Columbia River Basin
The Columbia River Treaty was signed by the United States and Canada on 17 January 1961. But, the Columbia River Treaty was not implemented until three years later, in 1964, when the province of British Columbia in Canada agreed to the Treaty. The final negotiations resulted in: (1) a Protocol to the Columbia River Treaty that clarified and limited the application of certain provisions of the Treaty; (2) an agreement between the Canadian federal government and the province of British Columbia that established and clarified certain rights and obligations; and (3) the sale of the Canada’s right under the Columbia River Treaty to certain downstream U.S. power benefits to U.S. electric utilities for a period of 30 years.
The Treaty Relating to Boundary Waters between the United States and Canada is also relevant to the Columbia River Basin. It was signed by the United Kingdom and the United States in 1909, and it set out rules for dispute resolution regarding issues arising from the use, obstruction or diversion of the boundary waters of Canada and the United States. The Boundary Waters Treaty established the International Joint Commission (“IJC”). The IJC is composed of six commissioners, with the United States and Canada each appointing three commissioners.
The Columbia River Treaty was signed by the United States and Canada, the only two countries that border the Columbia River Basin.
The total area of the Columbia River Basin is 668,400 square kilometers. Approximately 101,900 square kilometers of the Basin (or 15.25%) is in Canada, while 566,500 square kilometers of the Basin (or 84.75%) is in the United States. The Columbia River Basin covers area in the U.S. states of Washington, Oregon, Idaho, Montana, Nevada, Wyoming and Utah and the Canadian province of British Columbia.
Article XIV of the Columbia River Treaty directs the United States and Canada to each designate an entity or entities which are empowered and charged with the duty to formulate and carry out the operating arrangements necessary to implement the Treaty. The countries may designate more than one entity if desired. The Canadian Entity is British Columbia Hydro and Power Authority and the U.S. Entities are the Administrator of the Bonneville Power Administration (in the U.S. Department of the Interior) and the Division Engineer, North Pacific Division of the U.S. Army Corps of Engineers. The Bonneville Power Administration markets power from federal projects in the U.S. part of the Columbia Basin, while the U.S. Army Corps of Engineers oversees flood control matters and other major civil engineering projects occurring on the Columbia River. The British Columbia Hydro and Power Authority is responsible for the operation of the three Canadian dams required under the Treaty (see Functions).
The duties of the Entities, pursuant to Article XIV of the Columbia River Treaty, include:
- Coordination of plans and exchange of information relating to facilities to be used in producing and obtaining the benefits contemplated by the Columbia River Treaty;
- Calculation of and arrangements for the delivery of hydroelectric power to which Canada is entitled for providing flood control;
- Calculation of the amounts payable to the United States for standby transmission services;
- Consultation on requests for variations in the operation of the water storage;
- The establishment and operation of a hydrometeorological system;
- Assistance and cooperation with the Permanent Engineering Board (see Data Information Sharing, Exchange, and Harmonization) in the discharge of its functions;
- Periodic calculation of accounts;
- Preparation of hydroelectric operating plans and flood control operating plans for the Canadian storage, as well as determination of the downstream power benefits to which Canada is entitled;
- Preparation of proposals for Canada to dispose of its downstream power benefits in the United States and the carrying out of any disposal that is authorized or any exchange of dependable hydroelectric capacity and average annual usual hydroelectric energy that is provided for;
- Making appropriate arrangements for delivery to Canada of the downstream power benefits to which Canada is entitled, including such matters as load factors for delivery, times and points of delivery, and calculation of transmission loss; and
- Preparation and implementation of detailed operating plans that may produce results more advantageous to both countries than those that would arise from operation under the Assured Operating Plans (see Functions).
Lastly, each Entity is authorized to make maintenance curtailments, and must give notice to the other Entity of the reason for the maintenance and the probable duration (except in the case of emergency maintenance).
