Embed Size (px)
Citation preview
1 3
Protecting Instream Flows: AResource File for River Activists
by Neil Schulman
Prepared for River Network
-- . .. NETWORK
P.O. Box 8787 Portland, OR 97207 • (503)241-3506 • Fax(503)241-9256 • econet: rivernet
March 1993
Table of Contents
Part I: Water Law, Instream Flows, and Strategies for Protection 1 Water Law in the· United. States 2
WeStern States: The Prior Appropriation Doctiine 3 Eastern States: Riparian -Use Doctrine 5
Water Law and Instream Flow Protection 5 Instream Flow Programs and the Prior Appropriation Doctrine 6
Legislative Recognition of Instream Rights 7 Administrative Instream Flow Programs 11 Purchasing and Transferring Water Rights 12 Adjudication of Wate.r Rights 13
Instream Flow Protection and Riparian-Use Doctrine 14 Challenging Water Diversions Through Riparian-Use 14 Interbasin Transfer l-aws 15
Adapting the Riparian-Use Doctrine to Fit Higher Levels of Water Use 16
Permitting Systems 16 Instream Flows Under Permitting Systems 19
Other State Laws Pertaining to Instream Flows 21 The Public Trust Doctrine 21 State Scenic River Programs 24
Instream Flow Protection and Federal Law 25 Federal Reserved Water Rights 25 Hydropower Relicensing 27 The Clean Water Act 29 The Endangered Species Act 30
Part II: Case Studies in Instream Flow Protection 31 Conservation Law Foundation, VT 31 The Arizona Nature Conservancy 35 New Mexico Wildlife Foundation 37 Idaho Rivers United · 39 Platte River Trust, NE 41 The Nevada Nature Conservancy 43 Northern Lights Research and Education Institute, MT 46
1··
Part In: Models for Instream Flow Programs 51 Promising Legislation 51
Alaska 51 Minnesota 55 Model I...egislation 58 Washington Department of Ecology 60
Water Conservation Programs 64 Trust Water Rights Program 64 Oregon's Conservation Statute 67
Part IV Instream Flow Assessment Methods 71 Instream Flow Incremental Methodology 71 Tenant Method 72 7Q10 Flow I...evel 73 Wetted Perimeter Method 73 Single or Multiple Cross-Section 73 Maximum Spawning Area Flow 74
Part V: Future Instream Flow Needs 75
Part VI: Instream Flow Resource Guide: A State by State Listing of Water Law Systems with Contacts from Agencies and Environmental Organizations .. 81
Part VII: References 93
Part I
Water Law, Instream Flows, and Strategies for Protection
"Augeas, King of Blis," according to Bul/inch's Mythology, "had a herd of
three thousand oxen, whose stalls had not been cleansed for thirty years.
Hercules brought the rivers Alpheus and Peneus through them, and cleansed them
thoroughly in one day."l Hercules was not the first, and certainly far from the
last to divert water to meet human needs. Throughout the United States, millions
of gallons are diverted from their natural stream beds every day to meet essential
human needs. Diverted water fills reservoirs for drinking water and other
domestic use, irrigates crops, waters livestock, and provides us with hydroelectric
power and numerous other uses.
Like humans, natural ecosystems are dependent on an adequate supply of
water. Increasing drawdowns on river flows to meet human consumptive
demands have damaged streamside vegetation, destroyed vital fish and wildlife
habitat, and increased the concentration of river-borne pollutants. We have also
come to realize in recent years that healthy rivers are important for the well-being
of humans as well as for fish and wildlife. Without sufficient flows to support
fish populations, the commercial and recreational fishing industries will fail. We
also need healthy rivers for recreational boating, transportation, and shipping, all
of which are important aspects of local economies.
lKaiser, Ronald, Handbook of Texas Water Law: Problems and Needs, pg. 9.
2
The demand for the finite amount of water in America's rivers and streams
is constantly increasing, and as a result protecting instream flows (literally,
keeping water in rivers and streams) is becoming a more and more important
issue in the campaign to protect our rivers.
This file is designed to serve as a resource for river advocates working to
protect instream flows on their rivers. It provides a general overview of the main
legal systems governing water allocation in the U.S., and discusses opportunities
that exist within these systems for protecting instream flow. It also provides case
studies of strategies and lessons from the experiences of other river activists. It
highlights state programs and legislation protecting instream flows, and strategies
and lessons that have aided other river activists. A brief discussion is also given to
different assessment methodologies. The file also contains a list of resources, in
the form of both written materials and individuals who have experience working
with instream flow issues, to provide more specific and in-depth information.
Water Law in the United States
Water law, with a few exceptions, is administered by state, rather than
federal law, and therefore what is applicable in one area of the country may not
be applicable elsewhere. However, two general legal systems regulate water
allocation: the prior appropriation doctrine in the Western U.S., and riparian-use
doctrine in the East. California operates under a mixture of the Prior
Appropriations and Riparian Law systems.2
2For a listing of states and their systems of water allocation, see attached reference list in Part VI.
I-~-
3
Western States: The Prior Appropriation Doctrine
Developed during the mid-nineteenth century as America began to settle
the arid West, the prior appropriation doctrine reflects both the sparseness of the
region's water supply and the political and social beliefs that dominated America's
expansion westward. The scarcity of water in the dry regions running from the
Great Plains to the Cascades and Sierras required a clear, precise legal system to
determine who would get water during dry conditions and who would not.3 Most
early settlers also believed that the vast resources of the west should be harnessed
and put to use, and western water law reflects the desire to divert, manipulate, and
develop the west's water supply. The prior appropriation doctrine speaks to both
of these concerns.
Under the prior appropriation doctrine, a person or organization is granted
a right to use the state's water. A water right is not a right to the water itself, but
a right to use water that is owned by the state; in legal terms, water rights are said
to be "usufructory rights". These rights, however are considered to be property
rights, and like other property are freely transferable and cannot be taken from the
holder without due process of law. Each water right specifies a time, place, and
quantity of use. The water is then allocated, free of charge, on the basis of who
first puts it to "beneficial use", thus the doctrine of "first in time, first in right."
The order in which water rights were established (the date when the user first
began appropriating water is the user's priority date) provides a pecking order for
determining whose rights are satisfied first when there is not enough water for all
3Brown, Christopher, and Kevin Coyle, Conserving Rivers: A Handbook for State Action,pgs.114-5.
4
users. In times of shortage, senior appropriators (those with earlier priority dates)
are given priority before later junior appropriators (later priority dates) may begin
to divert water from the stream.4 When a river cannot satisfy all the holders,
junior rights-holders are forced to cease or reduce their water withdrawals until
senior rights are met. This usually occurs when a senior user goes to the state
agency with jurisdiction of water allocations (usually the Water Resources Board
or the State Engineer) and asks the agency to restrict the activity of junior users.
The second major element of the prior appropriation doctrine is that
appropriators are granted rights to put water to "beneficial use. II This restriction
stems from the fact that the appropriator does not own the water itself, but only
the right to use a certain amount of the state's water. When water-rights systems
were established in the nineteenth century, the only uses considered to be
beneficial were consumptive uses. The Idaho Constitution, for example, initially
recognized only agriculture, domestic uses, manufacturing, hydropower, and
mining as beneficial uses.5 Most states also required the presence of a diversion
(removing the water from the stream) in order to obtain a water right. Under
these restrictions 10 obtain a right for instream use was (and in some cases still is)
impossible.
Furthermore, most western states have an abandonment principle: a water
right is considered to be void once the owner fails to put his right to beneficial
use. For instance, if an irrigator holds a water right but stops diverting water for
their crops, the irrigator then loses the water right. The abandonment doctrine
4Fereday, Jeffrey, Christopher Meyer, and Michael Creamer, Handbook on Idaho Water Law, pg. 2-3. Under the prior-appropriation doctrine, the appropriator pays only the cost of complying with state laws; the water itself is provided free of charge. It should be noted that when a water right is transferred (for instance, bought, sold, leased, or donated) it retains its original priority date.
5Fereday, et al. pg. 4. In 1974 the Idaho Supreme Court ruled that the above was not an exhaustive list, and the state legislature has since declared instream uses to be beneficial.
--~ -----------
5
varies among Western states; many state laws consider rights abandoned after five
years of non-use. However, this doctrine is seldom enforced due to the number
of water rights in each state and the difficulty of keeping tabs on all of them.
Eastern States: Riparian-Use Doctrine
Under the riparian-use doctrine, owning streamside land is the basis for
water use. The doctrine grants each stream-side landowner "reasonable" use of
the water, provided that this use does not unreasonably infringe on the rights of
downstream landowners.6 The meaning of "reasonable use tl is generally left for
courts to decide on a case-by-case basis, a time-consuming and expensive
process. Courts have generally held that it is unreasonable for an upstream user
to unduly pollute a stream or to deprive downstream users of the entire stream
flow.7 However, increasing demand for water supplies in Eastern states is
creating pressure for the adoption of a more specific and comprehensive method
for allocating water and making it available to those who do not own riverfront
land. Some eastern state legislatures have addressed these difficulties with
riparian-use law through permitting and minimum-flow laws (both discussed
later) and are using riparian-use doctrine less and less.
Water Law and Instream Flow Protection
Both the riparian-use and prior appropriation doctrines, in their initial
forms, left little room for the protection of instream values such as fish and
wildlife, recreation, water quality, navigation, or aesthetic enjoyment. Yet in
6Brown and Coyle, pg. 117. 7Ibid., pg. 118.
----------- --- ------ --~
6
recent years both of these systems have become more amenable to different
methods of protecting a river's natural flow.
Instream Flow Programs and the Prior Appropriation Doctrine
The prior appropriation doctrine, in its origiual form, made it impossible
to protect instream values. The consumptive definition of beneficial use and the
diversion requirement reflected the belief among most early western settlers that
the nation's natural resources should be adapted to human use; many considered-
and some still consider-- water left in the stream to be "wasted". Yet, as Jeff
Fereday, Christopher Meyer, and Michael Creamer note, the diversion
requirement also spoke to the realities of the 1800s:
The diversion requirement seems frustratingly arbitrary--a sort of Catch-22 for instream users. In fact, however, the diversion requirement had its basis in perfectly sensible public policy of the day. It protected against three types of abuse: First, it prevented speculators from obtaining water rights simply by asserting a claim to unappropriated water and then selling the water to legitimate users arriving later. Second, it served an important notice function. In days prior to sophisticated record keeping and administration, about the only way a user could determine the state of water rights was to take a look at the stream...Third, the diversion requirement eliminated wasteful uses, for instance by users who sought to command the entire flow of a stream simply to run a waterwheel or irrigate adjacent lands by natural overflow.8
Yet whatever the intent, the pro-development nature of the prior
appropriation doctrine has had the effect of hamstringing concerns for flow
protection, and has "fueled decades of hostility between traditional consumptive
water users and a growing cadre of environmental activists. "9 However, some
progress has been made in the past quarter-century toward accommodating
instream flow values in the existing doctrine of western water law.
8Fereday, et aI., pg. 15. 9Ibid.
7
LEGISLATIVE RECOGNITION OF INSTREAM RIGHTS
Most western states have legislatively modified their water laws to include
instream uses such as fish, wildlife, recreational, navigational, and/or water
quality values as beneficial, implicitly if not explicitly overruling the requirement
for a diversion. In theory at least, instream rights are no different from
consumptive water rights; the interested party applies to the state, and the
instream right is given a priority date and a specific place and quantity of water.
Like any new water right, the instream right then takes its place in line with all
other rights within the priority system. If an instream right is not being filled, the
instream holder can place a call on the river and junior upstream diverters will be
forced to stop or reduce their use until the instream requirements are met. The
only differences are that instream rights do not interfere with downstream water
rights because their purpose is to keep water in the stream, and that they designate
a certain stretch of the stream, rather than a specific point at which water is
diverted.
However, most states have imposed several restrictions on instream flow
rights that do not apply to consumptive rights. In most westerns states that have
instream flow legislation, only government agencies (usually the permitting
agency and/or state fish and wildlife agencies) can apply for or hold instream
rights. to (Alaska, Arizona, and Nevada are the exceptions.) Furthermore, in most
cases the legislature has imposed limitations on the amount of flow that an
instream right can protect. Idaho statute, for instance, limits the amount of water
lOWhile the rationale for this restriction may be that instream flows are public values and are therefore held by the stale in trust for the public, these restrictions have had the effect of limiting the resources which could be brought to bear in protecting flows and of politicizing the instream flow protection process.
8
for which the state Water Resources Board can apply to "the minimum flow level
and not the ideal or most desirable flow level" to protect instream values;
Colorado state law, on the other hand, allows the Water Conservation Board to
apply for instream rights for "the preservation of the natural environment to a
reasonable degree." I I Nebraska law gives clear priority to applications for
consumptive uses by requiring instream flow applications to both limit their
requests to the "minimum necessary flow" and to not interfere with "reasonably
foreseeable" future uses.12 All too often, the minimum flows set are below the
requirements for a healthy and diverse river ecosystem.13
Applying for An Instream Right
When applying for an instream right, the applying party (usually the state,
or the individual or organization in some states) is responsible for assessing the
instream flow needs of the stream. The assessment and documentation process
can be very burdensome, costly, and time consuming, and is often beyond the
staffing needs of many state agencies and some environmental groups. Most
states with instream flow programs have a backlog of flow studies waiting to be
completed.14 In most states, the next step is a hearing process (often standard for
all new water rights) at which the application can be protested, often by existing
users who fear it might interfere with their water rights. This is the most
controversial part of the process. Some states, such as Idaho, require each
instream flow right to be approved by the state legislature, an even more arduous
process.
llIbid., pg. 21; Trembly, T.L., Opportunities to Protect Instream Flows in Colorado, pg. 12.
12Conversation with Russ Lock, NE Game and Parks Commission. 13Fereday, et aI., pg. 21. 14Brown and Coyle, pg. 121.
9
As Fereday, et al. note, most of the hostility toward instream flow rights
stems from a mistaken notion of how they function within the prior appropriation
systems. Existing users, the most frequent objectors to instream rights, are
legally protected by their senior priority date from any interference. Subsequent
users, meanwhile, are no more restricted by an instream right than a consumptive
right; in fact, an instream right, by keeping water in the stream, would make more
water available for downstream users. Fereday et al. write:
Much of the hostility to instream flow programs, it seems, is based on misapprehension of their function. Properly administered, instream uses pose no threat to the valuable property of existing users. While they may "tie up" a stream and complicate efforts of new users to develop sources of supply, so do all water rights. That is the nature of property rights generally. IS
Traditionally, environmental groups have been virtually the sale advocates
of instream flow rights for the protection of fish, wildlife, and recreational values,
while other water users have opposed these rights. However, this need not be the
case: instream rights hold potential value for many different interests. In
addition to their environmental values, fisheries and recreational interests
represent a large portion of some local economies. Instream rights could also be
used, as Fereday, et al. points out, to protect large-scale investments in water
treatment systems that require a certain quantity of flows to assimilate waste.
Developers that are required by section 404 of the Clean Water Act to reduce
environmental impacts may require a certain amount of flow to dilute
pollutants.16
15Fereday, et aI., pg. 26. I6Ibid., pg. 19.
