International Joint Commission
In the Boundary Waters Treaty of 1909, the United States and Canada created the International Joint Commission (IJC) to address disputes regarding the use and quality of water on the international boundary. The IJC has six members, three appointed by the President of the United States with the advice and approval of the U.S. Senate, and three appointed by the Governor in Council of Canada on the advice of the Prime Minister.
Under the treaty, the IJC has authority to authorize international water uses, limit water levels and flows in order to protect shoreline properties and approve applications for dams or canals in one country that will affect water levels, flows or water quality in the other country. The specific water projects at issue at the time of the treaty were on the Niagara River in New York, which would affect the level of Lake Erie, and on the St. Mary’s and Milk rivers in Montana.
In the Columbia River Basin the IJC keeps an eye on the operation of dams that affect water levels on transboundary rivers and generally has maintained a low public profile over the years with one exception: the 1941 approval of the construction and operation of Grand Coulee Dam.
On February 28, 1941, 23 days before the first big generator at Grand Coulee would begin producing electricity, the IJC convened a public hearing (see transcript) in Spokane to consider the application of the government of the United States to construct and operate the dam. Obviously, the Spokane hearing, and others conducted by the Commission in Trail, British Columbia, on September 3 (transcript), and again in Spokane on September 6 (transcript), were mere formalities. The dam was in place. It would not be taken out.
Still, the United States applied to the Commission for its approval, and so the Commission dutifully conducted three formal hearings. Grand Coulee Dam impounds Lake Roosevelt, which backs up 150 miles (241 kilometers) to the Canadian border. The lake would have raised the water level of the Columbia River at Trail at times if the Bureau of Reclamation, which built the dam, had not planned to deepen the river channel a short distance south of the border. This was the primary concern of the IJC.
The United States’ application to the IJC for permission to construct the dam was dated September 30, 1940, seven years after construction began. Subsequently, on January 26, 1941, the Commission appointed two “engineer advisors” — one from the United States and the other from Canada to assess the effects of the dam on river levels at the international border.
At the Spokane and Trail public hearings, engineers recited long lists of gauging station measurements and river-flow and elevation statistics. They reported on how much rock would be blasted from the river bed at a place called the Little Dalles, 15 miles south of the border, “to compensate for minor stage increases at the international boundary which otherwise might obtain at certain times as a result of the operation” of the dam, according to the application. In other words, the plan was to blast a big hole at the Little Dalles — some 300,000 cubic yards of rock would be removed — to hold some of the water that would be impounded behind Grand Coulee and reduce the potential for shoreline flooding in British Columbia.
The United States recognized in its application that the Commission did not have authority to say yes or no to the dam, only to consider the impacts of the dam at the international border. According to the application, which is included in the transcript of the hearings:
Technically, the necessity for securing the approval of the Commission of the construction and operation of the project might reasonably be questioned, but nevertheless, in view of the possibility that operation of the control dams may at times moderately increase the levels or stages of the Columbia River at and for a short distance above the international boundary, the Government of the United States desires that the Commission give its approval to the project works and to the plan of operation which the Bureau of Reclamation proposes to adopt, in order that the matter may be beyond controversy.
Following the public hearings, the Commission approved the order with the understanding that it would revisit the matter in the future if the Little Dalles excavation were not sufficient to control the water level at the border or if other problems arose.
The three hearings attracted little public attention. At the Trail hearing on Sept. 3, for example, the list of witnesses included only three persons not affiliated with government. One of these, recorded as Mrs. L. Cutillo, specifically questioned the commissioners about the impact of the reservoir on her 33 acres of riverfront property in Trail.
“There would be about seven or eight acres damaged by this water,” she said. “We have mixed farming down there, and I would like to know what would happen if this water should come up to our place and add any damage.”
Senator A. O. Stanley, chair of the U.S. Section of the Commission, explained that even though Grand Coulee would impound a 150-mile-long lake, the potential for flooding actually would be reduced because of the work at the Little Dalles. “If you should have another flood just like that in 1933, with this dam the way it is you wouldn’t get as much water on your ranch as you would if the dam hadn’t been there. . .These engineers are mysterious people, and they construct a fancy dam and back up the water, and you still have low water,” Stanley explained.