The focus of the Columbia River Treaty is on hydroelectricity and flood control. There is no direct treatment of other interests such as fish protection, irrigation, and other environmental concerns, but the Treaty allows the U.S. and Canadian Entities to incorporate a broad range of interests into the Detailed Operating Plans that are agreed to prior to each operating year.
i) Requirements of Canada
Under the Columbia River Treaty, Canada was required to construct and operate 15.5 million acre-feet of reservoir storage in the upper Columbia River Basin for power generation and flood control downstream in Canada and the U.S. To achieve this storage, Canada was required to construct the following dams, all located within the province of British Columbia:
- On the Columbia River near Mica Creek, a dam with approximately 7 million acre-feet of storage (“Mica Dam”);
- Near the outlet of Arrow Lakes, a dam with approximately 7.1 million acre-feet of storage (“Arrow Dam”); and
- Near Duncan Lake, a dam with approximately 1.,4 million acre-feet (“Duncan Dam”).
The Treaty allows Canada substantial flexibility to operate its individual projects as long as the net flow requirement at the U.S. border is met.
ii) Requirements of the United States
The Columbia River Treaty requires the United States to: (1) give Canada one-half of the estimated increase in U.S. downstream power benefits as determined five years in advance (the “Canadian Entitlement”) and (2) make a monetary payment for one-half of the value of the estimated future flood damages prevented in the United States during the first 60 years of the Treaty. Instead of receiving an annual payment for the flood control benefits, Canada chose to receive lump sum payments, totaling $64.4 million, for half of the estimated flood damage prevented in the U.S. through the year 2024. For additional information, see Benefit Sharing. Additionally, the United States must maintain and operate the hydroelectric facilities constructed on the main arm of the Columbia River in the U.S. in a manner that “makes the most effective use of the improvement in stream flow resulting from operation of the Canadian storage for hydroelectric power generation in the United States of America power system.” Article XII of the Columbia River Treaty also permitted the U.S. to construct the Libby Dam on the Kootenai River in the U.S. state of Montana for flood control purposes.
iii) Planning Mechanisms under the Columbia River Treaty
The Columbia River Treaty required the United States and Canada to prepare annually an Assured Operating Plan (“AOP”) for the operation of storage under the Treaty six years in advance of each operating year. The AOP is developed to achieve optimum power and flood control benefits for the United States and Canada, and to define the amount of the Canadian Entitlement to downstream power benefits to be delivered for that year. The Columbia River Treaty also allows the Entities to develop Detailed Operating Plans (“DOP”) for each upcoming year. The goal of the DOP is to determine annually whether there is a plan for operation that may achieve results more advantageous to the United States or Canada than the previously planned AOP. In formulating the DOP, the Entities may take into consideration factors besides hydroelectric power and flood control, such as fish protection, recreation, and the environment.
iv) “Called Upon” Provision for Flood Control Takes Effect in 2024
Absent a new agreement, Article IV (3) of the Columbia River Treaty provides that Canada’s duty to provide storage for flood control for the United States will expire in 2024 and will be replaced with “Called Upon” storage by Canada. Under “Called Upon” storage, the U.S. must pay for the operating costs and any losses incurred by Canada when it requests Canada’s flood control operations. Thus, beginning in 2024, the U.S. must again begin paying for Canada’s flood control storage on an as-needed basis.
The United States and Canada each designated Entities that are responsible for carrying out the operating arrangements under the Columbia River Treaty. See Legal Personality. See also Data Information Sharing, Exchange, and Harmonization, discussing the Permanent Engineering Board’s role in monitoring and reporting under the Treaty.
i) The International Joint Commission (“IJC”)
The IJC assists the governments of Canada and the United States in finding solutions to problems that relate to the many rivers that lie along or flow across the border between the two countries, not just the Columbia River Basin. The IJC was established by the 1909 Boundary Waters Treaty. It is composed of six members—with three appointed by the President of the United States (with the advice and approval of the Senate) and three appointed by Governor in Council of Canada (on the advice of the Prime Minister). The IJC is bound by the Boundary Waters Treaty in its efforts to resolve disputes, and IJC members must act impartially, rather than representing the views of their respective governments. The IJC has the duty to issue authorizations for certain uses of water, while protecting competing interests in accordance with the Boundary Waters Treaty. For example, the IJC may approve applications for dams or canals and can set conditions limiting water levels and flows. Additionally, the IJC investigates water pollution in lakes and rivers along the Canada-United States border when asked to do so by either government.