-- -----
10
Advantages and Disadvantages oflnstream Rights Appropriation
One of the greatest advantages of the appropriation of instream flow rights
is that once the right is granted it is a property right, and the holder cannot be
deprived of it without due process. More importantly, the right is enforceable
under the prior appropriation systems: junior users must defer to a senior instream
right if water is low (although enforcing an instream right effectively requires the
keeping of flow data.)
Yet the usefulness of an appropriated instream right often hinges on where
an instream flow right's priority date stands relative to other users. Because
instream rights have only existed for at most roughly a quarter century, they are
often far junior to a long string of consumptive rights, some with priority dates
from the early twentieth century or even earlier. In these cases the instream right
does almost no good. This is especially true on rivers that are overallocated
because every drop of water is claimed by senior users. Applying for new
instream rights can be effective on an unallocated basin or stretch of river, where
the right is then senior to all subsequent rights; in this manner, acquiring an
instream right can protect pristine rivers.
For an instream right to be used effectively, it is often necessary for the
holder to monitor streamflow data in order to assess low flows and provide
documentation in order to force upstream users to stop or reduce their diversions.
This places an additional burden on state agencies and environmental groups, but
is often vital to using the right effectively.
In addition to priority dates, the main disadvantage of the appropriation of
instream rights is the lengthy and cumbersome process. For instance, the Arizona
Nature Conservancy applied successfully for three instream flow rights, with each
11
application taking four to eight yearsP For instream rights appropriation to be
more effective, state agencies will require greater staffpower to complete studies,
and individuals and organizations seeking to acquire instream rights will have to
work closely with these agencies.18
ADMINISTRATIVE INSTREAM FLOW PROGRAMS
Some states that have not legislatively recognized instream flows as a
beneficial use of water, such as Nevada and Montana, have administratively
recognized the right of state or federal agencies to establish instream flows in
certain situations. The Montana Fish and Wildlife Department, for example, is
authorized to seek flow reservations on streams that are in danger of being de
watered or have unique values. If the river flow drops below a certain point, the
state can assert the reservation and protest uses along the river.l 9
Advantages and Disadvantages
Like actual instream rights, instream reservations are most effective on
unappropriated streams. The reservation process is less time-consuming and
easier to administer than is appropriating an actual right, and in some states such
as Montana and Nevada, it is still impossible to obtain an actual instream flow
right. Yet because a reservation lacks the standing of an actual rights, subsequent
diverters are not forced to get in line for priority and may still be issued a water
right.2o The Montana reservations, for instance, are subject to subsequent
reallocation.21
17Kulakowski, Lois, and Barbara Tellman, Instream Flow Rights.: A Strategy to Protect Arizona's Streams, pg. 7.
18Brown and Coyle, pg. 123. 19Ibid., pg. 124. 2oIbid., pg. 124-5. 21Fereday, et al., pg. 60.
1
12
PURCHASING AND TRANSFERRING WATER RIGHTS
Because a water right is a property right, it can be bought, sold, or
transferred· freely. In many Western states, a consumptive right can be purchased,
leased, or donated and converted into an instream flow right. Depending on state
law, this can be done by either private organizations or state agencies.
In most western states, it is necessary to apply to the state water
management agency in order to change either the place, season, nature, or
purpose of use. Mter an application is filed, notice is given, protests can be filed
and a ruling is made, in a process similar to that for acquiring a new water right.22
Advantages and Disadvantages
The great advantage of transferring existing water rights to instream use is
that the priority date of the initial appropriation remains intact,23 Therefore,
purchasing or leasing a senior right on a heavily appropriated river and converting
it to instream use would require any upstream junior diverters to leave a certain
amount of flow instream, which a newly acquired right would not. Leasing a
senior water right for certain periods can provide greater flexibility at lesser
expense than outright purchase; for instance, a river group could lease a senior
right during months of low flow, when fish or wildlife habitat is threatened.
However, the escalating costs of water rights, especially in highly appropriated
basins, has thus far limited this approach, as has the restriction that only state
agencies are permitted to hold instream rights. In some of these states it is
possible for organizations to acquire a consumptive right and transfer it to the
22For a full accounting of the procedures for transferring water rights in most western states, see Colby, Bonnie, Mark McGinnis, and Richard Wahl., Transferring Water Rights in the Western States--A Comparison of Policies and Procedures.
23Brown and Coyle, pg. 129.
13
state for administration as an instream flow right, as the Colorado Nature
Conservancy did with water rights on the Gunnison River in the late 1980's.
It is also possible to purchase a consumptive right and transfer the point of
use downstream, without transferring the right from a consumptive to an instream
right. If the right is sufficiently senior, this will require all upstream junior users
to leave more water in the stream. However, rights that are transferred
downstream often have the amount of water reduced by the state water
management agency, on the assumption that downstream users have become
dependent on return flows. Once moved downstream, the holder continues to
operate the right as a consumptive right.
ADJUDICATION OF WATER RIGHTS
The adjudication of water rights is a means of determining the existing
water rights in a basin and of being sure that water users actually hold a right,
whether rights have been abandoned, and if users have exceeded the volume of
water granted by their water right. Different western states have different
procedures for adjudicating water rights. In most cases, adjudication is done for
specific areas, usually river basins. In Texas, any 10 individuals can ask the state
to adjudicate a stream or stream segment. Montana's adjudication process is
supervised by a court-appointed judge, and requires holders of water rights to
come forward and claim their rights or the state will assume their rights to be
abandoned.24
24Ibid., pg. 133-4.
14
Advantages and Disadvantages
While they can be very time-consuming and complex, the adjudication
process represents the best overall way of assessing the current state of water use
in a basin and of modernizing water use. The implication for river advocates is
that in some situations the adjudication process allows the state to reallocate some
of the unused and abandoned rights for instream purposes.25
Instream Flow Protection and Riparian-Use Doctrine
CHALLENGING WATER DIVERSIONS THROUGH RIPARIAN-USE
Under the doctrine of riparian-use, a riverside landowner is entitled to "the
reasonable use and natural flow of waters that abut his or her land and has the
legal right to prevent others from depriving or unreasonably infringing on that
right. 1126 In the event of a proposed upstream diversion, a downstream landowner
can insist that the project be conditioned or abandoned so that he or she receives
his/her flow.
Advantages and Disadvantages
While the rights of downstream landowners under riparian-use are weII
established, there are also significant drawbacks to the process of asserting these
rights for the protection of instream flows. First and foremost, the only
mechanism for enforcing a riparian right is through the courts, a lengthy and
25Ibid. 26Ibid., pg. 135.
15
costly process. Rights can only be asserted by a downstream landowner (not, for
instance, by an environmental group, unless the group is also a landowner) and
the landowner has the burden of proving injury or loss from the diversion, which
adds to the already expensive legal process. In addition, the open interpretation
of the phrase "reasonable use I! makes it difficult to predict the outcome of most
proceedings.
INTERBASIN TRANSFER LAWS
As the population of Eastern cities has risen, so has the demand for water
for municipal and domestic use. More and more cities have proposed pumping
water from distant watersheds to fill their reservoirs. While many riparian-use
states have yet to address the issue of interbasin transfers comprehensively, some
states, such as Massachusetts, have adopted legislation to this effect.27
Under Massachusetts law, the state has the authority to regulate transfers
of over 1 million gallons per day, and after assessing the environmental needs of
the basin it can grant or refuse the transfer based on environmental impacts and
alternative sources of water and whether reasonable conservation efforts are being
made. The state can also require that a certain level of instream flow be left in
the donor basin.28
This law (South Carolina has a similar interbasin transfer law) has the
advantage of both enabling the state to set minimum flows for rivers and of
requiring conservation efforts to maximize the efficiency of existing water
sources before allowing the transfer. Unfortunately, only a few states have such
laws in effect.
27Ibid., pg. 137-8. 28Ibid., pg. 138; Conversation with Karen Pelto, MA Riverways Program.
16
Adapting the Riparian-Use Doctrine to Fit Higher Levels o/Water Use
The looseness of the riparian-use doctrine reflects the relatively abundant
supply of surface water found in most eastern states. But in recent years growing
populations and water demands have highlighted the inability of the riparian-use
doctrine to administer water rights through the courts. In states such as Ohio and
Alabama, the state has no authority to regulate water withdrawals, and therefore
even the most general information on water use is difficult to obtain. As a result,
several states (examples are Minnesota and Virginia) have significantly altered
traditional riparian-use doctrines in an effort to provide more comprehensive
management of water.
PERMITTING SYSTEMS
A permitting system gives the state jurisdiction over water management.
Most permitting systems include a statutory recognition of a public interest
standard stating that water is a public resource regulated by the state in the public
interest.29 Under this authority, water users are required to obtain a permit from
the appropriate state agency in order to use water. Permits are not water rights,
and therefore the western system of seniority in times of low water does not
apply. Instead, many states have established a priority system, based on type of
use, to determine who receives water during droughts. Minnesota, for instance,
ranks priorities in the following order: domestic use, other low volume use,
irrigation and agricultural processing, power production, and finally commercial,
29Truitt, Robin, "Model Legislation Providing for Instream Uses of Water in Riparian Water Allocation Systems", Rivers, Vol. 2, No.1, pg. 34.
17
industrial, and other high-volume uses.30 Several states operating under a
permitting system exempt uses below a certain volume from permitting, as well
as certain types of use, most commonly domestic and agricultural use. Most
states that have established priority systems have given domestic use the highest
level of priority.
The state then issues (or refuses or conditions) permits for water use.
Criteria for the issuing of permits is generally according to "reasonable use ll of
the water (usually taken to consider existing uses), and many states, such as
Florida, have also adopted the prior appropriation concept of IIbeneficial use ll as
an additional criteria, along with that of meeting the public interest. Robin Truitt,
in providing a model of permitting legislation, advocates a definition of
reasonable-beneficial use as "the use of water in such quantity as is necessary for
economic and efficient utilization for a purpose and in a manner which is both
reasonable and consistent with the public interest. "31
Additionally, because an allocator is granted a permit rather than an actual
water right, it is possible for permits to be granted for limited amounts of time,
after which they are generally evaluated for renewal. This allows the state to
reallocate water with consideration to changes in "the public interestll and to
modernize water use in light of more efficient methods of water use. At the same
time, permits must have duration long enough to provide some security to water
users in order to realize their investments. Truitt argues for variable permit
durations, to be determined by the board in issuing the permit, on a case-by-case
basis.32
30Brown and Coyle, pgs. 138-40. Minnesota also has a minimum flow program (discussed below) and the priority system goes into effect when the minimum flows are not being met.
31Truitt, pg. 38. 32Ibid., pg. 31.
18
Advantages and Disadvantages ofPermitting Systems
Permitting systems are a substantial improvement over traditional
riparian-use laws, because they authorize the state to regulate water allocation.
They also establish a means for allocating water to those that do not own
riverfront land. More importantly, the permitting process provides a means of
settling disputes administratively rather than judicially. Such systems also enable
the state to approach issues such as water-use efficiency that are not addressed by
the riparian-use doctrine.
Permitting systems generally require legislative establishment, which can
be difficult to achieve and can provoke much political opposition. The
development of permitting legislation must also tackle the controversial issue of
how to administer pre-existing riparian water users who have been operating
without permits under their rights as landowners. Many permitting systems have
exempted all pre-existing users from regulation (along with other exemptions).
However, this limits the effectiveness of the state's water management authority,
especially in areas where riparian-users are numerous and have already put most
or all of a stream's water to their use.33 While States may have the authority to
subject these pre-existing users to permitting under the notion of managing water
in the public interest, this would in all likelihood be a very controversial and
contested step.
331bid., pg. 39.
19
INSTREAM FLOWS UNDER PERMI1TING SYSTEMS
The Permitting Process
One possible method of protecting flows under permitting systems is
through the permitting process. River advocates and other concerned parties can
object to the issuing or renewal of a permit on the grounds that it would damage
public resources by depleting the river flow. Such arguments generally focus on
issues such as the economic value of fisheries, recreation, and tourism, or water
quality, wildlife, and aesthetic-related values that affect the general public. Most
states with permitting authority can condition permits to require a minimum flow
past a proposed diversion or withdrawal. While this can be an effective method
of protecting the status quo on a river, it does not reverse cumulative depletions
of flows, and largely operates on a case-by-case basis. In the case of Minnesota's
permitting process, however, the minimum flows established by the state apply to
existing as well as proposed uses.34
Protected Flow Laws
Some states with permitting systems have legislatively authorized the state
water management agency to set protected flows on some or all of the state's
streams, and permits for new consumptive uses generally cannot be issued for
flows below the protected level. Minnesota is in the process of establishing
protected flows for all of its rivers, with emphasis placed on those undergoing
stress or drawdown.35 When water levels drop below protected flow levels, water
34Brown and Coyle, pg. 140. 35Ibid.
20
uses are curtailed according to the priority system, including both previous and
future users. Water management authorities in Iowa and South Carolina can
suspend or modify permits when protected-flow levels are threatened.36
Advantages and Disadvantages
Protected flow programs have the advantage of being firmly established
by legislative authority, and state water agencies in states with such programs
therefore have the authority to stop diverters to ensure that protected flows are
mel. However, because these programs are established legislatively, they may be
difficult to establish in other states.
Much of the effectiveness of protected flow programs also depends on the
way in which flows are set and enforced. As with instream flow protection
programs in western states, the amount of flow the state is authorized to protect
varies from state to state, and in some cases protected flows are insufficient to
protect some instream values. Furthermore, the painstaking process of
scientifically assessing a state's streams to determine appropriate levels of
protected flow can stretch a state's resources. While the Minnesota Department of
Natural Resources has a legislative mandate to establish protected flows on all
state streams, staffing and other constraints have prevented the DNR from
completing many of the necessary studies.37 Once a protected flow is established,
it becomes necessary to continually monitor the river's flow in order to enforce
the protected flow level.
36Ibid. pg. 140-1; Truitt, pg. 39. 37Conversation with Greg Kruse, Minnesota Department of Natural Resources.
21
Other State Laws Pertaining to Instream Flow
THE PUBLIC TRUST DOCTRINE
The public trust doctrine had its origin in an 1850 decision of California
courts. In the 1850's the California Supreme Court affinned the tradition. going
back to ancient Rome's Justinian Code, that "because of the public's interest in
navigation, commerce. and fishing. private titles to tidelands and submerged lands
would be held subject to a 'public truSt.1I138 As it relates to modern environmental
concerns, the public trust doctrine was an argument put forth by California's
Mono Lake Committee as part of its efforts to protect inflows to Mono Lake from
diversions by the City of Los Angeles. The committee argued that the
environmental damage caused by the water diversions was damaging to Mono
Lake, a public resource, and therefore the withdrawals were in violation of the
public trust doctrine. The California Supreme Court agreed in 1983, in essence
expanding the notion of the public trust to include water and water rights as well
as land. While the court did not rule as to whether or not the withdrawals from
Mono Basin needed to be modified, it did establish that the public trust doctrine
provided grounds to challenge such diversions. The decision required the state. in
managing trust resources for the public, "to take the public trust into account in
the planning and allocation of water resources, and to protect public trust uses
whenever feasible. "39 These requirements to consider the public trust resemble
statutes requiring the California Water Resources Control Board to consider
38Dunning, Harrison, "Instream Flows, the Public Trust, and the Future of the West" in Instream Flow Protection in the Western United States: A Practical Symposium. pg. 3; Eldridge v. Cowell, 4. Cal. 80,85 (1854).
