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Modernization of the Columbia River Treaty

Formal Negotiations between Canada and the United States to modernize the Columbia River Treaty began in May 2018. The Canadian and US delegations have met 6 times, in Washington DC (twice), Nelson BC, Vancouver BC, Victoria BC, and Portland OR. This article describes the current Treaty, the factors leading to the current negotiations, and the stated modernization objectives of Canada and the United States.

History of the Treaty

The Columbia River Treaty was ratified on September 16, 1964. Ratification was the culmination of a 20-year process that was initiated by a joint Canada-US reference to the International Joint Commission (IJC) established under the Boundary Waters Treaty. The IJC was asked to consider whether coordinated development of the water resources of the Columbia River basin would yield greater benefits to each of the two countries than they could achieve through unilateral development. The IJC’s 1959 report concluded that coordinated development could yield maximum benefits in two primary areas: flood control and power production. On the strength of that report, in part, negotiations commenced in 1960 and resulted in a signed but unratified treaty in January 1961. Concerns in Canada regarding the merits of the arrangement lead to delay and the eventual negotiation of a Protocol, in early 1964, which supplements the Treaty. The Treaty and the Protocol can be accessed here.

The Columbia River is the 4th largest River in North America, as measured by average annual streamflow volumes. However, its streamflow volumes are the most variable of all North American rivers, as measured by the ratio of maximum streamflow volume to average streamflow volume. Not only are total volumes variable, but the timing of maximum and minimum flow rates can vary widely from year to year. The significant volume and timing uncertainty of the Columbia River makes it difficult to manage flood risk and optimize hydropower production. It was recognized early that storage reservoirs on the Columbia and its tributaries could be used to store water during periods of high streamflows that would otherwise cause flooding, and to release it for hydropower generation when it would be more valuable.

The central question faced by the Canadian and US negotiators was where to build the dams that would provide the necessary storage. The Columbia River and one of its major tributaries, the Kootenay River, both rise in Canada. The Canadian portion of the Columbia River basin comprises only about 15% of the area of the basin, but provides about 30% of the streamflows. For this reason, it was always clear that coordinated development of the Columbia River would entail the construction of large dams in the Canadian part of the Columbia River basin. In the end, 4 storage dams were built pursuant to the Treaty: in Canada they were the High Arrow (now Keenleyside), Mica and Duncan Dams; in the US it was the Libby Dam. This map shows the general layout of the Columbia River Basin and the Treaty dam storage projects.

In addition to specifying the construction of Treaty storage projects, the Treaty also obliges Canada (primarily) and the US (to some extent) to operate their respective Treaty projects to achieve certain flood control and power generation objectives. In compensation for Canada’s ongoing operational obligations, Canada was paid ½ of the estimated avoided flood control damage in the US for an initial 60 year period and receives, on an annual basis, ½ of the incremental power generation in the US (referred to as the Canadian Entitlement). Through an agreement between Canada and the Province of British Columbia, BC receives both the benefits and burdens of the Treaty. In addition, BC Hydro is the entity designated by Canada to fulfill Canada’s Treaty obligations; in the US the designated entities are United States Army Corps of Engineers and the Bonneville Power Administration. The Treaty, and the cooperative nature of the working relationship between the Canadian and US entities, has frequently been lauded as an exemplary model of cooperative international water resource management.

Current Negotiations

Current negotiations to modernize the Treaty have been prompted by a number of factors. First, each of Canada and the US have had the right since 2014, and only since 2014, to unilaterally terminate the Treaty with 10 years notice. Neither party has exercised that right, but the possibility of doing so prompted Canada and the US, in the years prior to 2014, to consider the current Treaty and potential modifications or alternatives to it.

Second, Canada’s flood control obligations change significantly in 2024. Until then, Canada undertakes flood control operations at its Treaty dams that are planned in regard to a fixed volume of storage space made available for that purpose; additional storage space may be made available on an ad hoc basis when required. From 2024 Canada no longer has an obligation to provide planned flood control operations but instead only needs to provide ad hoc operations; in the absence of a modernized Treaty, flood risk on the lower reaches of the Columbia River will increase after 2024.

Third, and perhaps most compelling from the perspective of stakeholders, is the possibility of giving more explicit weight to social, environmental and Indigenous values in the operation of Treaty projects. While few if any stakeholders would prefer to see a complete restoration of natural stream flows unregulated by Treaty projects, many would prefer to see more explicit weight given to non-power, non-flood control factors in the operation of Treaty projects. The relevance of such factors was recognized by the IJC in the 1950s, but it was unable to conclude that coordinated efforts on both sides of the border would yield greater benefits to the two countries relative to what they could achieve unilaterally. The focus on non-power and non-flood control factors is evident in the decision records of the Province of British Columbia (here) and the US Entity (here), confirming their respective interests in modernizing the Treaty. It is apparent that sixty years later, both countries are interested in re-assessing the IJC’s 1959 conclusions, and perhaps reflecting modern 21st century values in Treaty operations.

Lawson Lundell is supporting BC Hydro and the Province, and participating, in the negotiations.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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