In addition to its primary role regarding the boundary waters of Canada and the United States, the two governments have also asked the IJC to investigate air pollution problems in the boundary regions. In 1991, the two governments signed the Canada-United States Air Quality Agreement and set up an Air Quality Committee to make reports every two years. The governments also asked the IJC to invite comments on the Air Quality Committee’s reports from individuals and groups and to prepare summaries of those views.
The IJC is involved with many other rivers or basins in addition to the Columbia River Basin. The Great Lakes-St. Lawrence River system is also a significant focus for the IJC. Under the Great Lakes Water Quality Agreement, the IJC is tasked with reviewing Remedial Action Plans, which are strategies prepared by Canada and the United States to clean up problem areas and promote sustainable development in the Great Lakes region. In the West, the IJC has established operating conditions for dams on the Kootenai and Osoyoos Rivers (which cross through the U.S. states of Washington, Idaho, and Montana and the province of British Columbia). The IJC has helped establish rules for sharing the benefits of the St. Mary and Milk Rivers in the Canadian provinces of Alberta and Saskatchewan and the U.S. state of Montana. In the East, the IJC regulates dams on the St. Croix River, which flows through the Canadian Province of New Brunswick and the U.S. state of Maine. In the Midwest, the IJC helps regulate the sharing of benefits from the Souris River among the Canadian provinces of Saskatchewan and Manitoba and the U.S. state of North Dakota. The IJC also sets emergency water levels for the Rainy Lake system, which crosses through the U.S. state of Minnesota, as well as the Canadian provinces of Manitoba and Ontario.
ii) Pacific Northwest-Southwest Intertie
The operation of the Canadian dams pursuant to the Columbia River Treaty created additional power in the United States, with a sizeable portion of the Canadian Entitlement being sold to California. Thus, the Pacific Northwest-Southwest Intertie, a system of high-voltage transmission lines that carry large amounts of electricity, was built to handle this additional power. The Intertie allowed the Canadian Entitlement to be exported or resold in California, when British Columbia and the Northwestern United States had no need for the additional power.
iii) PNCA Agreement
The Columbia River Treaty also triggered the creation of the U.S. Pacific Northwest Coordination Agreement (“PNCA”), which aims to optimize the operation of the hydropower projects in the Pacific Northwest through improved water flows from Canada. Under the PNCA, most Pacific Northwest hydropower projects operate as though they were owned by one utility—using regional diversity in stream flows and power loads, as well as the ability to optimize all reservoir storage operations to one power load. Sixteen parties, including the U.S. Army Corps of Engineers, the Bonneville Power Administration, and the U.S. Bureau of Reclamation, are members of the PNCA. The PNCA was initially signed in 1964 and has been renewed once in 1997.
Decisions are made primarily by the U.S. and Canadian Entities. See Legal Personality.
Article XVI of the Columbia River Treaty provides that a dispute or difference that arises under the Treaty may be referred by either the United States or Canada to the IJC for a decision. If the IJC does not render a decision within three months of the referral, or within such other period as may be agreed upon by the United States and Canada, either country may submit the dispute to arbitration by providing written notice to the other country.
The Columbia River Treaty mandates that arbitration must be by a tribunal composed of a member appointed by Canada, a member appointed by the United States and a member appointed jointly by the United States and Canada who shall be Chairman. If within six weeks of the delivery of a notice of arbitration, either country has failed to appoint its member to the arbitral tribunal, or they are unable to agree upon the member who is to be Chairman, either the United States or Canada may request that the President of the International Court of Justice appoint the member(s). Decisions of the IJC or of an arbitration tribunal (by a majority of members) are binding and definitive on the parties. The United States and Canada may agree, by an exchange of notes, to use alternative procedures for settling differences arising under the Columbia River Treaty, including referring disputes to the International Court of Justice for a decision.
i) Trail Smelter Case
The Trail Smelter case, though it predated ratification of the Columbia River Treaty, illustrates the IJC’s ability to resolve disputes under the Boundary Waters Treaty.
