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The Columbia River Treaty’s adaptive capacity for fish conservation

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Major international agreements governing the shared use of transboundary waters rarely deal explicitly with species conservation, yet they often have major implications for aquatic, avian, and terrestrial species. To meet conservation objectives, it may be necessary to find flexibility, or “adaptive capacity” within these agreements to enable conservation measures. This study applies incident analysis to assess the adaptive capacity of the Canada–US Columbia River Treaty (CRT) to respond to evolving species conservation needs. Like many other transboundary agreements, the terms of the CRT cover power production, flood protection and irrigation, but not species conservation. We analyze the discourses and normative expectations of politically relevant actors regarding an international conflict with Canada over the use of flow modifications by US agencies to conserve an endangered species of sturgeon. Four distinct discourse coalitions formed around the issue, each with its own interpretation of the problem, normative expectations about the rules that should apply, and power to shape decision making. The incident highlights how domestic conservation laws can directly impinge upon an international transboundary water treaty, and how flexibility can be found within existing institutional arrangements for conservation purposes. However, new norms for fish conservation were not fully incorporated into the CRT and decision-making authority for conservation-related disputes became more entrenched in the Treaty’s implementing agencies, potentially further excluding actors who might support fish conservation, such as environmental organizations and Indigenous governments. We recommend strategies to increase the adaptive capacity of the CRT and similar international agreements to enable species conservation.

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Appendix A: Key articles and sections of the Columbia River Treaty

Columbia River Treaty, Article VII

2.1 Determination of Downstream Power Benefits

  1. (1)

    The downstream power benefits shall be the difference in the hydroelectric power capable of being generated in the USA with and without the use of Canadian. Storage, determined in advance and is referred to in the Treaty as the downstream power benefits.

  2. (2)

    For the purpose of determining the downstream power benefits:

    1. (a}

      The principles and procedures set out in Annex B shall be used and followed;

    2. (b}

      The Canadian storage shall be considered as next added to 13.000.000 acre-feet of the usable storage listed in Column 4 of the table in Annex B;

    3. (c}

      The hydroelectric facilities included in the base system shall be considered as being operated to make the most effective use for hydroelectric power generation of the improvement in stream flow resulting from operation of the Canadian storage.

  3. (3)

    The downstream power benefits to which Canada is entitled shall be delivered as follows:

    1. (a}

      Dependable hydroelectric capacity as scheduled by the Canadian entity. and

    2. (b}

      Average annual usable hydroelectric energy in equal amounts each month. or in accordance with a modification agreed upon under paragraph (4).

  4. (4)

    Modification of the obligation in paragraph (3) (b) may be agreed upon by the entities.

Columbia River Treaty, Article XII

3.1 Kootenai River development

  1. (1)

    The USA for a period of five years from the ratification date has the option to commence construction of a dam on the Kootenai River near Libby, Montana, to provide storage to meet flood control and other purposes in the USA. The storage reservoir of the dam shall not raise the level of the Kootenai River at the Canada–USA boundary above an elevation consistent with a normal full pool elevation at the dam of 2,459 feet, USA Coast and Geodetic Survey datum. 1929 General Adjustment. 1947 International Supplemental Adjustment.

  2. (2)

    All benefits which occur in either country from the construction and operation of the storage accrue to the country in which the benefits occur.

  3. (3)

    The USA shall exercise its option by written notice to Canada and shall submit with the notice a schedule of construction which shall include provision for commencement of construction, whether by way of railroad relocation work or otherwise, within five years of the ratification date.

  4. (4)

    If the USA exercises its option, Canada in consideration of the benefits accruing to it under paragraph (2) shall prepare and make available for flooding the land in Canada necessary for the storage reservoir of the dam within a period consistent with the construction schedule.

  5. (5)

    If a variation in the operation of the storage is considered by Canada to be of advantage to it the USA shall, upon request, consult with Canada. If the USA determines that the variation would not be to its disadvantage it shall vary the operation accordingly.

  6. (6)

    The operation of the storage by the USA shall be consistent with any order of approval which may be in force from time to time relating to the levels of Kootenay Lake made by the International Joint Commission under the Boundary Waters Treaty, 1909.

  7. (7)

    Any obligation of Canada under this Article ceases if the USA, having exercised the option, does not commence construction of the dam in accordance with the construction schedule.

  8. (8)

    If the USA exercises the option it shall commence full operation of the storage within seven years of the date fixed in the construction schedule for commencement of construction.

  9. (9)

    If Canada considers that any portion of the land referred to in paragraph (4) is no longer needed for the purpose of this Article Canada and the USA, at the request of Canada, shall consider modification of the obligation of Canada in paragraph (4).