39Majors, J.E., Opportunities to Protect Instream Flows and Wetland Uses of Water in Californi!!, pg. 70.
22
environmental impacts when considering applications for water appropriations.4o
However, the doctrine also has more far-reaching implications.
Advantages of the Public Trust Doctrine
In Western states, one of the most significant advantages of the public
doctrine is that it is not limited by priority dates, as most programs that consider
the environmental effects of new water rights are. An instream appropriation, for
instance, is junior to all established consumptive rights, and cannot curtail them.
Nor can refusing or conditioning an application for a consumptive right do
anything more than preserve the status quo. A public trust consideration,
however, "can be viewed as in existence from time immemorial...as part of the
common heritage it predates any appropriative right."41 Because it operates
outside of the priority system, the public trust doctrine can be used to correct
mistakes of the past by terminating or conditioning pre-existing rights, if evidence
can be presented that these rights are in conflict with the public interest.42
Similarly, the public trust doctrine could be used to obtain instream reservations.
In a state that does not legislatively require the state water agency to consider the
environmental effects of new permits, the public trust doctrine could be the basis
of an argument for such criteria. The doctrine could also be used to argue for
other concerns related to instream flows, such as requiring the adoption of
alternatives that maximize the use of existing diversions or require conservation
programs before granting new appropriations.43 Another advantage of the public
trust doctrine is that it is often determined by judges rather than state legislatures
40Ibid.
41Dunning, pgs. 27-28. 42Majors, pg. 68. 43Ibid.
23
or administrators, and is therefore insulated from the political concerns that often
dominate instream flow proceedings.
Another advantage of the public trust doctrine is its affiliation with state,
rather than federal law. With respect to water, federal law has largely deferred to
the states, and the U.S. Supreme Court has emphasized that federal laws will be
narrowly understood in this arena.44 As a creation of state law, the public trust
doctrine can be interpreted more broadly, and all western states except Colorado
have recognized the doctrine in some form, although in most cases the manner in
which it will be implemented is not yet clear. Idaho's Supreme Court stated in
1985 that the public trust doctrine would be integrated with the prior
appropriation system and a public interest analysis would be required for new
water rights, or upon evidence that an existing right was causing significant
damage to public trust values. Montana has relied on the public trust to protect
public uses of streams for recreation, but has also indicated that public trust rights
are subordinate to already established appropriative rights. This decision may be
challenged in the future.45
Disadvantages ofthe Public Trust Doctrine
Although it is a powerful tool, the public trust doctrine is also a somewhat
vague formula. "The public interest" is always a subjective and changing notion,
and evaluating water uses based on the criteria of the public interest is almost
certain to be a highly political process. The possibility exists that the doctrine
could institute procedural change without any accompanying change in the
substance of state decision-making. Public trust arguments may be likely to end
in litigation, especially if used to challenge existing water rights (although this is
44Dunning, pg. 29. 45Ibid., pg. 29-30.
24
also the area where the doctrine could be most useful) and in some states the
exact parameters for applying the public trust doctrine have not yet been laid. 46
STATE SCENIC RIVER PROGRAMS
State Scenic Rivers programs represent a potential tool for preventing
dams, and in some cases other types of diversions, on designated rivers. Most
state programs specifically prohibit non-federal dams on rivers designated as
holding wild or scenic qualities. Most state laws, however, are less explicit when
dealing with other diversions. Georgia's law for instance, expressly prohibits
dams but requires extrapolation to be interpreted as prohibiting diversion as well;
Washington bans diversions that are not "within the intent of the act." Maryland's
wild and scenic rivers law specifically prohibits both dams and diversions on
designated rivers.47
Advantages and Disadvantages
State wild and scenic river programs can be very useful in states that have
such programs but have not yet established a coherent instream flow program or
recognized instream rights as beneficial, such as Oklahoma. In such cases, state
wild and scenic designation can be one of the only methods of protecting instream
flow under state law. However, state designation can be difficult to obtain,
especially on streams that are heavily appropriated or highly altered.
46Ibid., pg. 21. 47Brown and Coyle, pg. 143.
25
Instream Flow Protection and Federal Law
While the federal government has the authority to override state programs
and establish a nationwide system of water allocation, to date the federal
government has deferred to state water law, and the Supreme Court has narrowly
interpreted federal jurisdiction under existing federal laws. However, some
opportunities do exist to use federal statutes for instream flow protection.
FEDERAL RESERVED WATER RIGHTS
Federal reserved water rights were first articulated by a Supreme Court
ruling in 1908. In Winters v. United States; the Court determined that in
reserving land in Montana for the Fort Belknap Indian Reservation, the federal
government had implicitly reserved water rights along with the land. In Arizona
v. California (1963) the Court expanded the Winters decision to include all
federal reservations of land, such as national parks, forests, and wildlife refuges.48
The federal reserved rights doctrine has been implemented eight times by the
Supreme Court. The Court described the doctrine in 1978:
This Court has long held that when the Federal Government withdraws its land from the pUblic domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water than unappropriated to the extent needed to accomplish the purpose of the reservation.49
Federal reserved water rights share many characteristics of other water
rights; they are quantified to a specific flow at a specific location. In the West,
they fit into the priority system, but there is one important difference: the priority
dates of federal reserved water rights are backdated to the date that the adjoining
48Meyer, Christopher, Western Water and Wildlife: The New Frontier, pg. 15; Winters v. United States, 207 U.S. 564 (1908); Arizona v. Cali[orni~ 373 U.S. 546 (1963).
49Meyer, pg. 15.
26
land was reserved by the federal government, and are therefore senior to any
subsequent rights. This backdating has prompted many legal challenges to the
doctrine of reserved rights, all to no avail.
While the basic doctrine of federal reserved rights is secure, the question
of how extensive these rights are is not. In 1978 (United States v. New Mexico)
the Supreme Court determined that reserved rights are attached only to the
primary purposes of a federal reservation. Therefore the Court ruled that the U.S.
Forest Service could obtain reserved water rights only for timber production and
water management, and not for the protection of fish, wildlife, or recreational
values.50
Advantages and Disadvantages ofFederal Reserved Rights
Because they are backdated to the date the federal government reserved
land, federal reserved rights present one of very few means of addressing past, as
well as future, water diversions. (The others are obtaining pre-existing water
rights and asserting the public trust doctrine) Obviously, reserved rights are
limited to streams flowing through federal land reserves. Furthermore, asserting
federal reserved rights requires the co-operation of the appropriate federal agency
and can provoke opposition by rights holders whose priority dates would be
threatened by the backdating of federal rights. The limitation of reserved rights
to the primary purpose of a reservation may also restrict the usefulness of the
federal reserved rights doctrine, especially in cases pertaining to national forests.
50Meyer, pg. 16; this decision to restrict instream values pertains only to national forests; national parks, wildlife refuges, and other reservations may well have primary purposes requiring instream rights.
27
HYDROPOWER RELICENSING
The Federal Energy Regulatory Commission (FERC) regulates all private
hydropower projects. Developers wishing to build a dam must obtain permission
from the PERC to alter the river "for the recognized public good of producing
electricity."51 Licenses are granted for 50 years, after which the license may be
renewed, altered, conditioned, or canceled. In 1993 alone, 175 dams will come
up for relicensing.
Hydropower relicensing represents a major opportunity to protect
instream flow, especially in the northeast, where 64 dams will come up for
relicensing in five states.52 Through the relicensing process, environmental
groups can secure flow releases from dams to protect fisheries, recreational,
aesthetic, or water quality values.
The relicensing process usually raises different issues than were raised in
the original licensing proceedings. Because projects are relicensed every 50
years, most of the projects currently approaching relicensing were built long
before environmental concerns became an issue or before much of our present
knowledge as to how river ecosystems function was acquired. All of these
projects were constructed prior to the 1969 passage of the National
Environmental Policy Act (NEPA) and many were constructed before the
adoption of the Federal Power Act (1920) when there was no public process for
the review of hydro proposals.53 In addition, the state and use of the river has
already been changed by the existing dam and its management. For instance, a
51Echeverria, John, Pope Barrow, and Richard Roos-Collins, Rivers at Risk: The Concerned Citizen's Guide to Hydropower, pg. 1l.
52Conservation Law Foundation, No Water To Spare: A Challenge for New England's Future, pg. 5l.
53Echeverria, et aI., pg. 66.
28
lucrative whitewater boating industry may have become dependent on periodic
releases, and certain levels of water may be needed to maintain water quality or
fish habitat downstream.
In deciding whether or not to issue a new license or what conditions to
impose, the FERC is bound by the same standards that apply for applications to
new projects. The first of these standards is what is "desirable and justified in the
public interest" as stated in the Federal Power Act. The FERC must also give
equal consideration to "power and development purposes" and to "the purposes of
energy conservation, the protection, mitigation of damage to, and enhancement of
fish and wildlife, the protection of recreational opportunities, and the preservation
of other aspects of environmental quality."54 Other criteria exist under the Federal
Power Act and the Electric Consumers Protection Act, including the need to
"adequately and equitably" protect fish and wildlife, the safety and cost
effectiveness of the proposal, the need for power, and the past record of the
licensee.55 The relicensing process must also be consistent with NEPA. Through
the relicensing process, environmental groups can seek conditions on license
renewals to maintain sufficient streamflows to support fish populations, water
quality, or recreational values. One can also use the relicensing process to
prevent wasteful or inefficient hydropower development.
Advantages and Disadvantages
The FERC relicensing process represents an opportunity to mitigate past
harm on already developed rivers, including securing protection for instream
flows. FERC relicensing also has the ability to address issues such as cost
54Ibid., pg. 67. 55Ibid.,pg. 67-8.
29
effectiveness and energy conservation, which many instream flow programs do
not.
However, relicensing occurs on a case-by-case basis, depending on which
projects are up for relicensing, and like most means of protectinginstream flow, it
is a reactive rather than a proactive measure. As with many federal proceedings,
the FERC relicensing process is time-consuming, sometimes stretching out for
years. Furthermore, the FERC has been generally unsympathetic to
environmental concerns, and is almost certain to approve most relicensing
applications, However, the public can participate in the process, although the
proceedings are quite complex.56 Without such intervention, the FERC is likely to
proceed with business as usual, without enough consideration given to instream
flow protection and other mitigation of environmental damage.
THE CLEAN WATER ACT
While the primary purpose of the Clean Water Act has been to protect
water quality, section 404 of the Act can in some instances be used to protect
instream flow resources. Section 404 requires anyone wising to discharge
"dredged or fill material" into a water body to obtain permission from the Army
Corps of Engineers.57 This has been interpreted broadly, and therefore anyone
wishing to place a dam or diversion structure in a river (dams and diversions are
both considered "fill") requires a section 404 permit, even if the person has
already obtained the necessary water right or permit under state law. Under the
Act, the Corps is required to consider the effects of the proposed structure on "the
public interest". As part of the permitting process, the Corps can refuse or
561bid. Echeverria, et al., provides a detailed description of the procedures and regulations governing public intervention in licesing and relicensing procedures.
57Meyer, Christopher, Western Water and Wildlife: The New Frontier. pg. 19.
30
condition permits, which could require the applicant to meet certain minimum
flow standards.
Advantages and Disadvantages
As with hydro relicensing, protecting instream flow via the 404 permitting
process is a reactive process: flows can be set to condition other activities, but
cannot establish protected flows in any independent, proactive manner. In
addition, "the public interest" is a subjective notion, and courts in the past have
deferred to the judgment of the Army Corps, making it difficult for river
advocates to challenge Corps rulings.58
THE ENDANGERED SPECIES ACT
The Endangered Species Act is perhaps the most unequivocal piece of
environmental legislation that the federal government has passed. It requires
federal agencies to prohibit activities that are likely to jeopardize the survival of
endangered or threatened species or that would endanger their habitat. Although
there exists some political pressure to modify the Act, currently the Act does not
allow the government to consider endangered species values relative to other
aspects of the public interest.59 The Endangered Species Act can be used to
protect instream flow if that flow is essential habitat to a threatened or
endangered species, such as fish or waterfowl, as was the case with the Whooping
Crane and the proposed Wildcat Dam on the South Platte River.
58Ibid. 59Ibid., pg. 20.
Part II
Case Studies in Instream Flow Protection
The following case studies are designed to provide guidance and advice to
river activists working to protect instream flow on their rivers. Due to frequent
variations among state water appropriation laws and administrative rules and
procedures, these studies are presented in a general fashion so as be applicable to
the broadest audience possible. It should also be noted that instream flow
protection is still in its infancy, and therefore many of the projects described
below have yet to be completed; nonetheless, they may still provide many ideas
for others working in the same area. For more information specific to certain
states or regions, activists may want to contact these groups, or refer to the
resource list and bibliography attached to this file.
Conservation Law Foundation, VT
BLACK RIVER
• Successfully Opposing Snowmaking Withdrawals • Asserting the Public Trust Doctrine • Challenging an Instream Flow Analysis
Skiing is big business in New England, but in recent years shortages of
natural snow have forced ski resort operators to rely more and more on artificial
snowmaking to keep their resorts open. However, water withdrawals for
snowmaking can place a considerable strain on river ecosystems, and especially
upon fish populations that are dependent upon year-long flows to survive and
reproduce.
32
In early 1988 the Vermont Agency of Natural Resources issued a Stream
Alteration Permit to Okemo Mountain Ski Area so that they could build a facility
to withdraw 3000 gallons per minute from the Black River for snowmaking. This
permit required a minimum stream flow of 0.5 cfsm (cubic feet per second per
square mile of upstream watershed). As with any large development in Vermont,
it was also necessary for Okemo to obtain an Act 250 permit. In June 1988, the
hydro-electricity producers downstream and Okemo signed an agreement that
Okemo would pay the electricity producers by the cubic foot for the water that
was withdrawn from the river. With this agreement the producers dropped their
opposition to Okemo's request for the Act 250 permit.
The District Environmental Commission, which issues Act 250 permits,
placed a minimum flow on Okemo's permit application, requiring Okemo to
maintain a minimum flow of 1.0 cfsm past the point of withdrawal. This figure
was based on US Fish and Wildlife Service standards on spawning habitat in New
England. The District Environmental Commission did say, in issuing the permit,
that they would reconsider the flow limitation if Okemo did a site specific study
of fish habitat.
Okemo did an Insteam Flow Incremental Methodology (IFIM) study and
applied for an amendment to the permit requesting that the minimum flow be
lowered to 0.5 cfsm. the Connecticut River Watershed Council volunteers raised
a number of issues at the hearing, in addition to reviewing the implications of the
fish study.
In January 1990 the District Environmental Commission denied
permission for flows below 1.0 cfsm. Okemo appealed the decision to the
Vermont Environmental Board, which raised questions about fish habitat, ice
impacts, and water withdrawals again, but this time in light of the public trust
doctrine and Section 67 of the Vermont Constitution.
------------- ~----~~~--~
33
The Conservation Law Foundation requested party status in the appeal and
objected to Okemo's appeal on several grounds. First, they argued that the public
trust doctrine prohibited the VEB from damaging the public values of the Black
River in order to divert more water to a private use. Act 250 requires that an
applicant for increased water withdrawals demonstrate that the increase "will not
unnecessarily or unreasonably endanger the public or quasi-public investment in
the lands, or materially jeopardize or interfere with the function, efficiency, safety
of or the public's use or enjoyment of or access to" the area involved. l CLF
argued that fisheries, particularly game fish such as trout, represent considerable
public resources that produce tax revenues from sales and licenses, and that the
Black River is a critical public resource that is used for recreation, fishing,
swimming, and other activities which provide money to local industries.2
Secondly, CLF charged that Okemo had not demonstrated that its need for
more water for snowmaking could not be met via more efficient use of its
existing withdrawals. Act 250 also requires the applicant to show that it has
exhausted all reasonable storage and ponding operations options. CLF argued
that Okemo had not adequately considered the option of increasing the storage
capacity of a flood-control reservoir connected to its snowmaking system or of
constructing additional storage for water at high-flow periods.
