 24-hour water measurement and delivery, tail water recovery, gated pipe, ditch piping, low pressure pivots and drip irrigation. As the frog and upper Deschutes instream flow requirements increase, all districts must conserve and share the burden.

Should Jefferson County farmers be the only irrigators to suffer because of the frog? “Junior” does mean junior; but what business can take a 25-30% reduction in its income stream and survive? Our seed warehouses, fertilizer and equipment dealers, our employees, plus Madras and Culver retailers also have a stake in the game. Saving the basin for frogs, fish and environmental concerns can’t be just about NUID. It is about everyone in the basin sharing for the greater good and changing their past ways. Water is recognized as the life blood that benefits agriculture, which in turn provides for wildfire buffers, wildlife habitat and helps the environment. The choice is farms versus houses and urban sprawl.

Junior Water Right holder, but hopeful.

— Gary Harris is a Madras farmer, current Jefferson County Farm Bureau vice president and served on the Land Conservation and Development Commission from 1996-2004.


Columbia River Treaty deadline could shift downstream flood risk management

LEWISTON, Idaho — The way dams and storage reservoirs on the Columbia River and its tributaries are managed could change dramatically in a short five years if negotiators from the United States and Canada don’t strike a deal.

At issue is the Columbia River Treaty, a transboundary agreement that has governed flood risk management and hydropower production for more than five decades. The treaty is evergreen, meaning it doesn’t have an end date unless either nation decides to sever the agreement following a 10-year notice. Neither side has given that notice, but both are engaged in talks led by the U.S. State Department and Global Affairs Canada aimed at updating the treaty, The Lewiston Tribunereports.

Under the current terms, the way flood risk is managed changes dramatically in 2024, and that could affect Idaho water. Right now, three huge storage reservoirs in Canada and one in Montana do much of the heavy lifting when it comes to reducing flood risk in places like Portland and Vancouver, Wash. The treaty was precipitated in part by the 1948 Vanport Flood near Portland, Ore., that killed 15 people and displaced more than 18,000 who lived in a low-lying development.

The dams are managed jointly by the U.S. and Canada, and the treaty dictates that reservoirs behind Mica, Arrow and Duncan dams in British Columbia are drafted to hold back more than 15 million acre-feet of water during spring floods.

The water captured by the dams is released later in the year, and Canada is compensated for 50 percent of the released water’s potential hydropower production as it moves downstream through U.S. dams.

Flood control

Starting in 2024, the Canadian dams will no longer be obligated to provide downstream flood control protection unless the United States first demonstrates it has done all it can to reduce flood risk by capturing spring flows in its reservoirs. Once that happens, the U.S. can “call upon” Canada to capture water behind its dams.

Under such a scenario, reservoirs in the U.S. would likely be drawn down much lower than they are now prior to spring runoff, threatening the potential for them to refill. And it’s not clear which U.S. dams would have to participate.

The U.S. believes its large storage dams named in the treaty — Libby, Hungry Horse and Kerr in Montana; Dworshak, Brownlee and Albeni Falls in Idaho; Grand Coulee in Washington and John Day Dam in Oregon — would have to be tapped to provide additional flood control. Canada interprets the treaty to say all dams on the Columbia River and its tributaries south of the border would have to play a bigger role in flood control. Under that scenario, dozens of other dams and reservoirs would be involved. For example, dams that provide local flood control or capture water for summer irrigation may have to help in systemwide flood control.

Nor do the two sides agree on what constitutes a flood large enough for the U.S. to “call upon” Canada for help. The U.S. side believes flows projected to reach 450,000 cubic feet per second at The Dalles Dam in Oregon would meet the requirement. Canada believes projected flows would have to reach 600,000 cubic feet per second.

The value of water

The flood control regime isn’t the only difference negotiators are trying to bridge. The treaty gives Canada the right to half of the hydropower that can be produced in the U.S. by the water the Canadian dams hold back and then ultimately release — known as the Canadian entitlement. Depending on market prices, the power can be worth $150 million to $300 million per year. Those power payments, plus 30 years of hydropower purchased by U.S. companies at the onset of the treaty, paid for the construction of the dams in Canada.

