Residents of our state did not cede the right to access and enjoyment of public waterways to utilities operating dams on the Columbia or other rivers. But Grant County Public Utility District officials would have you believe they are the sole arbiters of who gets to fish, boat and access a 36-mile stretch of the Columbia River from Wanapum Dam to Rock Island Dam.
They are not.
The public right to access and use the Columbia River for recreation and commerce pre-date Wanapum Dam, and the state. That right continues today, regardless of the utility’s 10-month-old edict declaring the shoreline and river closed to the general public.
I’m referring to the Grant County Public Utility District’s decision last February to close that stretch of river after finding a crack in Wanapum Dam. While law enforcement may have had some authority for a river and shoreline closure at the time, that limited authority ended when and where the emergency no longer existed. Today, the closure is not only unnecessary, it is also clearly a direct violation of the federal law dealing with navigable waterways.
But before I get into the legal and logical debate on the closure, let’s look back at what transpired.
On Feb. 24, a utility employee at Wanapum Dam noticed a curb misaligned on the road atop the dam’s spillway. Three days later, divers discovered the dam was cracked 75 feet below the waterline. As the agency began drawing down water to relieve pressure, some sight-seers decided it was OK to explore the mudflats and areas that became exposed. Sunken boats became visible, and some American Indian sites were exposed. A few sight-seers became stuck in the mud and needed to be rescued.
As a result, utility officials issued its edict prohibiting the public from accessing the river, shoreline and adjacent public lands. And they asked sheriff’s offices and the state Department of Fish and Wildlife to patrol the shoreline for them and issue trespass citations to anyone they had not authorized to be there.
Interestingly, utility officials conveniently “forgot” they didn’t have the authority to close that much of the river and its shoreline.
Utility spokesman Chuck Allen said neither he nor others at the utility see it that way. In fact, he says the utility has the authority under its Federal Energy Regulatory Commission license to close any and all areas affected by the drawdown of the water above Wanapum Dam. When I asked him to cite statutory authority to keep the public off such an important waterway, he provided copies of a couple letters from FERC and utility officials. He also sent an Internet link to look up the utility’s license to operate Wanapum Dam.
I followed up on the letters and called several FERC officials in Washington, D.C. To date, nobody has returned my calls.
Given my limited knowledge of laws relating to navigable waterways, I got in touch with the National Organization for Rivers, a non-profit group specializing in river and access laws, to find out about the utility’s apparent self-proclaimed authority. There, I talked to Executive Director Eric Leaper, who is considered an expert witness by courts dealing with river and river-access controversies nationwide.
During our discussion, it became obvious the utility is claiming an authority it doesn’t have. In fact, he said, utilities nationwide often try to use a FERC license requirement to usurp powers they are not vested with.
Eric said one thing river users need to remember is that navigable waters are “held in trust” for the public. As such, limited areas can be closed to deal with emergencies. But long-term closures are “not lawful.” Furthermore, closing 36 miles of one of the nation’s largest rivers is clearly in violation of federal laws upheld by numerous court decisions.
Clearly, in the days during and following the drawdown, an emergency situation existed, as evidenced by the rescues. But as the spring warmed and the saturated sediment gave way to stable shorelines and plant growth, there was no longer an emergency situation on the shoreline and the river upstream from the dam. And with the utility raising the water level above Wanapum Dam, an emergency doesn’t exist today, either.
A FERC license is only a license to operate a power generation system, not a license to restrict access to the Columbia River or its shoreline. And the land under the water, up to the ordinary high water mark, is held in trust by the state.
Laws governing navigable waterways were enacted by the Continental Congress in 1787, before the Oregon Territory was considered part of the U.S. At that time, Congress approved the Northwest Ordinance, including Article IV, which declares navigable waterways “forever free” in the U.S. Since then, numerous court decisions have upheld the 227-year-old law.
Eric said that’s a point all Americans need to remember. Whether you live here, Colorado or New York, navigable waters — essentially every river that could be traversed by kayak or canoe in the U.S. — are all held in trust for our recreation and commerce.
The Columbia River is the lifeblood of Eastern Washington. Access to and use of the waterway are of paramount importance to all of us who live east of the Cascades. And since the so-called “emergency” doesn’t exist today, the utility’s General Manager Tony Webb and elected commissioners need to take action to return access and use to the public.
Roger Harnack is the editor and publisher of The Chronicle. He can be reached at 509-826-1110 or via email at firstname.lastname@example.org.