  10. (10)

    If the Treaty is terminated before the end of the useful life of the dam Canada shall for the remainder of the useful life of the dam continue to make available for the storage reservoir of the dam any portion of the land made available under paragraph (4) that is not required by Canada for purposes of diversion of the Kootenay River under Article XI II.

Columbia River Treaty, Article XIV

4.1 Arrangements for Implementation

  1. (1)

    Canada and the USA shall each, as soon as possible after the ratification date, designate entities and when so designated the entities are empowered and charged with the duty to formulate and carry out the operating arrangements necessary to implement the Treaty. Either Canada or the USA may designate one or more entities. If more than one is designated the powers and duties conferred upon the entities by the Treaty shall be allocated among them in the designation.

  2. (2)

    In addition to the powers and duties dealt with specifically elsewhere in the Treaty the powers and duties of the entities include:

    1. (a)

      Coordination of plans and exchange of information relating to facilities to be used in producing and obtaining the benefits contemplated by the Treaty,

    2. (b)

      Calculation of and arrangements for delivery of hydroelectric power to which Canada is entitled for providing flood control,

    3. (c)

      Calculation of the amounts payable to the USA for standby transmission services,

    4. (d)

      Consultation on requests for variations made pursuant to Articles XII (5) and XIII (6),

    5. (e)

      The establishment and operation of a hydrometeorological system as required by Annex A,

    6. (f)

      Assisting and cooperating with the Permanent Engineering Board in the discharge of its functions,

    7. (g)

      Periodic calculation of accounts,

    8. (h)

      Preparation of the hydroelectric operating plans and the flood control operating plans for the Canadian storage together with determination of the downstream power benefits to which Canada is entitled,

    9. (i)

      Preparation of proposals to implement Article VIII and carrying out any disposal authorized or exchange provided for therein,

    10. (j)

      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,

    11. (k)

      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 plans referred to in Annexes A and B.

  3. (3)

    The entities are authorized to make maintenance curtailments. Except in case of emergency, the entity responsible for a maintenance curtailment shall give notice to the corresponding Canadian or USA entity of the curtailment, including the reason therefor and the probable duration thereof and shall both schedule the curtailment with a view to minimizing its impact and exercise due diligence to resume full operation.

  4. (4)

    Canada and the USA may by an exchange of notes empower or charge the entities with any other matter coming within the scope of the Treaty.

Columbia River Treaty, Article XVI

5.1 Settlement of differences

  1. (1)

    Differences arising under the Treaty which Canada and the USA cannot resolve may be referred by either to the International Joint Commission for decision.

  2. (2)

    If the International Joint Commission does not render a decision within three months of the referral or within such other period as may be agreed upon by Canada and the USA, either may then submit the difference to arbitration by written notice to the other.

  3. (3)

    Arbitration shall be by a tribunal composed of a member appointed by Canada. a member appointed by the USA and a member appointed jointly by Canada and the USA who shall be Chairman. If within six weeks of the delivery of a notice under paragraph (2) either Canada or the USA has failed to appoint its member. or they are unable to agree upon the member who is to be Chairman. Either Canada or the USA may request the President of the International Court of Justice to appoint the member or members. The decision of a majority of the members of an arbitration tribunal shall be the decision of the tribunal.

  4. (4)

    Canada and the USA shall accept as definitive and binding and shall carry out any decision of the International Joint Commission or an arbitration tribunal.

  5. (5)

    Provision for the administrative support of a tribunal and for remuneration and expenses of its members shall be as agreed in an exchange of notes between Canada and the USA.

  6. (6)

    Canada and the USA may agree by an exchange of notes on alternative procedures for settling differences arising under the Treaty, including reference of any difference to the International Court of Justice for decision.

5.2 Article V of the protocol agreement to the Columbia River Treaty

Inasmuch as control of historic streamflows of the Kootenay River by the darn provided for in Article XII(I) of the Treaty would result in more than 200,000 kilowatt years per annum of energy benefit downstream in Canada, as well as important flood control protection to Canada, and the operation of that dam is therefore of concern to Canada, the entities shall, pursuant to Article XIV(2) (a) of the Treaty, cooperate on a continuing basis to coordinate the operation of that dam with the operation of hydroelectric plants on the Kootenay River and elsewhere in Canada in accordance with the provisions of Article XII(5) and Article XII(6) of the Treaty.

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Morton, C., Rutherford, M. The Columbia River Treaty’s adaptive capacity for fish conservation. Int Environ Agreements 23, 43–75 (2023).

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