But the U.S. believes the formula that decides the power value of Canadian water is outdated. Because the formula doesn’t account for things like how much of the Canadian water is spilled at U.S. dams to improve fish passage, American hydropower interests say the power payments sent to Canada are as much as 10 times what they are actually worth. U.S. interests want the treaty changed to reflect that actual value of the Canadian water.

“It’s one of those aspects of the treaty that really calls out for modernization,” said Scott Corwin, executive director of the Public Power Council at Portland. “The assumptions that went into the formula that created the downstream power-benefit sharing have become outdated over time. It’s a lot of power off the federal side of the system that is sent to Canada, and it’s a lot of value to ratepayers of the U.S. that we think should accrue to citizens.”

Canada’s checklist

Canadians also have identified issues they want to solve in negotiations. The dams have dramatically altered local ecosystems and inundated communities and valuable bottomland behind the dams. The Canadians think they should be compensated for that. When Canadian dams are drawn down, water levels fluctuate dramatically, disrupting recreation, fish and wildlife habitat and exposing huge mud flats that can produce dust storms. The construction of Washington’s Grand Coulee Dam prior to the treaty, which Canada did not object to at the time, blocked salmon that once returned to British Columbia rivers, harming Canada’s First Nations. They want fish passage and salmon reintroduction to be considered. The Canadians also say their dams allowed lucrative floodplain development around Portland. They would like compensation for that service.

The Canadian government wants to retain the post-2024 flood control regime that alleviates pressure on its dams and reservoirs. They also want more say in the way Libby Dam in Montana is managed. The dam backs up the Kootenay River more than 40 miles into Canada and creates Lake Koocanusa. (The river is spelled Kootenai in the U.S. and Kootenay in Canada.)


Talks between the two countries began last May. Those talks are centered on the future of flood control, hydropower generation and ecosystem function, which would be a new aim of the treaty. Several years before negotiations began, the U.S. held domestic talks involving Northwest states, 15 American Indian tribes in the Columbia Basin and hydropower and agricultural interests, to develop goals for treaty modernization.

The tribes on both sides of the border wanted a seat at the negotiating table, but the countries chose to exclude them in favor of small teams.

“The tribes were left out of that conversation in the original treaty,” said Scott Hauser, executive director of the Upper Snake River Tribes Foundation. “We feel it’s absolutely imperative they are part of it this time.”

At the outset, the U.S. is seeking two big goals. First, it wants to avoid the 2024 change in flood control regime. Next, it wants to update the way the Canadian entitlement is calculated. The U.S. also wants ecosystem functions be incorporated in river management. The region spends hundreds of millions of dollars annually in efforts to mitigate effects of the dams on threatened and endangered salmon and steelhead.

Idaho’s Sen. Jim Risch sits in a power position as chairman of the Senate Foreign Relations Committee. If the two countries reach an agreement, the updated treaty must be ratified by the Senate. It’s up to Risch to introduce the new treaty if and when it’s complete.

Risch told the Tribune he intends to flex his legislative muscle.

“The chairman of the Foreign Relations Committee decides if it’s going to be heard or not,” he said. “So it’s going to be a good deal for Idaho, or it’s going to be no deal at all.”

He insists the treaty should only cover flood control and hydropower production. If it includes ecosystem function or anything that might threaten Idaho’s sovereignty over its water, Risch said he won’t let the treaty be debated. In fact, he said adding ecosystem function is dead on arrival. That means no more flows for fish and no reintroduction of salmon in places they aren’t now.

“It’s not going to happen,” he said. “The third one (ecosystem function) is not in there now, and it’s not going to be added. The reason I say that is I believe we would — I think almost certainly — end up on the short end of the stick.