The only other non-government witness at that hearing, W.J.E. Biker of Nelson, B.C., raised the issue the commission could not legally address, but was arguably the single biggest environmental impact of the dam — the elimination of salmon and steelhead runs into northeastern Washington and British Columbia.
Biker told the Commission: “My remarks apply to probably sixty percent of the watershed above the Coulee Dam.” Biker said he had visited the new fish hatchery at Leavenworth, Washington, the previous spring, and was amazed. “I suggest [it] is one of the most wonderful things in the world, right here in our midst,” he said, adding that he said he was gratified the federal and state governments would build such a facility “in order to handle our fish.” His request was simple: “My plea is this . . .if a small percentage of that [fish production] could be made available to the watershed above this barrier, then I think everybody would be satisfied.”
Just a few fish for Canada. And he was passionate about it:
Please do not take it as an objection that I am presenting — that is not my point at all. We who are north of the border live in a country in which we have a very small population. Many of the tourists who come through here are interested in throwing a line and getting a fish. We have some of the finest fishing facilities in the world right here in British Columbia, and I should be sorry if by virtue of this dam being constructed the possibility of catching fish in future years should decline, and that is why I am on my feet today to try to tell you that the matter is one which is of importance to us.
Indeed, the matter was of importance, as Grand Coulee ensured the extinction of the upper Columbia’s anadromous fish. This was of less importance to Canada’s federal fishery officials than to local residents along the Columbia.
Senator Stanley remarked: “Mr. Biker, I can say for one member of the Commission, speaking personally, that you have a very sympathetic listener. I would like to hear from Colonel Banks, who is in charge of the dam at Grand Coulee.”
Frank Arthur Banks, then 57 years old, had worked on or supervised the construction of U.S. Bureau of Reclamation dams in Montana, Wyoming and Idaho — 27 years’ experience — before being assigned to the Grand Coulee project in 1933. Before Banks spoke, Stanley revealed the government’s intention: “I do not think I am betraying any confidence when I say it is the purpose of the government to do some very fine work in the matter of propagating rainbow trout in that 150-mile forebay above the dam.” Stanley recalled a discussion he had had with Banks, “... about the salmon run and how the fisheries arrangements in connection with the dam were progressing.” Stanley recalled that Banks told him the lake behind the dam would be ideally suited to the propagation of “these fish” and that “it will be stocked with the liveliest rainbows in the United States.”
This caught Biker’s attention — not the fish species, but the production. He said the superintendent at the Leavenworth hatchery had told him that “. . .the fish he liberates in the streams are purely below the structure and not above it.” Stanley replied: “I understand they will be above it — if not, they are going to hear from me.”
Banks interjected that the Leavenworth hatchery was intended “to take care of the commercial fisheries” by raising and releasing salmon into the Wenatchee, Entiat, Methow and Okanagon rivers downstream of Grand Coulee Dam. Fish production above the dam would be rainbow trout from a new, $125,000 hatchery on Chamokane Creek, a tributary of the Spokane River. “We are taking care of the game fisherman,” Banks said. “We all like to fish down in our country as well as you folks do up here.” Stanley remarked that he was glad to “convey the good news” about the new hatchery.
But trout aren’t salmon. Substituting trout for salmon simply doesn’t replace the cultural and ecological importance of Columbia River salmon in British Columbia or in Northeastern Washington. So why not salmon? If the question arose at the Trail hearing, it wasn’t in the official transcript. But it did arise three days later — a Saturday — when the Commission convened its Spokane hearing.
The Nelson Board of Trade, having learned of Mr. Biker’s testimony at Trail, approved a resolution requesting that the commission “have investigations made by competent authorities” in order that the commission might “write into its order of approval sufficient safeguards to protect the interests of British Columbia in this respect.”
Banks reiterated his brief remarks from the Trail hearing, adding, “I am advised that fishing is very good in the reservoir [behind the dam], and we hope to introduce sufficient species of game fish into the reservoir to make up for any deficiency that may be caused by the constructing of the Grand Coulee Dam.”
Stanley asked about the possibility of fish ladders at Grand Coulee, but he also noted the matter “would not be applicable.” After all, the dam was completed. Stanley wondered aloud whether some of the smolts produced at hatcheries below the dam could be introduced above the dam, adding that might not work: “sometimes fish get along pretty well together and sometimes they don’t — like people — the big fish have a habit of eating the little ones.”