Finally, they claimed that Okemo's evidence presented in the IFIM study
demonstrated that withdrawals would significantly harm fish populations.
Although the IFlM method is widely used and generally considered the most
sophisticated tool available for instream analyses, it also has several limitations.
The study of the Black River conducted by Okemo did not include an analysis of
how Okemo's increased withdrawals would affect winter freezing patterns in the
110 V.S.A. #6086 (a) (9) (K) 2CLF, pg. 44.
34
river. This can be a particularly important issue in cases of snowmaking, because
winter, when snowmaking withdrawals occur, is also a crucial time for the
incubation of trout eggs. If water levels are too low, trout spawning areas can be
damaged and ice can be produced too soon or can form "anchor ice" which
freezes to the bottom of the streambed and can rip up fish eggs when it breaks up
in the spring.3 Nor does the IFIM evaluate aquatic insects and macro-
invertebrates, which compose a considerable portion of the food source for many
coldwater fish such as trout. Okemo's IFIM study estimated that the Black River
would be below minimum flows an additional 51 days per year, and eLF argued
that this would have a detrimental effect upon the trout population.4
The Environmental Board denied Okemo's application for an increase in
water withdrawals on the grounds that the IFIM study did not sufficiently
consider winter freezing patterns or macro-invertebrate populations, that further
harm to fish populations would negatively affect the public's use of the Black
River, and that other sources of water for snowmaking had not been exhausted.
Instead, the Board held that Okemo withdrawals could not deplete the river below
the February median flow of.78 cfsm, and required Okemo to implement a
habitat enhancement program to include public access to the river and vegetation
and structures to aid trout reproduction.s
The refusal of Okemo's application for increased water withdrawals
provides an example of a river advocacy group successfully intervening in a state
consideration of the effects a diversion will have on a river system. It is also a
successful example of an assertion of the public trust doctrine. Although public
trust values such as recreational values are often difficult to quantify or express in
3Ibid., pg. 43-4. 4Ibid., pg. 43. 5Ibid., pgs. 41, 44-5.
35
terms of economic benefit, CLF was able to argue that these values were
important to the public and made important contributions to the local economy,
based on tax revenues from the sale of fish licenses and equipment and significant
public investment in fish stocking, management, and habitat enhancement.6 This
can be a very important issue for river advocates to raise in states thai have
recognized the public trust doctrine.
For more information, contact Lew Milford, Conservation Law
Foundation, 21 E. State St., Suite 301, Montpelier, VT, 05602-2152, (802) 223
5992.
The Arizona Nature Conservancy
RAMSEY CREEK
• Communicating with the Public • Stressing the Economic Benefits oflnstream Flows
The Arizona Nature Conservancy acquired Ramsey Canyon Preserve, a
280-acre gorge in the Huachuca Mountains adjoining the Coronado National
Forest, in 1974. In 1979, the Conservancy applied for instream rights to 2,856
acre-feet of water per year in Ramsey Creek to protect the Creek's wildlife and
vegetation resources. When the notice of application was posted, however, many
residents of the Canyon area misunderstood the notion of an instream flow right,
and believed that the Conservancy wanted to construct a 200-foot dam to store the
2,856 acre-feet of water, and feared that this would ruin their water supplies and
the canyon. One objector said that "Ramsey Canyon is one of the prettiest
canyons around, with lots of wildlife, big trees and flowers which are sustained
by Ramsey Creek...Every year people come from all around just to see those trees
6CLF. pg. 44.
36
turn brilliant colors in the fall. I am afraid that if the Nature Conservancy is
.allowed to put in this dam, it will destroy the wildlife, trees, and all the beauty
that is fed by the creek."7 Downstream holders of consumptive rights for
irrigation also feared that their rights would be damaged by the Conservancy's
right.
These fears highlight the confusion and misunderstanding that often
surround instream flows, and illustrate the need for clear explanations to the local
public as to how instream flow rights operate and what the ramifications will be.
Because the Conservancy sought to keep water in the stream, downstream
irrigators' water supplies would be unaffected, and the irrigators were also
protected from any harm by the seniority of their water rights. At a public
hearing in 1981, the Conservancy clearly explained that the flow requested in
their application would not be impounded or diverted from the stream but would
be protected to maintain the canyon in its natural state, and that no water would
be consumed beyond the requirements of the natural habitat. This explanation
satisfied most of the objectors and most withdrew their protests, some on the
condition that the Conservancy's permit explicitly state that interference with the
natural flow would be prohibited, that water quality would be maintained, and no
water would be consumed beyond the requirements of the river's natural
processes.8 The Conservancy agreed to all these conditions. Some protesters
later objected on the grounds that a private party could not hold an instream right,
but the Arizona Division of Water Resources found their complaints to be invalid.
A permit for .48 cfs was granted in 1983.
In addition to displaying the need for clear explanations to the public, the
Ramsey Creek application provides an example of the economic benefits that are
7Tellmann, pgs. 13-14. 8Ibid., pg. 14-15.
37
often attached to the protection of instream flows and other aspects of the natural
habitat. Besides protecting natural habitat, the Ramsey Canyon Preserve provides
recreational opportunities and attracts people to the area. Conservancy records
show that 30,000 people visit Ramsey Canyon annually, and the Sierra Vista
Chamber of Commerce estimates that nearly three times that number of people
are drawn to the area by the preserve, 15,000 of whom stay overnight as part of
their visit.9 These statistics could provide strong arguments for further protection
of the Canyon's natural environment.
The Conservancy has monitored stream flow since 1981 and has found
that the flow level has generally been greater than the .48 cfs protected by the
water right. The Conservancy, with the encouragement of the Arizona DWR,
applied to increase the amount of their water right. A new permit was granted for
719.8 acre-feet/year, varying in water volume according to monthly hydrologic
patterns. The instream right generally oscillates between .71 cfs in July and 1.54
cfs in December. Io
For further information contact Barbara Tellmann, Water Resources
Research Center, University of Arizona, 350 N. Campbell, Tucson, AZ 85721,
(602) 621-7607, or Andrew Laurenzi, The Arizona Nature Conservancy, 300 E.
University, Suite 230, Tucson, AZ 85705, (602) 622-3861.
New Mexico Wildlife Federation • Working to Allay Fears Related to Instream Flows
New Mexico is one of three western states (the others are Oklahoma and
South Dakota) that have not incorporated instream flow protection into its prior
9Ibid., pg. 15. lOConversation with Andrew Laurenzi, AZ Nature Conservancy.
38
appropriations system.ll Furthermore, according to the New Mexico Secretary of
Natural Resources, all the surface water in New Mexico is included in already
existing consumptive water rights.l2 The New Mexico Wildlife Federation is in
the process of educating the public of New Mexico about the need for legislation
that would recognize instream values as beneficial uses, and that would allow
existing water rights to be transferred to instream use. The education process
focuses on allaying concerns that instream flows would endanger existing rights
or future water development, with a long-term goal of legislative action to
recognize instream values. To this effect, the Federation has produced and
distributed a pamphlet that describes the need for instream flow protection and
clearly explains how the prior-appropriations doctrine would protect senior users
from any interference from subsequent instream rights. The pamphlet also
stresses the economic benefits of instream values such as fisheries and recreation.
While it is far too early to tell how successful the Federation's efforts will
be, the frequent fears and misunderstandings that surround instream flows clearly
warrant a broad public education program before any legislative proposal would
have a chance at success. This is especially true in a state where most or all of the
water resources are stressed or over-appropriated, and where irrigators hold
considerable power.
For more information about the Federation's public education campaign,
contact Ed Machin, New Mexico Wildlife Federation, 3240-D Juan Tabo NE,
Suite 8, Albuquerque, NM, 87111, (505) 299-5404.
l1Fereday, et al., pg. 59. 12New Mexico Wildlife Federation and New Mexico Trout, Instream Flows, pg. 2.
39
Idaho Rivers United
NORTH IDAHO STREAMS
• Acquiring Instream Rights on Unaltered Streams • Attempting to Streamline the Instream Rights Process • Protecting Instream Flows Via Protected Rivers Programs
Like New Mexico, many of Idaho's rivers are fully or over-appropriated.
However, Idaho state law allows the Idaho Water Resources Board (lWRB) to
file for instream flow rights. Idaho Rivers United is working with the IWRB
toward filing for 16 instream flow rights on 13 relatively unappropriated and
undeveloped streams in northern Idaho,13 If approved, these rights would have
senior priority dates, and could be used to curtail or condition any subsequent
rights that would interfere with flow levels upstream of the instream right; in this
way, instream rights can be used to protect the flows of relatively pristine rivers.
However, the process for approving instream rights in Idaho is extremely
cumbersome, even more so than in most western states. Only the IRWB can
apply for or hold an instream right, and the process requires vast quantities of
documentation that state agencies generally lack the staffing to obtain.I4 But the
most troublesome bottleneck is that, after a hearing process by the Board, each
instream right must pass the state legislature, which can vote to deny the right,15
(This is not required of consumptive rights.) Idaho Rivers United will try to
persuade the board to group the river hearings together rather than hold individual
hearings for the sixteen pending instream applications for the north Idaho
13Conversation with Marti Bridges, Idaho Rivers United. Instream applications are on segments of the Kootenai, Moyie, Pack, Pend Orielle, Priest, Clark Fork, Spokane, Coeur d'Alene, S1. Maries, St. Joe, Lochsa, Selway and the Middle Fork and mainstem of the Clearwater rivers.
14Ibid. 15Ibid.
40
streams. They hope to speed the process so they can be sent to the legislature as
soon as possible.16
Opportunities also exist for protecting streamilows under the Idaho
Protected Rivers Program, which provides de facto instream protection in what is
often a less cumbersome process. Protected rivers can be designated by the State
Water Plan or basin or river plans, drawn up by the Water Resources Board, if the
Board determines that "the value of preserving a waterway for particular uses
outweighs that of developing the waterway for other beneficial uses."17 Rivers
can be designated as Natural or Recreational Rivers. Under Natural River
designation, the Board prohibits dams, impoundments, hydropower projects,
dredge and placer mining, streambed alteration, and most importantly for the
protection of instream flows, new diversions. "Natural river" is defined to be "a
waterway which possesses outstanding fish and wildlife, recreation, geologic, or
aesthetic values, which is free of substantial existing man-made...structures. "18
Under this description, natural river designation can also be used to protect
instream flows.
Anyone, at any time, can petition the IWRB to amend a component of the
State Water Plan, including adding rivers to the protected list. If the Board
determines a petition is worthy of consideration, public hearings are held, and the
Board renders a decision. Like applications for instream rights, new protected
river designations must be submitted to the state legislature for approval, although
the legislature has been less resistant to the concept of protected rivers than to that
of instream flow rights,19
16Ibid. 17Idaho Statute 42-134A (4); Idaho Rivers United, "Idaho's Protected Rivers Program." 18Ibid., Idaho Statute 42-1731 (7). 19Conversalion with Marti Bridges, Idaho Rivers United.
41
For further information, contact Ms. Marti Bridges, Idaho Rivers United,
P.O. Box 633, Boise, ID, 83701 (208) 343-7481.
Platte River Trust, NE
PLATTE AND NORTH PLATTE RNERS
• Regulating Flows Via Hydropower Relicensing • Using the Endangered Species Act
Between hydropower and irrigation interests, Nebraska's Platte River is
de-watered most of the year, damaging habitat critical to six endangered or
threatened bird species: the whooping crane, bald eagle, least tern, eskimo
curlew, piping plover, and peregrine falcon. The McConaughy Reservoir
facilities, operated by the Central Nebraska Public Power & Irrigation District
and the Nebraska Public Power District, is currently under relicensing procedures
administered by the Federal Energy Regulatory Commission (FERC). The Platte
River Trust, a non-profit organization dedicated to the maintenance of the Platte
River ecosystem, has proposed a management plan for the reservoir that
reschedules releases from the reservoir in order to enhance habitat for fish and
wildlife and to satisfy the water needs of irrigation and hydropower interests.
Currently, the Platte and North Platte Rivers are basically "turned off"
during the non-irrigation season (October through March) to meet hydropower
needs below McConaughy. Spring flows are generally too low to maintain the
river roosting habitat and wet meadow feeding areas needed by these endangered
birds. During the summer irrigation season, flows as high as 500 cfs are released
from McConaughy into the North Platte, and then almost entirely diverted into
irrigation canals. This de-watering (the Platte has been dry at nearby Grand
Island four of the past twelve years) kills the fish and other aquatic organisms that
42
constitute many birds' primary food source. Low flows also allow trees to take
root along the channel, eliminating nesting areas.20
With the McConaughy up for relicensing, the Platte River Trust has put
forth a proposal under which scheduled flows are combined with conservation
methods in a way that the Trust hopes will maintain instream flow requirements
for the crane and other waterfowl and also maintain water supply for existing
consumptive uses. The proposal provides for the storage of water in the winter
and early spring for release during the late summer and fall when flows tend to be
the lowest, and prescribes different levels of releases for instream flows,
depending on the season and the amount of water in McConaughy reservoir. It
also proposes that the FERC mandate the lining of irrigation canals to save an
additional 85,000 acre-feet per year.21
Throughout the relicensing process, Endangered Species Act requirements
have provided the Trust with the necessary leverage to secure increased flow
requirements. "It's because of ESA requirements that the debate has shifted from
whether water will be allocated to wildlife to how much water" says Paul Currier
of Platte River Trust. "It's been a very important tool in getting FERC over that
hurdle."22 Under Endangered Species requirements, the FERC is required to
consult with the U.S. Fish and Wildlife Service to develop a management plan
that accounts for the needs of endangered or threatened species. The FERC is
currently researching a draft Environmental Impact Statement for the
McConaughy project, which will include as alternatives the Trust's proposal and a
plan that manages the project for wildlife habitat. While no decision is likely to
20Platte River Trust, "McConaughy Relicensing: New Hope for the Platte River", pg. 2-6.
21Ibid.; Conversation with Paul Currier, Platte River Trust. 22Conversation with Paul Currier, Platte River Trust.
43
be made in the coming months, the Endangered Species Act has already provided
a strong argument for the protection of instream flows.
For more information on the McConaughy Relicensing procedures,
contact Paul Currier, Platte River Trust, 2550 N. Diers Ave., Suite H, Grand
Island, NE 68803, (308) 384-4633.
The Nevada Nature Conservancy
TRUCKEE·-CARSON WATERSHED
• Purchasing Senior Water Rights • Addressing Basin-wide Water Use Conflicts
The Truckee and Carson Rivers flow east from California's Sierra Nevada
into Nevada's Great Basin, where they feed Pyramid Lake, Nevada's largest lake,
Stillwater Marsh, and Carson Lake, and wetlands of the Lahontan Valley. The
area is home to two rare fish, the endangered cui-ui, the threatened Lahontan
cutthroat trout, and one of the largest white pelican rookeries in North America.