He said he has a chummy relationship with President Donald J. Trump and has spoken to him about the treaty. Risch also has constituents in Idaho urging him to use his position to exclude ecosystem functions. The Idaho Legislature passed a nonbinding House Joint Memorial in 2014 saying an updated treaty must protect state sovereignty over water.

A group of more than 20 water users, from public power companies like Clearwater Power and Idaho County Light to southern Idaho irrigators and navigation interests like the Port of Lewiston, want the updated treaty to exclude ecosystem function.

“It just creates another piece of red tape, another legal hurdle to operate the system,” said Paul Arrington, executive director of the Idaho Water Users Association. “Both countries have laws and regulations to deal with these issues, and it should remain as such.”

Even others who want ecosystem function added said they agree with Risch on the need to protect Idaho’s water. For example, the Nez Perce Tribe, the state of Idaho and the federal government are parties to the Nez Perce Agreement that helped settle hundreds of water rights disputes in the state. Part of that agreement calls for the state to send 427,000 acre-feet of upper Snake River water downstream each year to help migrating salmon and steelhead.

“I share his concerns on Idaho’s water,” said Jaime Pinkham, executive director of the Columbia River Inter-Tribal Fish Commission and a member of the Nez Perce Tribe. “Years ago I was part of the (Snake River Basin Adjudication.) We worked long and hard with a diversity of interests to bring some peace to the issue. I am as sensitive as he is in protecting the agreement.”

Pinkham said that doesn’t mean ecosystem function shouldn’t be on the table. He said the talks could still produce provisions to improve conditions for fish in the basin that are beneficial to both sides. He cites the recent agreement between states, tribes and the federal government that will spill more water at Snake and Columbia river dams yet allow hydropower production part of the time as an example of creative solutions that are possible.

“Those are great solutions that help the energy sector and help fish, and if we can find the same kind of creative options in the Columbia River Treaty I want us to stay open to that,” Pinkham said.

Canada’s cards

Canada might seem to be in a position of power. The U.S. wants to maintain the current flood control regime and yet pay its neighbor less for the water it holds during spring runoff.

But Canada may have difficulty fully flexing its muscle. Jim Heffernan, a policy analyst at the Columbia River Inter-Tribal Fish Commission, said Canada also wants to protect its own downstream communities from flood, which may require it to hold back much of the spring flows even before the U.S. asks it to. In addition, he said Canada’s hydropower system was constructed to operate on the regime in place for more than 50 years. That means the country would likely have to run the system in much the same way it does now to maximize its power production.

“Because of the way they built their system, they have to operate it the way they do now,” Heffernan said. “To hurt us they have to hurt themselves.”

Canada also benefits from the water spilled at U.S. dams to help salmon. Heffernan said both sockeye and spring chinook returning to the Okanogan River in Canada have improved because of fish-friendly management of U.S. dams. If salmon were reintroduced above Grand Coulee and Chief Joseph dams so they could recolonize rivers in British Columbia, Heffernan said those runs, too, would benefit from spill at U.S. dams.

“Sockeye salmon and spring chinook returning to the Okanogan watershed in Canada are currently benefiting from changes we made to the system for U.S. stocks,” he said. “That is a really important point, because they gloss over that.”

A chance to restore balance

Many see a moral reason to include ecosystem function. John Osborn, an environmental activist and physician at Vashon Island, Wash., said the treaty negotiations are a chance to right wrongs to American Indian tribes and Canadian First Nations — and to the environment. He said negotations should address fish passage and salmon reintroduction, climate change, reconnecting rivers to their flood plains and better sharing the benefits and burdens of the dams and reservoirs.

“We are truly blessed to live on one of the most remarkable river systems in the world,” Osborn said. “I think it asks us to look at what has happened in really the short amount of time since Lewis and Clark — the profound changes that have benefited some, perhaps many, but come at wrenching costs — and we find a way to bring balance back to the system, and we build reserves. That is going to be absolutely critical in the time of climate change.”