No, Banks replied, that’s not really the issue. While it would be possible to take some of the salmon and steelhead from hatcheries downstream and put them in the reservoir, the juveniles might be swept over the dam or through the turbines. Turbine passage apparently intrigued Stanley.
“Would that be destructive?” he asked.
“We’re afraid that it might be,” Banks replied. He noted the rapid change to low pressure or even vacuum conditions in the spinning turbines and their slashing currents. “The facilities in the turbines are ample to take care of any fish that might want to go through them,” he said, in something of a prescient statement for the times. Today, of course, it is well documented that turbines stun or kill a significant percentage of juvenile fish that pass through them.
As for a fish ladder at Grand Coulee, Banks said, “[it] was considered, but there were two things that were against it. First, that the number of steps that the fish would have to take to get further would be too great for the fish to undertake.” It is interesting in hindsight to note that Banks said the problem was with the fish, not with the cost of such a ladder or its engineering. Such a ladder would have to be about 20 miles long to reach the top of the 350-foot tall dam.
“We are, as you know, about 600 miles from the ocean, and these migratory fish come up there on their own fat; that is, they don’t feed on the way up to any great extent, and they get rather weak when they get there, and the experts indicated that they probably won’t go up over. Furthermore, if they don’t get over, then the downstream migrants might be injured by going through the turbines. Further, the fish, in order to get into your fish ladders, are generally trapped by live water, and there is so much fluctuation it was impossible to put in suitable trapping devices to get the fish out.” Instead of constructing adult fish passage facilities at Grand Coulee, Banks said, the Bureau decided to “. . .re-educate them to [go] up these smaller streams in place of coming up the Columbia River. Our figures indicate that there was only about four percent of the salmon that got by Bonneville that ever go to Coulee, anyhow. But we all recognize the fact that even that four percent should be taken care of, and that is why we built the hatcheries.”
But hatcheries would not compensate for the losses above Grand Coulee, particularly in the Canadian portion of the Columbia River Basin where salmon had tremendous cultural importance to the aboriginal peoples. Canadian researchers believe that at the time of first contact between Europeans and the upper Columbia basin tribes — Ktunaxa-Kinbasket, Okanagan, Sinixt, Shuswap and others — the river produced as many as 600,000 anadromous fish per year. These included five species of salmon. Based on modern estimates of the entire Columbia basin's historic run sizes — 10 million to 16 million fish annually — this would be about 4 to 6 percent.
In fact, hatchery production did not replace the lost salmon and steelhead. Modern biologists know that fish that have adapted to a particular water temperature and chemistry are not easily transferred to a completely different environment, as from below Grand Coulee to above it. But in 1938, Reclamation engineers thought it was a simple matter of “re-educating” downriver salmon to be upriver salmon — and vice-versa. Salmon destined for the river basin above Grand Coulee were trapped at Rock Island Dam and transported to tributaries downstream of Grand Coulee in an attempt to turn upriver salmon into downriver salmon.
Stanley remarked at the September 6 hearing in Spokane, “Now, if a fish spawns in a hatchery and is, say, sort of raised on a bottle, you haven’t got anywhere he would try to find his future home.” Thus did he precisely define another aspect of the upper-Columbia extinction dilemma: hatchery fish will return to the hatchery, not to a stream, and certainly not past the river-blocking Grand Coulee Dam. Banks responded that scientists were “quite certain [the homing instinct] develops in the fish after it is hatched.” He went on to add that kokanee, freshwater sockeye that were being considered for planting in the reservoir behind Grand Coulee, and steelhead have different life histories — kokanee spawn and die and steelhead may return to the ocean after spawning. Stanley, perhaps confused, asked whether it wasn’t true that hatchery fish return to hatcheries. Banks again answered that the homing instinct appears to develop after the fish is hatched, and that steelhead may return to the ocean after they spawn. Unfortunately, the written record of the hearing doesn’t clarify this confusing interchange about kokanee, steelhead and hatcheries. Perhaps Stanley sought to emphasize for the record that hatchery fish sometimes stray and spawn naturally, and therefore some streams below Grand Coulee might be repopulated in this way if the hatcheries were not successful. Perhaps Banks was suggesting anglers would have more than one opportunity to catch a steelhead. The record only shows that Stanley’s next question was: “Is there anyone else who wishes to be heard?”