Starting in 1906, Canadian company Consolidated Mining and Smelting Company of Canada, Limited operated a zinc and lead smelter in Trail, British Columbia near the Columbia River, approximately seven miles north of the United States border. In 1925 and 1927, the company built over 400-foot-high stacks on the smelter, which emitted sulfur dioxide. Sulfur dioxide fumes were occasionally carried south to the town of Northport in Washington State, where they caused damage to private farms, orchards, and timberlands. Responding to pressure from Northport residents, the governments of Canada and the United States agreed in 1928 to submit the dispute to the IJC, despite the private nature of the dispute (where both the party causing the harm and the parties being harmed were private citizens.) Article IX of the Boundary Waters Treaty allows Canada or the United States to submit a dispute to the IJC, so that the IJC may investigate the dispute. However, the IJC’s conclusions in a case submitted under Article IX are not binding decisions and have no authority over the two governments. The IJC issued a report in 1931 recommending that the smelter pay $350,000 for damages caused up to 1 January 1932 to the citizens in Northport, Washington. The Northport residents were not satisfied and pressed for arbitration.
The United States and Canada subsequently agreed to submit the dispute to binding arbitration. While the parties could have submitted the dispute to the IJC for binding arbitration under Article X of the Boundary Waters Treaty, they opted instead for an ad hoc three-member arbitration panel. The tribunal was to “apply the law and practice followed in dealing with [similar] questions in the United States of America as well as international law and practice, and [it] shall give consideration to the desire of the high contracting parties to reach a solution just to all parties concerned.” The tribunal issued its final decision in 1941, building upon a prior decision concerning these issues released by the tribunal in 1938. It confirmed the IJC’s recommendation that the smelter pay the United States US $350,000 for damages, and it also assessed additional damages in the amount of US $78,000 for damages caused from 1932 until 1937. The tribunal also ruled that the smelter must control its downdrafts and monitor sulfur dioxide so that concentrations in Washington State did not become excessive. Canada accepted the decision and paid the damages. The United States used the money to satisfy the claims of individual property owners in Washington State against the smelter.
Much of the data sharing under the Columbia River Treaty is performed by the Permanent Engineering Board. The Columbia River Treaty established the Permanent Engineering Board, consisting of four members—two appointed by the United States and two appointed by Canada. The Permanent Engineering Board is tasked with the following duties:
- Assemble records of the flows of the Columbia River and the Kootenay River at the Canada-United States boundary;
- Report to the United States and Canada whenever there is substantial deviation from the hydroelectric and flood control operating plans and, if appropriate, include in the report recommendations for remedial action and compensatory adjustments;
- Assist in reconciling differences concerning technical or operational matters that may arise between the U.S. and Canadian Entities;
- Make periodic inspections and require reports from the U.S. and Canadian Entities in order to ensure that the objectives of the Columbia River Treaty are being met;
- Make reports, at least once a year, to the United States and Canada of the results being achieved under the Columbia River Treaty and make special reports concerning any matter which it considers should be brought to the countries’ attention; and
- Investigate and report with respect to any other matter that comes within the scope of the Columbia River Treaty, at the request of either the United States or Canada.
The Permanent Engineering Board must comply with directions relating to its administration and procedures that are agreed upon by the United States and Canada.
The Permanent Engineering Board is responsible for providing certain notifications to the United States and Canada. See Data Information Sharing, Exchange, and Harmonization.
With regard to arbitration, the Columbia River Treaty notes that the funding of administrative support for a tribunal and the remuneration and expenses of its members shall be agreed upon by the United States and Canada in an exchange of notes. The Columbia River Treaty contains no further explanation as to cost sharing for operational costs.