Yet Nevada is also the nation's driest state, and conflicts over water use have been
intense for many years. The complexity of the competing interests in the
Pyramid Lake/Stillwater Marsh area--two states, four municipalities, two Indian
tribes, several federal agencies and conservation groups, to name a few--have led
some to call the basin "the Middle-East of water wars."23
Within this tangled web, the Nevada Nature Conservancy has been
working to protect and restore natural values by purchasing existing water rights
and using them to protect the river and wetlands. Since December 1989, the
Conservancy has purchased 14 different water rights (some with very senior
23Yardas, David, "Restoring Endangered Ecosystems: The Truckee--Carson Water Rights Settlement", pg. 18-19; The Nature Conservancy, "Pyramid Lake/Stillwater Marsh" Basin. Range. & Rimrock. pg. 4.
44
priority dates) totaling 6,357 acre-feet, at the price of $1150 per water-righted
acre, with some funding available through the Land and Water Conservation
Fund and a five million dollar bond measure passed by the State of Nevada.24
The Conservancy's goal is to obtain enough water rights to protect a wetland
ecosystem of 25,000 acres, which will take several more years to accomplish.2s
Yet because of the many conflicting water uses in the Truckee-Carson
Basins, the Conservancy has taken steps to integrate its water rights acquisition
program with other water uses in the basin in order to provide a greater degree of
comprehensive water management for the basin. Following its stated purpose
that "The Conservancy's involvement with Pyramid Lake/Stillwater Marsh is
based on the belief that humans and nature must coexist", the Conservancy works
closely with the Truckee--Carson Irrigation District to target water rights
purchases to marginal farmland and to help farmers reinvest in more productive
farming assets. To help maintain the economic base of the area, the Conservancy
is also working with Churchill County to encourage the development of land
distant from the wetlands and that is not ecologically significant.26
Another important element of the efforts to address the many different
pressures on the Truckee-Carson water supply is The Truckee--Carson--Pyramid
Lake Settlement Act, passed by Congress in November, 1990. The Act seeks to
accommodate environmental interests, Native American claims, and existing
consumptive uses and the local economies dependent on them. It is a tall order,
but one that responds to a situation very common in the American West.
To address the ecological needs of the endangered cui-ui and threatened
Lahontan Cutthroat Trout, the Act requires the implementation of species
24Conversation with Graham Chisolm, Nevada Nature Conservancy. Some funding is also available due to the Truckee-Carson--Pyramid Lake Settlement Act.
2SConservancy, pg. 4. 26Ibid.
45
recovery plans for Pyramid Lake. The Secretary of the Interior is directed (in
addition to instituting the recovery plans) to maintain 25,000 acres of wetlands in
the Lahontan VaHey, including 14,000 at Stillwater National Wildlife Refuge and
10,000 at Carson Lake, to maintain biological diversity and fish and wildlife
habitatP Because maintaining these wetlands requires a sufficient amount of
water, the Act provides for an agreement between the Sierra Pacific Power
Company, which operates reservoirs on the Truckee River, and the Pyramid Lake
Paiute Tribe that will provide water releases to aid spawning cui-ui. The Act also
provides for the purchase or lease of water rights from voluntary sellers by the
U.S. Fish and Wildlife ServiCe to enhance Lahontan Valley wetlands and the
Pyramid Lake fisheries.28 The Fallon Naval Air Station is required is required to
implement a program for reduced water use, with the saved water to be used for
fish and wildlife purposes. Drought-year conservation planning is also mandated
for the Lake Tahoe Basin and the Reno-Sparks area. State and local governments
and the U.S. EPA are required to investigate the possible reuse of municipal
wastewater for wetland or other beneficial use.29
While much of the Act's effectiveness depends upon its implementation,
the Truckee-Carson Settlement provides a model that may apply to many basins
in the Western U.S., where water is scarce and divided between many different
human and environmental needs. The Truckee--Carson Water Rights Settlement
Act and the acquisition of water rights by the Nature Conservancy both represent
attempts to integrate these needs into a broader water-management concept.
27Yardas, pg. 19-20. 28Ibid. Obtaining water rights to the full extent of the Act could require between $50
and $120 million; Conversation with Grahm Chisolm, Nevada Nature Conservancy. 29Ibid, pg. 19-21.
46
For more information, contact Graham Chisolm, The Nature
Conservancy, Northern Nevada Project Office, 1885 S. Arlington Ave., Suite 1,
Reno, NV 89509 (702) 322-4990.
Northern Lights Research and Education Institute, MT
CLARK FORK RIVER
• Removing Barriers to Successful Water Management
Over one-third of Montanafs population lives within the drainage of the
Clark Fork River, which flows from Anaconda, Montana, into Idaho's Lake Pend
Oreille.30 The Clark Fork, once one of the finest fisheries in the Northern
Rockies, is now highly degraded by human uses, such as agriculture, mining,
hydropower generation, and timber production. The Clark Fork is also a focus
for environmental groups and state and federal agencies. Preserving instream
flow is a critical element in protecting and restoring the river's natural values.
Unfortunately, the intensity of competition between different water users has
blocked instream flow protection, Superfund and other cleanup and restoration
projects. The Northern Lights Institute, a non-profit research group focused on
resolving conflicts related to natural resources, has been working to reduce the
hostility between these different groups and advocating a negotiated settlement
that addresses overall water management needs.
Ironically enough, Montana has provisions by which the state could
protect instream flows on the Clark Fork. Under Montana law, a state agency can
petition the Board of Natural Resources and Conservation to reserve unallocated
flows for fish, wildlife, and recreational uses. Since this system was put in place
in 1979, only one reservation has been established, on the Yellowstone River in
30Northern Lights Research and Education Institute, "Clark Fork Project", pg. 3.
47
1980; however, this reservation provoked an intense backlash by holders of
consumptive water rights. The Montana Department of Fish, Wildlife, and Parks
attempted to place a similar reservation on the Clark Fork in the mid 1980's, but
agricultural interests, who hold over 95% of Montana's consumptive rights, were
able to block the state's efforts.31 By 1990 the reservation process, which had
been relatively smooth on the Yellowstone, had become highly contested between
environmental and consumptive concerns, and was completely stalled.
The Northern Lights Institute noted that "if the existing water users in the
[Clark Fork] basin cannot develop processes that allow them to negotiate
agreements over futures uses of the river, then...we believe that Superfund,
cleanup, the protection of instream values and even the future of diversionary
uses of the river will be jeopardized in the long run. "32 The Institute then began
their Clark Fork Project with the goal of breaking the deadlock of competing
interests by bringing these interests into a negotiated settlement. A Steering
Committee was established from representatives of different water-use groups,
including agriculture, mining, hydropower, environmental concerns, recreational
interests, and state and federal agencies, all of which eventually recognized that a
negotiated settlement had the potential to be less exhausting and expensive than
the deadlocked contested cases that had dominated water politics thus far.33 The
committee gave birth to the Water Allocation Task Force, (also composed of
historic adversaries) to bring a consensus approach to water allocation issues on
the upper Clark Fork. After a year and a half, the Task Force submitted a bill
passed by the Montana legislature that closed the Clark Fork basin to further
appropriation and put instream reservations on hold for four years, during which
31Ibid., pg. 5. 32Ibid., pg. 4. 33Conversation with Gerald Mueller, Northern Lights Research and Education Institute.
48
time a comprehensive management plan for the basin would be drafted and
approved. Throughout the process, Northern Lights has acted as a mediator,
which has proven to be an essential role.
The Upper Clark Fork Steering Committee is currently amassing
background information toward completing a watershed management plan for the
basin by the time the moratorium on further appropriations or instream
reservations expires. The final management plan is to be presented to the state
legislature, the Governor, and the public by the end of 1994. The Committee is
considering forming watershed committees throughout the Clark Fork drainage to
involve local water users in the process of developing the plan and in identifying
existing water use problems.34 While the Plan has yet to be developed, the
negotiation between opposing groups has provided a possible alternative to the
stalled and hotly contested arguments in courts, legislatures, and agency processes
that have pitted river activists against powerful and monied consumptive users, in
which input from state or federal regulatory agencies was generally suspected and
unwelcome.35 The moratorium on further appropriations of water for either out-
of-stream or instream acquisitions has given both instream and consumptive
interests the opportunity to negotiate without the immediate threats of further loss
of streamflow or of harm to agricultural interests. "A lot of rivers in other
Western states have similar water-use conflicts," says Gerald Mueller, director of
the Clark Fork Project at Northern Lights. ItIf we can succeed at negotiation here,
there are many other situations where it might work. 1t36 If the project does
succeed, the could be a prime example of addressing water-use conflicts in a
34"Discussion Draft: Upper Clark Fork River Basin Steering Committee Work Plan", pg.3.
35"Clark Fork Project", pg. 6. 36Mucller.
49
more comprehensive manner than is generally possible in the arcane workings of
Western water law.
For more information, contact Gerald Mueller, Clark Fork Project
Director, Northern Lights Research and Education Institute, 210 N. Higgins,
Suite 326, P.O. Box 8084, Missoula, MT 59807-8084, (406) 721-7415, or Bruce
Farling, Conservation Director, Clark Fork-Pend Oreille Coalition, P.O. Box
7593, Missoula, MT 59807, (404) 542-0539.
Part III
Models for Instream Flow Programs
This material is designed to provide ideas for river advocates working
to improve the legislative or administrative instream flow programs in their
states. Needless to say, each state program must speak to different
environmental needs, interest groups, and patterns of water use. However,
elements of these programs may be applicable to and useful in other states and
regions as well.
Promising Legislation
Alaska
Alaska holds roughly 40% of the nation's free-flowing fresh water,
much of which has yet to be appropriated. This water is important for fishing,
recreational, tourism, transportation, and other instream uses. Over 12,000
Alaska rivers and streams bear fish, and fishing is the second-largest sector of
the state's economy, behind oil developmenL! While most state instream flow
programs exist in an environment of intense competition for water resources,
this situation has yet to develop in Alaska. Alaska therefore represents perhaps
the last opportunity in the U. S. to achieve instream flow protection in a
farsighted rather than a retroactive manner. While Alaska's current instream
flow statute is in some ways the most progressive in the Western U. S., there is
also an obvious need for improvements in certain areas. Legislation was
lAnderson, Robert, "Alaska Legislature Considers Innovative Instream Flow Law", Rivers, Vol. 2 No.3., July 1991, pg. 256.
52
proposed in 1989 and again in the winter of 1991-92 that would have addressed
these needs, but in both cases failed. However, these bills, most notably the
1991-92 proposal, still provide a model for an instream flow program that
would be very effective at protecting Alaska's instream values.
Current Statutes
Alaska follows the prior appropriation system of water allocation that is
in use throughout the Western United States. Alaska's instream flow law,
however, runs contrary to the laws of almost every other western state by
allowing individuals as well as state and federal agencies to apply for and hold
instream rights, which can be acquired for the protection of fish and wildlife
habitat, navigation and transportation, recreational, or water quality purposes.
The administrative procedures for obtaining an instream right are basically the
same as those for obtaining a consumptive right. 2
However, the Alaska statute also has some crucial defects. First, a
reserved instream right is subject to periodic review (at least every 10 years) by
the Commissioner of Water Resources to determine whether the reservation is
still in the public interest. 3 This presents no difficulty as long as uses such as
the preservation of fish habitat, recreatiQn, water quality, or transportation are
considered to be in the public interest; however, the instream right could be
eliminated if the Commissioner determined that availability for out-of-stream
use was of greater importance than these values. As Robert Anderson notes in
Rivers, a magazine dedicated to instream flow issues, this provision could allow
the state "to give with one hand and take with another. "4
2Ibid. pg. 257. 3Ibid.; A.S. 46.15.145. 4Anderson, pg. 257.
53
Secondly, requirements for extensive streamflow data have created a
disincentive for private applicant~. Only two private individuals have sought to
obtain instream reservations since the law was passed in 1980, and both were
denied due to a lack of supporting data; the only instream reservations
established to date have been those applied for by the Alaska Department of
Fish and Game. These requirements are made more difficult by the fact that no
hydrologic data is available for the majority of Alaskan rivers. Some of the
documentation needs were alleviated by regulations adopted in 1990 that reduce
documentation requirements at the time of application. Under these regulations,
an application is given the date of application as a priority date, and the
applicant is then required to quantify the instream right within three years. 5
However, the process is still time-consuming, and while Alaska law is
progressive in that it allows private individuals to acquire instream rights, it has
thus far fallen short in fulfilling its promise.
Proposed Legislation of 1989 and 1991-2
In 1989, a bill that would have protected fish habitat from water
diversions was introduced in the state legislature by Representative Cliff
Davidson of Kodiak, and backed by the Alaska Center for the Environment, a
non-profit organization dedicated to protecting Alaska's natural resources. The
bill would have required that, upon receipt of an application for an
appropriative right from a river or lake important "for the spawning,
incubation, rearing, or migration of fish" the Commissioner of the Department
of Natural Resources reserve an instream flow right to maintain fish habitat.
The amount to be reserved was set at 60% of the mean annual flow for April
5Ibid.
54
October and 30% of the mean annual flow for November through March; if
these amounts were not available, the state would reserve any water remaining
for instream rights. The flow levels were arrived at via the Tennant Method for
determining fish habitat (see section on streamflow assessment methodologies)
due to the fact that most of Alaska's streams are ungauged. The priority date
for the instream right would be the date of the bill's passage.
Development interests fought the bill in Alaska House of
Representatives, arguing that the bill was unnecessary and that out-of-stream
uses did not pose a foreseeable threat to fish habitat. Changes were also made
in the language of the bill at the urging of mining interests that stated that
instream flows were only reserved from "consumption" and not from
"appropriation" .6 This could have diminished the bill's effectiveness by
allowing the diversion of the streambed, as long as the water was then returned
to the stream. Despite these changes, the bill failed to pass.
In 1991 a new proposal was introduced to the legislature that contained
the same basic requirements as the 1989 bill, except that it included wildlife as
well as fish habitat. It also stated that an appropriation of groundwater that
"significantly influences" the amount of water for fish or wildlife habitat will
require the Commissioner to reserve an instream flow. Unlike the 1989
proposal, the 1991 legislation did not specify the amount or percentage of water
to be reserved for instream flows. The bill also exempts single-family uses,
public water supplies, and appropriations of groundwater below 5,000
gallons/day.7 However, the 1991 proposal also failed to pass the state
legislature.
6Ibid.. pg. 259. 7Ibid., pg. 260.
------ -----
55
Despite their failures, the two defeated proposals represent a vast
improvement on the current instr'eam flow program, as they would guarantee,
rather than merely allow, protection of flows for fish and wildlife habitat.
Charges leveled at the two bills that out-of-stream uses posed no future threat to
instream uses overlook the patterns of rapid population growth and water
demand that characterize the recent history of the rest of the Western U. S. As
Robert Anderson notes, "This criticism misses a fundamental point apparent to
anyone who has reviewed the destruction of fish habitat in Western states. The
time to act is when there is no crisis and when the competition for water is at a
minimum. Experience in other states demonstrates that efforts to protect
instream flows after the waters have been appropriated are at best expensive,
difficult ... and in most instances, futile. "8 Unappropriated streams in Alaska
represent a last opportunity for Western America to get instream flow protection
right the first time.