It was, in retrospect, an almost meaningless hearing, a fact tacitly acknowledged by the United States government in its application to the IJC. As expected, the commission approved the application. The order, dated December 15, 1941, included five conditions. Only one of these, Number Four, addressed the fishery impacts of the dam, which the commission dismissed in just 38 words:
4. That in stocking the Grand Coulee reservoir with game fish, the Commission considers it advisable that the United States Government or the State of Washington take appropriate steps as to secure an equitable distribution thereof throughout the reservoir.
Clearly, the United States did not take its application to the IJC seriously. Equally as clearly, the extermination of anadromous fish runs was not a concern to either the IJC or the United States; the loss would be mitigated by the construction of hatcheries. As well, there is little in the record to suggest that either the Canadian federal or British Columbia governments objected to the IJC about construction of the dam or the loss of fish runs and fisheries.
At the Trail hearing on September 3, British Columbia’s comptroller of water rights, a man identified in the hearing transcript as E. Davis, read a statement on behalf of A. Wells Gray, the Minister of Lands. British Columbia did not oppose the IJC granting its approval, Gray said, but he asked the IJC to reserve the right to issue orders in the future to address any property damage that might occur as the result of the impoundment of Lake Roosevelt. In addition, the province asked that approval for Grand Coulee “. . .be given conditional on the applicant making suitable and adequate provision for the protection and indemnity of all interests in British Columbia from the construction and operation of the Grand Coulee Dam.”
That language is in the IJC’s final order as the first of five conditions of the commission’s approval:
“That the Applicant make suitable and adequate provision, to the satisfaction of the Commission, for the protection and indemnification of all interests in British Columbia by reason of damage resulting from the construction and operation of the Grand Coulee dam and reservoir.”
The modern-day IJC took up the matter in 2005 in response to a request by the Canadian Columbia River Basin Inter-Tribal Fisheries Commission to enforce conditions of the 1941 order. In its request, the tribal organization maintained that “all interests” include the Canadian tribes (First Nations) and “damage” caused by the dam includes the elimination of salmon and steelhead runs to British Columbia. The IJC accepted public comments on the matter through the end of the year and also asked the two federal governments for advice. In March and June 2006 the governments responded with letters from the Office of Canadian Affairs of the U.S. State Department and the U.S. Relations Division of Foreign Affairs Canada, respectively. Both governments advised that the IJC did not have jurisdiction. According to the letter from the U.S. State Department to the U.S. Section of the IJC:
“The 1941 Order reserved IJC jurisdiction only “over such effects on the natural levels or stages of the Columbia River at and above the international boundary as might actually result from the operation of the said Grand Coulee dam and reservoir,” and to issue orders relating to “damage on account of the raising of the natural levels of the Columbia River at and above the international boundary.” This reservation was a necessary element of the Order, providing the Parties with finality and certainty, and indicating an acknowledgment of the limited question before it — namely, “the level or stages of the said Columbia River at and above the international boundary, and the consequences thereof.” . . . Because the CCRIFC has not alleged, nor could it reasonably allege, that any damage to its fisheries was a result of changes in water levels in the Columbia River, it would run contrary to the terms of the 1941 Order to hear the CCRIFC’s application.”
Similarly, the Foreign Affairs letter to the Canadian Section of the IJC said that the 1941 order “does not provide a basis for the Commission to consider CCRIFC's application.” However, the letter noted that the government believes “. . .it is important to address separately the issue of the interest on the part of CCRIFC in the development and protection of fish stocks in the upper Columbia River basin,” and that the Foreign Affairs office would “. . .propose to the CCRIFC that interested parties could discuss this issue and other related fisheries matters directly.” The letter also stated that “. . .there may be merit in exploring whether a comprehensive mechanism for the consideration of Columbia River basin issues would be advisable in this regard.” The IJC potentially could make a contribution to such an effort, according to the letter.
In October 2006, however, the IJC declined to get involved. In a letter to the CCRIFC, Murray Clamen, Secretary of the Canadian Section, wrote that the IJC considered the matter carefully and had decided “not to take action with respect to its 1941 Order of Approval.” Clamen suggested the CCRIFC continue its discussions with the Canadian Department of Foreign Affairs and International Trade, adding, “that is the appropriate avenue” for CCRIFC. By then, the CCRIFC had hired a Vancouver, B.C., consulting firm to scope out possible future avenues for the organization to pursue.