With regards to the IJC, the Boundary Waters Treaty, in Article XII, provides that “[t]he salaries and personal expenses of the Commission and of the secretaries shall be paid by their respective Governments, and all reasonable and necessary joint expenses of the Commission, incurred by it, shall be paid in equal [parts by the United States and Canada].”
i) 50/50 Share of Downstream Power Benefits
Article V of the Columbia River Treaty instructs that Canada is entitled to one-half of the downstream power benefits under the Treaty (the Canadian Entitlement). The United States must deliver to Canada, at a point on the Canada-United States boundary near Oliver, British Columbia (or another agreed upon place), the downstream power benefits to which Canada is entitled, less transmission loss. If Canada opts to sell its entitlement to downstream power to United States purchasers, the United States will not deliver this power to Canada.
ii) Payment for Flood Control
For the flood control that Canada provides to the United States, the United States was required to pay Canada US $64.4 million—consisting of US $1,200,000 for the Mica Dam, US $52,100,000 for the Arrow Dam and US $11,100,000 for the Duncan Dam. This money became due when Canada commenced the operation of storage after the completion of the three dams. If full operation of the dams was not commenced within the time specified by the Columbia River Treaty, the payment was to be reduced according to a discount formula set out in the Treaty.
In addition to the flood control discussed above which has already been paid for by the United States, the U.S. Entities may call upon Canada to operate additional storage in the Columbia River Basin in Canada, within the limits of existing facilities, in order to meet flood control needs for the duration of the flood period (referred to as “Called Upon” flood control.) For this “Called Upon” flood control, the United States must pay Canada, for each of the first four flood periods for which a call is made, US $1,875,000 and deliver to Canada, for each and every call made, electric power that is equal to the hydroelectric power lost by Canada as a result of operating the storage to meet the flood control need (with delivery to be made when the loss of hydroelectric power occurs).
The Columbia River Treaty also contains a “Called Upon” flood control provision that will automatically be triggered 60 years after the Treaty’s ratification date. After the 60 years, for each flood period where flood control is provided by Canada to the United States upon the request of a U.S. Entity, the United States must pay Canada the operating cost incurred by Canada in providing the flood control and must provide compensation for the economic loss to Canada arising directly from Canada foregoing alternative uses of the storage used to provide the flood control. See Functions.
The Columbia River Treaty provides that the Permanent Engineering Board shall “make periodic inspections and require reports … from the entities with a view to ensuring that the objectives of the Treaty are being met.” See Data Information Sharing, Exchange, and Harmonization.
i) Public Participation with the IJC
Article XII of the Boundary Waters Treaty requires that the IJC give all interested parties a “convenient opportunity to be heard” on matters under consideration. The IJC invites public participation and advice when it undertakes studies, deals with approval orders, and prepares reports to governments. Citizens, both specialists and non-specialists, serve on IJC boards and task forces. Whenever the IJC is asked to approve a plan for a dam or other structure along the boundary waters, it asks for public comment. The IJC boards that monitor these structures, once built, also hold regular public meetings.
ii) Columbia Basin Trust (“CBT”)
The CBT was created in 1995, with the aim to promote the social, economic, and environmental well-being in the Canadian portion of the Columbia River Basin. The CBT was formed pursuant to Canada’s Columbia Basin Trust Act and is governed by a 12-member Board of Directors (with all of the directors appointed by the government of the Province of British Columbia and all of whom must reside in the Columbia Basin). The CBT has also established Advisory Committees in the areas of: Social, Economic, and Environmental, Youth and Water. Based on negotiations with the Province of British Columbia and local governments, a binding agreement was reached, which resulted in CAD $276 million to finance the construction of power projects, CAD $45 million to be used as a CBT endowment, and CAD $2 million per year from 1996 to 2010 for operations.