For more information, contact Christopher Estes, Statewide Instream
Flow Coordinator, Alaska Department of Fish and Game, 333 Raspberry Road,
Anchorage, AK 99518-1599, (907) 344-0541, or Cliff Eames, Alaska Center
or the Environment, 519 W. 8th. Suite 201, Anchorage, AK 99501, (907) 274
3621.
Minnesota
Minnesota is an example of a state with a strong legal framework for
protecting instream flows via the permitting system. The state legislature
adopted a permitting system in 1977 that authorized the Minnesota Department
of Natural Resources (DNR) to issue permits for water appropriations and to
8Ibid., pg. 258.
1-------
56
establish minimum levels of protected flows on all Minnesota streams and lakes.
Withdrawals for consumptive purposes are prohibited when flows drop below
protected levels, which apply to both new and already existing appropriations.
Protected flows are, according to appropriation rules, "the amount of water
required in a watercourse to accommodate instream needs, such as water-based
recreation, navigation, aesthetics, fish and wildlife habitat, water quality, and
the needs of downstream higher priority users. "9 When there is not enough
water to satisfy all needs, a priority system goes into effect; first filled are
domestic uses of water, followed by other low volume uses, irrigation and
agricultural processes, power production, and commercial, industrial, and other
high-volume use. Statutory language also includes a public trust criteria,
charging the DNR with acting to "conserve and utilize the water resources of
the people of the state and for the purpose of promoting the public health,
safety, and welfare. "10 Permits are issued, conditioned, or denied, on the
criteria of the public interest and of "reasonable use".
As of September 1989, protected flow levels had been established on 49
Minnesota streams, using various methods, including low-flow statistics and
the Tenant method. II However, lack of staffpower and other constraints in
recent years have limited the ability of the DNR to complete many studies
needed to set more protected flow levels. 12 Furthermore, Minnesota statutes do
not clearly define the level of protection to be given to instream uses, and
therefore what level of flow should be protected is a major question in
establishing flows, along with who will be affected and what benefits will be
90lson, Patricia, Dominigue, Richard, and Kruse, Gregory, An Instream Flow Program for Minnesota: Main Report, pg. 7-8.
IOIbid., pg. 5, 18; M.S. 105.39, Subd.I. llibid., pg. 14-15. 12Conversation with Greg Kruse, Minnesota Department of Natural Resources.
57
gained or lost by different levels of protection. In most cases, determining what
values should be protected amounts to a subjective determination by the DNR of
what is in the public interest, and is therefore a political decision. Those who
rely upon consumptive water use for their living are very likely to become
involved in these decision-making processes, while the constituency for
instream values--Iocal citizens as well as river activists--are unfortunately less
often involved. Public attentiveness in the protection of instream resources is
therefore a vital element of the program t s success.
The Minnesota instream flow program was tested by an unexpectedly
severe drought in 1987 and 1988. By June of 1988, many streams and rivers
had very low flows or were completely dry, and several rivers and streams with
established protected flows had appropriations suspended, and some rivers
without protected flows were severely appropriated. Two rivers, the Sauk and
the Long Prairie, were running below 1 cfs, forcing the DNR to establish
temporary protected levels that tried to accommodate both appropriator's needs
and environmental values .13
The drought highlights needs that Minnesota instream flow programs
have not yet addressed. First, there is a need for greater resources to be
devoted to the process of evaluating water use needs and to establishing
protected flow levels. Secondly, the level of protection to be given to instream
uses needs to be defined clearly, either by legislative or administrative means,
and must allow for enough protection to sustain instream values over time.
Third, increasing population and water demands have highlighted the need for
water conservation measures to help alleviate some of the conflicts between
instream and out-of -stream uses. 14
1301son, et aI., pg. 23-4. 14Ibid., pg. 64.
58
For more information about Minnesota's instream flow protection
programs, contact Greg Kruse, Instream Flow Specialist, Minnesota Department
of Natural Resources, Division of Waters, 500 Lafayette Road, S1. Paul, MN
55155-4032, (612) 297-2402.
Model Legislation
In 1991, Rivers, a journal dedicated to instream flow protection,
developed a model for permitting legislation in riparian states, based on
programs such as Minnesota's. Robin Truitt, a Colorado attorney, suggests
explicit language, akin to Minnesota's program, stating that the state regulates
water resources in the interests of the public, and that all private water use,
surface and groundwater, is subject to the criteria of beneficial and reasonable
use, defining these criteria to be "the use of water in such quantity as is
necessary for economic and efficient utilization in a manner reasonable and
consistent with the public interest. "15 The model legislation exempts users of
less than 300,000 gallons per month for domestic use from regulation, noting
that the cost of regulating such small users would exceed the benefit. The state
water board would have the authority to initiate a water management plan when
it determines that a stream has substanti~l instream values and that water-use
and hydrologic patterns are likely to adversely impact instream values. If the
board determines that these conditions exist, it then formulates a water
management plan and holds a public hearing relating to the plan. The board
then issues protected levels for the stream's instream values, and can restrict or
prohibit any water uses that interfere with the protected level. 16 If maintaining
15Truitt, pg. 38. 16Ibid., pg. 34-5.
59
this protected level requires the restriction of existing water withdrawals, the
board "shall consider the availability of alternative water supplies ...water
storage, other mitigation methods ...the prevention of wasteful and unreasonable
uses, and the socioeconomic impacts of such restrictions on the potentially
affected water users. "17
Permits are also transferable among users, subject to approval of the
board. As mentioned earlier, under this model legislation, permits are granted
for variable durations not to exceed 50 years, which allows the state to re
evaluate water use patterns. Violators are fined $2,500 for each day of
violation. 18
Truitt's model legislation, unlike the Minnesota statute, does not
mandate protected flows on all the state's rivers and streams; rather, it
authorizes the state to protect flow levels in areas where they are threatened or
likely to be threatened. Dependi~g on specific circumstances, this could either
be an advantage or a disadvantage. One argument against this system is that it
might produce a situation where instream flow levels are not established until
river values are already under considerable threat; this could result in the need
to curtail existing water uses in order to protect instream flows, which would
make the balance between instream and socioeconomic values more difficult to
achieve. However, this system also frees state agencies from the arduous and
resource-draining task of surveying all of a state's rivers to establish instream
flow levels.
Virginia (upon whose legislation Truitt's model is based) has over 3000
miles of streams, and the Virginia Water Control Board does not have the
resources to survey them all. Virginia is also a relatively wet state, and at press
17Ibid.. pg. 35. 18Ibid.• pg. 35-6.
60
time there have not been more instances of intense water conflict than the state
has had the ability to address before they reach a state of crisis. 19 It is also
worth noting that the 1977 legislative mandate to establish protected flows on all
Minnesota rivers and streams proved a considerable burden on the MN Division
of Waters and has still not been completed. A system such as Minnesota's
would be more appropriate for states with higher levels of water demand, or
where state agencies could be given the resources to carry out the needed
studies in a timely manner. A possible compromise between the two systems
would be to mandate protected flows on-all streams, with priority given to areas
threatened with overallocation.
For more information refer to Truitt, Robin, "Model Legislation
Providing for Instream Uses of Water in Riparian Water Allocation Systems",
in Rivers, Vol. 2, No.1, Jan. 1991, pgs. 31-43, or contact Joe Hassell,
Virginia State Water Control Board, P.O. Box 11143, Richmond, VA 23230,
(804) 527-5072.
Washington Department of Ecology
Methow, Okanagon, and Wenatchee Rivers eEnforcing Instream Flow Rights During Low Flows
No legislative program, however good, can protect instream flows if it is
not enforced effectively. In the summer of 1985, flows on Central
Washington's Methow, Wenatchee, and Okanagan Rivers fell below the
designated minimum flow levels set by the Department of Ecology (WDE) in
1976. Throughout the summer, WDE encountered several technical procedural,
and legal difficulties that severely hampered their ability to enforce low flows
19Correspondence with Joe Hassell, Virginia State Water Control Board.
61
and curtail the withdrawals of holders of consumptive rights. The difficulties
WDE experienced provides lessons about the enforcement process that apply to
other states.
Public Notice
One aspect that greatly hindered enforcement and generated hostility was
the lack of public notice prior to enforcement. In 1985, information such as
current property ownership and telephone numbers of water rights holders in
the Methow basin was unavailable, and therefore it was impossible to notify
water users that their rights would be curtailed. Notification was simply posted
at headgates of consumptive water projects telling the user that he was required
to stop diverting water until instream flows were met. This practice met very
high resistance from water users, so much so that a number of water users
contacted their state representatives, one of whom called a public meeting at
which WDE explained its enforcement program. At this meeting, WDE was
criticized for its lack of public notification on enforcement issues.
In the Okanagon basin, where WDE had completed a current list of
rights-holders and their telephone numbers and was able to call each user a
week before posting enforcement notices, and in the Wenatchee basin, where
water rights were almost all under two years old and holders were more aware
of the minimum flow program, users were much less resistant to enforcement. 20
This highlights the importance of both giving advance notice to users whose
water supply will be halted and of generally keeping users informing water
20Barwin, Robert, Slattery, Kenneth, and Shupe, Steven, "Protecting Instream Resources in Washington State", Instream Flow Protection in the Western United States: A Practical Symposium, pg. 16-17.
62
users about the workings of the minimum flow conditions on their permits, and
how they are affected by minimum flow requirements.
The Need for Changing Instructions
Flows on the Okanagon, Methow, and Wenatchee Rivers were below
minimum flows for roughly six weeks; however, during mid-August of 1985 the
flows fluctuated above minimum flow levels for several days. This accentuated
the difficulty of advising some users that they could resume withdrawals, and
then notifying them again a few days later that flows had dropped below
minimum levels. Again, this was far more efficient in the Okanagan valley
where WDE had the phone numbers of rights holders and could notify them
promptly. In the Wenatchee and Methow basins, notification was largely
impossible: by the time users were informed by mail or posting that they could
resume diverting the flows had dropped again. This once again highlights the
need for maintaining current phone numbers and other information about water
users.
Inadequate Penalties
The fine for violation of enforcement orders in Washington was $100
per day of violation in 1985, and the low flow levels of 1985 demonstrated that
this penalty was not sufficient. Many water users simply opted to continue to
divert water and pay the fine rather than stop irrigating their crops. One user
continued to irrigate an orchard for 13 days and was fined $1,300. He did not
stop diverting until the Okanagan County Superior Court issued a restraining
63
order, but obtaining the order took three to four weeks.21 Instances such as this
made it clear that higher penalties were needed to make enforcement effective.
Modifications and Recommendations
After 1985, WDE took some steps to improve its enforcement program,
based upon the notions of improving communication with water users and
increasing knowledge about minimum flow requirements and how they affect
consumptive water rights.
One aspect of the WDE improvements was a computer link with the
USGS office in Tacoma, WA, that allowed WDE to access data from over 100
hydrologic stations within two hours. This was combined with a database of
current water rights holders, including priority date, size of right, and address
and phone number. These two systems enabled WDE to assess stream levels
and notify users of curtailment more quickly during periods of low flow in
1987.22
WDE also began sending a semi-monthly letter to all water users and
local government officials between March and August. The letters contain a
summary of information on river trends in the preceding two weeks and
information from the most recent Water Supply Outlook from the U.S. Weather
Service and the Soil Conservation Service. The letters also list a toll-free
number, operated June-October, that water users can call to receive the latest
flow levels and that would inform them whether their diversions are being
regulated. Public meetings are now held each year in June of July in each basin
in which flows are likely to drop beneath established minimums. These
meetings provide information and explain the enforcement process.
21Ibid. pg. 17-18. 22Ibid., pg. 20-1.
64
When minimum flows are not being met, regulatory orders are sent to
water users, requiring them to follow the toll-free line instructions, which WDE
is now able to do due to the database of rights-holders. Although the issue of
raising penalties to act as a more effective deterrent has not been addressed,
these changes did make enforcing minimum flow levels much more effective in
1987.
For more information, contact Brad Caldwell, Washington Department
of Water Resources, P.O. Box 47600, Olympia, WA, 98504-7600, (206) 459
6127.
65
Water Conservation Programs
Conserving water represents an important part of any instream flow
program by reducing demand and therefore relieving some of the stress placed
on natural ecosystems. Unfortunately, most water allocation systems contain
little or no incentive for consumptive users to adopt for efficient techniques.
(Although some permitting systems can require this) Because a water user pays
only a nominal fee to cover administrative costs when he obtains a water right
or use permit, there is no reason for him to adopt often-expensive conservation
methods. Some states, such as Washington, have considered raising fees for
obtaining water rights considerably and incrementally in accordance with the
amount of water to be appropriated, so as to discourage excessive
appropriations. Washington and Oregon have also passed legislation designed
to encourage conservation and also provide water for instream flow rights.
While neither of these programs .has been successful yet, with some changes
they may still provide models for other state programs.
Trust Water Rights Program, WA
In 1989 and 1991 the Washington State Legislature established the Trust
Water Rights Program, which allows for the transfer of conserved water to new
uses, including instream rights. Although the program has yet to be
implemented, it could work to increase water conservation and, in the words of
the legislature, "to provide for presently unmet and emerging needs. "23
The Trust Water Right program allows the Washington Department of
Ecology to acquire water rights, including rights to conserved water, either
23Conversation with Lori Bodi, American Rivers.
66
temporarily or permanently, by sale, lease or donation, from a current holder of
a valid water right. WDE can then use the trust water for either instream or
offstream uses, with the priority date of the original water right intact. The
transfer to Trust water rights need not be the entire amount of the original water
right.
The Trust Water Rights program could provide incentives for increasing
water-use efficiency that currently do not exist under Washington's prior
appropriations doctrine of water use. Under Washington water law, it is illegal
to expand water use beyond the specifications of the initial water right. For
example, suppose a farmer holds a water right to irrigate 100 acres of cropland,
and by modernizing his irrigation system he could increase efficiency by 30 %.
Under the prior-appropriations doctrine, he is prohibited by using this saved
water for any other use, such as irrigating another 30 acres of crops; he would
be required to return it to the stream. Therefore, there is no incentive for the
farmer to use water more efficiently; in fact, he stands to lose money from the
cost of implementing conservation measures.
Under Trust Water Rights, however, the farmer could transfer (sell,
lease or donate) all or some of his conserved water to the state, to be applied to
other needs or to instream flow rights, with the same priority date as the
original water right, while using the remainder on his land. In addition, as
Lorri Bodi of American Rivers' Northwest Office points out, Trust Water
Rights also provides an opportunity for third parties, such as river advocacy
groups, to playa role in promoting efficient water use by helping finance
efficiency measures in return for a certain amount of the conserved water being
donated to the Washington Department of Ecology as an instream flow right. 24
24Ibid.
67
(Under Washington law, only the WDE can hold and instream right) Short-
term leases during dry periods could also provide water users with greater
flexibility than selling or donating water rights.
The Trust Water Rights program is currently operating as a pilot project
on the Methow, Dungeness, and Yakima Rivers, with the possibility of
expansion to eight other rivers and then statewide. As yet, no transfers of water
rights have taken place. There are two main obstacles to the program: the lack
of funding and the difficulty of technically administering water transfers. 25
Currently, the Trust Water Rights Program has notbeen funded by the
state, and according to Bodi it is not likely to be in the next few years. 26 This
requires that river advocacy groups take the initiative in generating funds for
leasing, or buying parts of water rights to encourage efficiency and to redirect
water towards instream flow protection. Perhaps by providing this momentum,
river groups could show the program's potential and make it a priority for the
Washington state government.