The Columbia River Treaty has no specified end date. But, either the United States or Canada may cancel the Treaty after 60 years (i.e., in 2024), provided that notice is provided ten years in advance. Certain terms of the Columbia River Treaty will continue on during the useful life of the dams, even if the Treaty is terminated. This includes the Called Upon flood control provisions, Libby Dam coordination obligations, and Kootenay River diversion rights. As part of the Called Upon flood control provisions, Canada must provide flood control operation for the United States as long as the need exists and the relevant dam exists, but the United States must pay Canada’s operating costs and resulting economic losses. If the Columbia River Treaty is terminated, the Mica, Duncan, Arrow, and Libby Dams will be subject to the Boundary Waters Treaty.
Upon termination of the Columbia River Treaty, the Canadian Entitlement would cease to exist, and the United States would retain any increases in U.S. downstream power benefits resulting from Canadian storage. But, Canada would also be able to operate its projects to focus more on Canadian power and flood control, as well as other benefits. If the Columbia River Treaty is not terminated in 2024, Canada will continue to operate storage for downstream power and flood control benefits according to the AOPs, and the United States will continue to provide the Canadian Entitlement of half of all downstream power benefits. Flood control will be changed to Called Upon storage in 2024, regardless of whether the Columbia River Treaty is cancelled or not.
i) Sale of the Canadian Entitlement
Prior to the ratification of the Columbia River Treaty in 1964, a consortium of 37 public and four private utilities in the United States contracted to purchase the Canadian Entitlement for the 30 years following the scheduled completion date of the Mica, Duncan and Arrow Dams, agreeing to pay Canada an upfront lump sum of U.S. $254.4 million. Canada was able to use this money it received upfront to build these dams, as required under the Columbia River Treaty. The sale agreement expired in 2003, after which the Canadian Entitlement was fully delivered to British Columbia.
ii) Future of the Columbia River Treaty
The U.S. and Canadian Entities are reviewing future scenarios regarding the Columbia River Treaty. This joint effort has been named the 2014/2024 Columbia River Treaty Review. The Entities launched the first phase of the review with technical studies designed to establish baseline information of what power and flood control operations might look like after 2024 with and without the Treaty. The Phase 1 Report was published in July 2010 and contains analysis of expected implications on Columbia River operations in the post-2024 context. The Bonneville Power Administration and the U.S. Army Corps of Engineers plan to host public workshops to discuss the initial findings and seek input on the direction for the second phase of studies.
- Columbia River Treaty, available at http://www.ccrh.org/comm/river/docs/cotreaty.htm.
- Columbia River Treaty: History and 2014/2024 Review—Bonneville Power Administration and U.S. Army Corps of Engineers, available at http://www.bpa.gov/Corporate/pubs/Columbia_River_Treaty_Review_-_April_2008.pdf.
- Columbia River Treaty: 2014/2024 Review - Phase 1 Report, available at http://www.bpa.gov/corporate/pubs/Phase1Report_7.28.2010.pdf.
- The Boundary Waters Treaty of 1909, available at http://www.ijc.org/rel/agree/water.html#text.
- International Joint Commission - Who We Are, available at http://www.ijc.org/en/background/ijc_cmi_nature.htm.
- The Trail Smelter Case (United States, Canada), available at http://untreaty.un.org/cod/riaa/cases/vol_III/1905-1982.pdf.
- Columbia Basin Trust: About Us, available at http://www.cbt.org/About_Us/.
- Columbia Basin Water Management Division—U.S. Army Corps of Engineers, available at http://www.nwd-wc.usace.army.mil/.
- Northwest Power and Conservation Council: Columbia River Treaty – Design and Purposes, available at http://www.nwcouncil.org/history/columbiarivertreaty.asp.
- Eve Vogel, Regionalization and Democratization Through International Law: Intertwined Jurisdictions, Scales and Politics in the Columbia River Treaty, 9 OR. REV. INT’L L. 337 (2007).
- Noah D. Hall, The Centennial of the Boundary Waters Treaty: A Century of United States-Canadian Transboundary Water Management, 54 WAYNE L. REV. 1417 (2008)