The process of documenting water transfers has two requirements, both
of which can place a strain on the Department of WDE's resources. First, the
party conserving water must hold a valid water right. While this sounds easy
enough to ascertain, Bodi notes that WDE has had difficulty maintaining its
database of water rights holder throughout the state. WDE is considering
raising its fees for processing water rights applications in order to provide more
resources for keeping track of current water rights. Second, it can be difficult
to assess exactly how much water is to be transferred and conserved. To ensure
that transfers and conservation methods are enforceable, it may be necessary to
reduce the size of diversions, rather than expect water to be returned to the
25Conversation with Cynthia Nelson, Washington Dept. of Ecology. 26Conversation with Lori Bodi, American Rivers.
68
stream after use, and many are reluctant to reduce the face-value of their water
rights. "It could be difficult to make sure there's instream flow protection,"
Bodi says, "and not the illusion of instream flow protection. "27
Despite these difficulties, the Trust Water Rights Program has the
potential to add water conservation incentives into a water allocation system
where these incentives do not currently exist, and to allocate some or all of the
conserved water to instream flow rights in the process. The Trust Water Rights
Program is also likely to be less burdensome than the court-administered Public
Trust Doctrine, the only other legal pre~edent in Washington for requiring or
encouraging water conservation. Thus far, the state Supreme Court has been
reluctant to use the Public Trust Doctrine to require water conservation
methods.
For more information on the Trust Water Rights Program, contact Lorri
Bodi at the Northwest Office of American Rivers, 4518 University Way NE,
Seattle, WA 98201, (206) 545-7133, or Cynthia Nelson, Washington
Department of Ecology, P.O. Box 47600, Baran Hall, Olympia, WA, 98504
7600, (206) 459-6116.
Oregon's Conservation Statute
In 1987, the Oregon legislature passed a statute that, like Washington's
Trust Water Rights Program, sought to promote conservation and the allocation
of conserved water to instream flow rights. While Oregon's conservation
statute has yet to be successful, a few changes in the program could increase its
effectiveness.
27Ibid.
69
Under the current program, holders of consumptive water rights who
implement water efficiency projects can apply to the conservation program,
which would grant them a new water right for 75 % of the saved water, with the
remaining 25 % going to an instream flow right administered by the Oregon
Water Resources Department. Both new rights are given priority dates of one
minute after the original appropriative right. The appropriator may then use,
sell, or lease their portion of the saved water. 28
Several difficulties with the legislation have restricted the usefulness of
the program, and thus far, only two applications have been received, neither of
which is likely to be completed in the near future. The largest roadblock is that
the statute defines conserved water as "water that is irretrievably lost" to
processes such as evaporation and percolation into deep aquifers. While this
criteria was included in the bill to protect downstream users from being
damaged by having water that would ordinarily make its way back into the
stream as return flow appropriated under the conserved water right, it has
greatly reduced the amount of water available under the program, and therefore
the incentive for appropriators to install conservation measures. Another
difficulty with the program is the need for data on water use, much of which is
not available in even the most basic form. "There's a lot of very simple
information we just don't know, like how much water people are using, so it's
difficult to know how much water is being saved," says Karen Russell of
WaterWatch of Oregon, a conservation group working to protect the state's
water resources. The amount of time necessary for an application to be
reviewed and the uncertainty of how much water the user will be granted have
also deterred water users from making investments in water conservation. 29
28Conversation with Becky Kni:ag. Oregon Water Resources Department. 29Conversation with Karen Russell, WaterWatch of Oregon.
70
In attempting to improve the program, both the Oregon Water Resources
Department and WaterWatch have submitted proposals to the 1993 session of
the Oregon legislature. Both proposals change the definition of conserved water
from water that is "irretrievably lost" to the difference between the amount of
water certified by the original water right and the amount now needed to fulfill
the purpose of the right. Under the WaterWatch proposal, however, 50% of
the conserved water goes to the user, with the other half going to an instream
right. Because more water will be available for the program due to the broader
definition of conserved water, WaterWatch believes this ratio will provide
enough water for users to help realize their investment, and also direct larger
amounts of water toward instream flow rights. 3D The Department's proposal
retains the 75%/25% ratio. 31 To mitigate the possible damage by including
return flows as conserved water, the WaterWatch bill allows downstream users
to protest an application by showing possible harm to their water use. If an
application is protested, 25 % of the conserved water is given to the user, 25 %
to an instream flow right, and the remaining 50% is put in a water bank for up
to three years to mitigate the harm to downstream users, until the specific
amount needed to fill the needs of downstream users is established. When
mitigation needs are determined, the remainder is split evenly between the user
and the state's instream flow right. 32 The water bank is an important feature,
because it provides a means for resolving conflicts between applicants and
protesters that might otherwise bring applications to a standstill.
For more information about the Oregon Conservation Statute and
proposed amendments, contact Karen Russell, WaterWatch of Oregon, 92
3Dlbid. 31Kreag. 32Russell.
71
S.W. Morrison, Suite 438, Portland, OR, 97205, (503) 295-4039, or Becky
Kreag, Oregon Water Resources Department, 3850 Portland Road N.E., Salem,
OR, 97310, (503) 378-3671.
Part IV
Instream Flow Assessment Methods
Thus far, this file has largely neglected a discussion of the various
methods by which the amount of streamflow needed to sustain various instream
resources is determined. There are several methods, each with varying levels
of sophistication and cost, and not all are appropriate to all situations and to all
rivers. It should also be noted that the process of determining how much flow
should be protected by various instream flow programs is often a political as
much as a scientific assessment. For that reason, biological assessments are
usually best combined with arguments on public interest grounds, such as the
economic value of fisheries, recreation, or tourism, all of which are difficult
values to quantify. The section t.hat follows is designed to provide a brief
familiarization with the existing methods of biological assessment. 1 References
listed at the end of this document provide more detailed information.
Instream Flow Incremental Methodology (lFIM)
The IFIM method is the most widely used and the most in-depth
assessment of streamflow requirements, although it has limitations, as noted in
earlier sections. IFIM assesses the quality of fish habitat at different increments
of streamflow, based on hydrologic data and physical habitat criteria. It can
also be applied to recreational use in some cases. A computer program
(PHABISM: Physical Habitat Simulation) analyzes hydrological data and fish
lThe information in this section is taken from Wilkins. Suzanne. A Guide to State River Conservation Legislation. Appendix B, unless otherwise footnoted.
74
habitat requirements and produces an index of the ability of the site to support
habitat for a specific fish species at a particular stage in its life-cycle at varying
different flow patterns. The amount of habitat is then extrapolated to estimate
sustainable fish populations.
IFIM is a very resource intensive method. Furthermore, it does not
consider populations of aquatic macroinvertebrates, which constitute the
primary food source of many coldwater fish such as trout, nor does it consider
freezing patterns or sediment transport. IFIM does not give a specific value for
acceptable habitat under predicted conditions; rather it gives a range of values
for each flow regime, and only for one stage in a fish's life cycle. 2 As the
Conservation Law Foundation notes, it needs to be understood that IFIM does
not produce one right answer; is "a negotiating tool, not a predictive model. "3
Tenant Method (Montana Method)
The Tenant method defines eight flow classifications based on
percentages of mean annual flow values, which are available from the USGS for
many streams. Minimum flow is defined as 10% of the mean annual flow
below which short-term survival of aquatic species is not possible. Thirty
percent of the mean annual flow is considered good survival, and 60% flow is
considered excellent to outstanding. The eighth flow classification (flushing
flow) allows for the periodic flushing needed to maintain channel
characteristics. Unlike 7QlO Method, discussed below, the Tenant method
accounts for varying flow regimes and is still fairly simple and can be applied
2CLF, pg. 42. 3Ibid.
75
based on one year's data. However, it does not account for differences between
species or their life cycles.
7QI0 Flow Level
The 7Q10 flow level method defines the minimum flow necessary for
sustainable fish populations as the lowest average flow over a seven-day period
anticipated every ten years. Hydrologic records are used to determine the seven
consecutive days of lowest average flow in the past year. This flow value is
then placed in a statistical model that adapts it to fit a 10% probability of flows
being that low or lower in ten years.4 Although several states still use this
method, is it widely considered inadequate. First, if this flow level is
maintained for any length of time, as is the case with many programs that use
7QlO, most fish populations will not remain viable. The 7QlO method does not
consider the role that periodic flushing plays in maintaining channel habitat
required by many fish species. It also fails to recognize that streamflow
requirements for fish or other instream values vary during different times of the
year.
Wetted Perimeter Method
This method is designed solely to measure the flows needed to maintain
the shape of the river channel. It defines a minimum flow below which the size
of the wetted perimeter falls sharply with further reductions in flow.
Single or Multiple Cross-Section
4Conversation with David Hamilton, Michigan Department of Natural Resources.
r
76
Like the wetted perimeter method, these methods describe channel
morphology at various flows. Both use field measurements of cross-section
dimensions and hydrological parameters to predict channel characteristics at
different flow levels. The single cross-section method uses data from one site,
while the multiple cross-section method combines data from several sites.
Maximum Spawning Area F'low
This method determines the amount of flow necessary to maintain the
best spawning habitat. However, it only evaluates one flow condition by
estimating discharge (cfs) at which the maximum spawning area occurs as a
result of water velocity and depth. As its name implies, it only addresses
habitat for spawning, and not for other stages in a fish's life cycle.
Part V:
Future Instream Flow Needs
While water allocations systems are more favorable to the protection of
instream resources than they were previously, undoing the damage done to
America's rivers by the degradation of instream flows is no easy task. But it is
not impossible. Despite the inadequacies of state legislation, rising consumptive
needs, and political resistance to instream protection, this file has shown that
dedicated river advocates are making progress on a number of fronts. Due to
variations between state legislation and departmental procedures, many of the
lessons and case studies in earlier sections apply only to certain areas of the
countries, laws or instream values. Therefore, this final section will suggest
some lessons and recommendations that have broader application and speak to
the future needs of instream flow protection.
eDemystify Instream Flows
As the length of this file attests, both instream flows and the legal
systems in which they operate can be exceedingly complex. River advocates
pursuing instream flow protection should be prepared to explain these issues to
all concerned parties in an understandable manner. It should also be stressed
that in most proceedings related to instream rights--application for instream
rights, transfer of existing rights, water management plans, and so forth--the
public will be given the opportunity to comment and to object. Being sure that
both your allies and opponents understand your actions and your intentions can
,....
78
be a crucial step. It can also be very important to communicate with state
legislators and other decision-makers. Numerous cases exist (such as the
Arizona Nature Conservancy's application on Ramsey Creek discussed
previously) where hostility toward instream flows resulted from mistaken
notions of how these flows operate, what values they are designed to protect,
and how they will affect existing users. In Western states, numerous objections
to new instream flow rights have come from downstream senior appropriators,
even though both the nature of instream rights and the provisions of the priority
system ensure that these users could not'be hanned. Explaining these issues to
affected parties via direct contact, public meetings, newspaper articles, and
media coverage before the hearing process can make things much smoother in
the long run.
•Stress the Economic Benefits of Instream Flows
Too often, decisions between instream and offstream values are seen as
choices between protecting the environment and further economic development.
Many times this is not the case; fishing, recreation, tourism, and other instream
values constitute large portions of many local economies and are often
impossible without sufficient river flows. Emphasizing the economic benefits of
these values can be a powerful argument for instream flows .
• Work With State Agencies
Virtually all methods of protecting instream flow are administered by
state agencies, under both Eastern and Western systems of water law. It is
essential to have the cooperation of the appropriate agencies in order to facilitate
whatever applications, studies, and other processes must be completed. In some
79
cases it will be necessary to work with state legislatures and federal agencies as
well. Working with these agencies requires both patience and compromise.
Many state agencies are under-~nded and understaffed, and most have a sizable
backlog of applications and instream flow programs waiting to be done.
Furthermore, while many environmental groups advocate instream flows, state
agencies have the less clear-cut task of balancing instream and out-of-stream
uses, a process that is always difficult and often highly political. It will be
necessary to find allies within these agencies, and to share with them knowledge
of other instream flow protection programs that have worked well elsewhere.
-Advocate Water Conservation Programs
As populations increase, so does the demand for out-of stream water use
and the stress placed on river ecosystems. Using water more efficiently can
lower the need for more diversions and allow more water to be allocated to
maintaining instream values, and conservation methods are often less costly than
developing a new source of water. In many states, drought conditions or
increasing populations have made conservation methods an operational
necessity. Conservation can be a powerful argument for river advocates to raise
in challenging an application for a new diversion, if it can be shown that the
need can be met via water conservation, or that the party proposing the
diversion has not adequately explored alternative measures such as water
storage. Mechanisms should also be developed to ensure that conserved water
is transferred to protecting instream values, rather than simply-reallocated to
other consumptive uses.
80
-Advocate Comprehensive Basin-Wide Water Planning
Both the prior appropriation and riparian-use doctrine focus on
individual rights and case-by-case conflicts rather than long-range water needs.
All states, Eastern and Western, need greater capability to analyze watersheds
as a whole, in terms of both biological needs and present and future competing
water uses. Many states lack even the most basic information needed to keep
track of current water users. Meeting these needs will require improved data
capability, more knowledge about the interaction between surface and
groundwater and the cumulative effects of many small diversions, and greater
communication and long-range planning among the many different users of
water in a multi-party decision-making process. Currently, basin-wide planning
has not been legislated in most states and is largely beyond the budgetary ability
of many state agencies, although it has occurred in some states such as Idaho
and Minnesota. Only by such long-range resource evaluation can both instream
and offstream needs be met in the future.
-Assert the Public Trust Doctrine
In states where the public trust doctrine has been established (either by
legislative mandate or judicial decision) a powerful tool exists for addressing
instream flow needs. The doctrine that the state manages water in trust for the
public allows for the re-evaluation of already established water uses if it can be
shown that these uses are contrary to the public trust. This is one of relatively
few opportunities to address past uses (and abuses) of river systems. Public
trust determinations are also a forum in which public uses of rivers, such as the
economic value of instream uses become very strong arguments, along with
81
public access to rivers and aesthetic values, which are much more difficult to
quantify.
eAcquire Senior Water Rights
Although they can be expensive to acquire, senior water rights represent
a major opportunity to protect instream flows in prior appropriation states
where water is in high demand and streams are often over-allocated. Unlike
newly-filed instream rights, senior rights have the ability to require upstream
users to leave certain amounts of flow in the stream. As has been mentioned
earlier, in many Western states a senior consumptive right must be given to the
state if transferred to an instream right. Senior rights can also be transferred
downstream and exercised as a consumptive right, although the volume of the
water right may be reduced to prevent harm to downstream users dependent
upon return flows.
Senior rights can also be leased rather than purchased, which provides
for more
flexibility at lower cost. This allows river advocates to lease a senior
water right for instream use during months of low flow when fish populations
or other instream values are threatened.
Part VI:
Instream Flow Resource Guide
SYSTEM OF STATE WATER AUTHORITY STATE WATER AGENCY AND CONTACTS
LAW
Alabama Riparian No current state jurisdiction over water withdrawals
Alaska Prior Christopher Estes Appropriation Statewide Instream Flow Coordinator
Alaska Dept. of Fish and Game 333 Raspberry Road Anchorage, AK 99518-1599 (907) 267-2142 home (907) 248-1967
Arizona Prior Greg Buschner Appropriation Supervisory Hydrologist
Arizona Dept. of Water Resources 15 South 15th Ave. Phoenix, AZ 85007 (602) 542-1553
Arkansas Permitting Earl Smith (50l) 682-1611 Tammy Avery (501) 682-3959 Ark. Soil & Water Conservation Comm. 101 E. Capitol, Suite 350 Little Rock, AS 72201
INSTREAM FLOW ADVO
Don Elder Cahaba River Society 2717 7th. Ave. South, Suite Birmingham, AL 35210 (205) 322-5326 Working to increase water-us
efficiency and opposing th struction of the Locust For
Cliff Eames Alaska Center for the Environ 519 W. 8th, Suite 201 Anchorage, AK 99501 (907)274-3621 Was working on attempted IF
Legislation with State Rep Davidson of Kodiak.
Barbara Tellman Water Resources Research Ce University of Arizona 350 N. Campbell Tucson, AZ 85721 (602) 621-7607 and Andrew Laurenzi The Nature Conservancy 300 E. University, Suite 230 Tucson, AZ 85705 (602) 622-3861 (has obtained water rights alo
Ariz. rivers and published to obtaining instream flow under AZ state law.)
84
California Mixture of Riparian and Prior Appropriation
Colorado Prior Appropriation
Connecticut Permitting
Delaware Permitting
Florida Riparian
Georgia Riparian
State Water Resources Control Board Division of Water Rights P.O. Box 2000 Sacramento, CA 95812-2000 (916) 322-4503 John Turner CA Dept. of Fish & Game Environmental Services Division 14169th. St. Sacramento, CA 95814 (916) 653-4875
Dan Merriman Colorado Water Conservation Board 1313 Sherman St., Room 721 Denver, CO 80203 (303) 866-3441 and Jay Skinner Colorado Division of Wildlife 6060 Broadway Denver, CO 80216 (303) 291-7260
Rick Jacobsen CT Dept. of Environmental Protection 165 Capitol Ave. Hartford, CT 06106
Stewart Lovell DE Department of Natural Resources Division of Water Resources P.O. Box 1401 Dover, DE 19908 (302) 739-4793
No jurisdiction over water withdrawals
Napoleon Caldwell, Program Mgr. Georgia Dept. of Natural Resources Environmental Protection Div. Floyd Tower East, Suite 1166 205 Butler St., S.E. Atlanta, GA 30334 (404) 656-3094
Ron Stork Friends of the River 909 12th. St., Suite 207 Sacramento, CA 95814 (916) 442-3155: American River
Robert Wigington The Nature Conservancy Western Regional Office 2060 Broadway, Suite 230 Boulder, CO 80302 (303) 444-1060 and Joe Greiner Colorado Rivers Outfitters Association P.O. Box 1150 Buena Vista, CO 81211 (719) 395-2112 (obtaining reservoir releases for
recreation)
Nathan Frohling, Executive Director Farmington River Watershed Assoc. 749 Hopmeadow S1. Simsbury, CT 06070 (203) 658-4442
85
Hawaii Prior State of Hawaii Appropriation Dept. of Land & Natural Resources
Commission on Water Resource Mgt. P.O. Box 621 Honolulu, HI 96809 (808) 587~0214
Idaho Prior Bill Graham Ms. Marti Bridges Appropriation Idaho Department of Water Resources Idaho Rivers United
2735 Airport Way P.O. Box 633 Boise,. ID 83705 Boise, ID 83701 (208) 334-2190 (208) 343-7481
Currently working to impel I establish minimum flows stream reaches in northern and arguing for public trus concerns on the Boise Riv
and Christopher Meyer Givens, Pursley, Webb & Hu Suite 200, Park Place 277 N. Sixth Street Boise, ID 83702 (208)342-6571
Iowa Permitting Iowa Dept. of Natural Resources Wallace State Office Building East 9th and Grand Streets Des Moines, IA 50319-0034 (515) 281-5145
Illinois Riparian Gary Clark Illinois Department of Transportation Div. of Water Resources 3215 Executive Park Drive P.O. Box 19484 Springfield, IL 62794-9484 (217) 782-3488
Indiana Riparian Jim Hebenstreet (317) 232-4160 Division of Water 402 W. Washington, Rm. W264 Indianapolis, IN 46204
86
Kansas Prior Appropriation
Kentucky Riparian
Louisiana Riparian
Maine Riparian
Maryland Permitting
Jim Bagley KS Div. of Water Resources 901 S. Kansas Ave. Topeka, KS 66612-1283 (913) 296-3717 and Tom Stiles (913) 296-4094 Kansas Water Office 109 SW 9th. St. Suite 300 Topeka, KS 66612-1249 Div. of Water Resources is the
administrative agency; KS Water Office is the Principal water planning agency.
Pam Wood Water Resources Board Division of Water 14 Reily Road Frankfurt, KY 40601 (502) 564-3410
No state jurisdiction over withdrawals. Richard Duerr LA Dept. of Environmental Quality P.O. Box 82215 Baton Rouge, LA 70884-2215 (504) 765-0634
David Courtermanche Department of Environmental Protection State House Station 17 Augusta, ME 04333 (207) 289-2811
Robert Miller Water Resources Administration Tawes State Office Building E-2 Annapolis, MD 21401 (410) 974-3848
Dan Sosland Conservation Law Foundation. 60 Ocean St. Rockland, ME 04841 (207) 594-8107 Working to obtain greater flow regime
from hydro projects. CLF has also been involved in negotiations over IFIM flows related to ski resorts.
Also Gordon Russell USF&WS 1033 S. Main St. Old Town, ME 04468 (207) 827-5938 re: Assessment process.
Massachusetts Riparian Ms. Karen Pelto Massachusetts Riverways Program Dept. of Fish, Wildlife and Envl. Law
Enforcement 100 Cambridge St., Room 190 I Boston MA 02202 (617) 727-1614 (works with local enviros) and Victoria Epstein or Peter Phippen MA Office of Water Resources 100 Cambridge St., Room 1304 Boston, MA 02202 (617) 727-3267
Michigan Riparian Dan Pearson Division of Natural Resources Land and Water Management Division P.O. Box 30028 Lansing, MI 48909 (517) 335-2690
Minnesota Permitting Mr. Greg Kruse MN Dept. of Natural Resources Division of Waters 500 Lafayette Road St. Paul, MN 55155-4032 (612) 296-4800
Mississippi Permitting Lloyd Long Department of Environmental Quality Office of Land and Water Resources P.O Box 10631 Jackson MI 39289-0631 (601) 961-5203
Missouri Riparian Steven MacIntosh, Director Water Resources Program P.O. Box 176 Jefferson City, MO 65102
87
Anne Blackburn Charles River Watershed Ass 2391 Commonwealth Avenue Auburndale, MA 02166 (617) 527-2799 Working to protect flows on t
Charles River
88
Montana Prior Appropriation
North Permitting Carolina
North Dakota Prior Appropriation
Nebraska Prior Appropriation
Liter Spence Water Resources Supervisor MT Dept. of Fish, Wildlife, and Parks 1420 East 6th. Ave. Helena, MT 59620 (406) 444-3888
Steven E. Reed Division of Water Resources P.O. Box 27687 Raleigh, N.C. 27611 (919) 733-4064
Mike McKenna Chief, Natural Resources Division State Game & Fish Dept. 100 N. Bismarck Expressway Bismarck, ND 58501 (701) 221-6300
Michael Jess, Director Susan France Department of Water Resources 301 Centennial Mall South P.O. Box 94676 Lincoln, NE 68509-4676 (402) 471-2363 and Russ Lock (402) 471-5438
Game and Parks Commission 220 N. 33rd. St., P.O. Box 30370 Lincoln, NE 68503 (402) 471-0641
Gerald Mueller Northern Lights Research & Educ.
Inst. 210 N. Higgins, Suite 326 Missoula, MT 59807-8084 (406) 721-7415 and Stan Bradshaw, Natural Resources Dir Montana Trout Unlimited Helena, MT (406) 443-4171 and Bruce Farling, Conservation Director Clark Fork--Pend Oreille Coalition P. O. Box 7593 Missoula, MT 59807 (406) 542-0539 RE: Negotiation and development of
mgt. plan for Lower Clark Fork. and Tony Jewett Montana Wildlife Federation P.O. Box 1175 Helena, MT 59624 (404) 449-7604
Paul Currier Platte River Trust 2550 N. Diers Ave., Suite H Grand Island, NE 68803 (308) 384-4633 Working on major dam FERC
relicensing and attempting to maintain flows for endangered species.
i'~~----------------
89
Nevada Prior State Water Engineer Graham Chisolm Appropriation Division of Water Resources The Nature Conservancy
123 W. Nye Lane Northern Nevada Special Proj Carson City, NV 87910 1885 S. Arlington Ave., Suite (702) 687-4380 Reno, NV 89509
(702) 322-4990 and Robert Wigington TNC-Western Regional Offic 2060 Broadway, Suite 230 Boulder, CO 80302 (303) 444-1060 Purchasing senior water right
maintain wetlands.
New Riparian Katherine Ueland Dorothy "Dijit" Taylor Hampshire N. H. Dept. of Water Resources New Hampshire Rivers Camp
6 Hazen Drive 54 Portsmouth St. P.O. Box 95 Concord, NH 03301 Concord, NH 03302-0095 (603) 224-8322 (603) 225-8695 and
Kathy Fallon Kevin Kimball Research Department Appalachian Mountain Club P.O. Box 248 Gorham, NH 03581 (603) 466-2721 Fighting withdrawals for sno
New Jersey Permitting Diane Zalaskus, Section Chief David Peifer Bureau of Water Allocation Upper Raritan Watershed Ass 401 E. State St, CN 426 Larger Cross Rd.-RD 1 Box Trenton, NJ 08610 Gladstone, NJ 07934 (609) 292-2957 (908) 234-1852
(town-by-town watershed plan efforts. Working with GI computer imaging.)
New Mexico Prior No recognition of instream uses as Ed Machin, N.M. Wildlife Fe Appropriation beneficial 3240-D Juan Tabo NE, Suite
Albuquerque, NM 87111 (505) 299-5404 Currently involved in educati
projects in preparation for legislative campaign in the
--------- ---
90
New York Permitting
Ohio Riparian
Oklahoma Prior Appropriation
Oregon Prior Appropriation
Doug Shepard: Division of Environmental Conservation Bureau of Env. Protection 50 Wolf Road Albany, NY 12233-4756
State currently has no authority to regulate water withdrawals. Nonetheless some mechanisms are available.
Len Black Division of Water Ohio Dept. of Natural Resources or Stuart Lewis, Manager Ohio Scenic Rivers Mgr. Fountain 58, Building F Columbus, OH 43224 (518) 457-7433 Scenic Rivers prevent non-federal hydro
projects.
David Dillon or Derek Smithee Oklahoma Water Resources Board P.O. Box 150 Oklahoma City, OK 73101-0150 (405) 231-2555 With regard to state scenic rivers only: And Ed Fite 111, Administrator Oklahoma Scenic Rivers Commission P.O. Box 292 Tahlequah, OK 74465-0292
Oregon Water Resources Department 3850 Portland Road, NE Salem, OR 97310 (503) 378-8455
Bruce Carpenter New York Rivers United 199 Liberty Plaza Marine Midland Bank Building Rome, NY 13340 (315) 339-2097 Currently co-ordinating a broad
coalition to protect flows via hydro power relicensing
also Peter Skinner American Whitewater Affiliation Box 272, Snyder Road West Sand Lake, NY 12196 (518) 474-2432
Ms. Karen Russell Water Watch of Oregon, Inc. 921 SW Morrison, Suite 438 Portland, OR 97205 (503) 295-4039 Knowledgeable about instream flow
legislation and procedures; also working to improve water conservation statutes.
91
Pennsylvania Permitting Joseph Hoffman Department of Environmental Resources P.O. Box 8761 Harrisburg, PA 17105-8761
Rhode Island Riparian Mr. Rich Gottleib R.I. Dept. of Environmental Mgmt. Division of Water Supply Management 2911 Promenade St. Providence, RI 02908-5767 (401) 277-3166
South Permitting Dan Johnson Carolina SC Watershed Commission
1201 Main St., Suite 1100 Columbia, SC 29201 (803) 737-0800 Issues permits and has jurisdiction over
SC's navigable waterways and can condition to maintain flows.
also Gerit Jobsis Wildlife & Marine Resources 1921 Van Bolden Road Eastover, SC 29044 (803) 353-8232 Has jurisdiction over fisheries but no
permitting authority.
South Dakota Prior Has not recognized instream uses as Deb Rogers Miller, Exec. Dil Appropriation beneficial Technical Information Project
Box 1371 Rapid City, SD 57709 ( 605) 343-0439 and Prof. John Davidson University of South Dakota L 414 E. Clarke Vermilion, SD 57069 (605) 677-5361 Working toward recognition (
instream flows as "benefic
Tennessee Riparian Louis Bordenave TN Dept. of Environment and Conserv. Natural Resources Section 7th Floor L & C Annex 401 Church S1. Nashville, TN 37243-1534 (615) 532-0715
------ - ------
92
Texas Prior Appropriation
Utah Prior Appropriation
Virginia Permitting
Vermont Permitting
Washington Prior Appropriation
George Staff Texas Water Commission P.O. Box 13087 Austin, TX 78711 (512) 463-7977
Mark Holden Utah Division of Wildlife Resources 1596 W. North Temple Salt Lake City, UT 84116 (801) 538-4200
Joseph Hassell State Water Control Board 2111 N. Hamilton St. Richmond, VA 23230 (804) 527-5000
Tom Willard Agency of Natural Resources 103 S. Main St. Waterbury, VT 05677 (802)-828-3333
Brad Caldwell Washington Dept. of Water Resources P.O. BoX; 47600 Olympia, WA 98504-7600 (202) 459-6127
Mr. Lewis Milford, Senior Attorney Conservation Law Foundation 21 E. State St., Suite 301 Montpelier, VT 05602-2152 (802) 223-5992 and Mr. Chris Killian Vermont Natural Resources Council 9 Bailey Avenue Montpelier, VT 05602 (802) 223-2328 and Mr. Kevin Kimball Ms; Kathy Fallon Research Dept. Appalachian Mountain Club P.O. Box 248 Gorham, NH 03581 (603) 466-2721 Fighting attempts to withdraw water fo
snowmaking purposes.
Ms. Lorraine Bodi American Rivers Northwest Regional Office 4518 University Way NE Seattle, WA 98105 (206) 545-7133 Trust Water Rights Program
Wisconsin Riparian
West Virginia Riparian
Wyoming Prior Appropriation
Water quantity/Water use issues: Terry Lohr (608) 267-2375 Groundwater impacts to streamflow: Kevin Kessler (608) 267-9350 Bureau of Water Resources 101 S. Webster Madison, WI 53707 FERC relicensing: DuWayne Gebken Division of Natural Resources DG-EA/6 Bureau of Environmental Analysis P.O. Box 7921 Madison, WI 53707 (608) 266-0425
No jurisdiction over withdrawals. Ely McCoy Dept. of Environmental Protection Office of Water Resources 2101 Greenbriar St. Charleston, WV 25311-1088 (304) 558-2107
Jeff Fassett, State Engineer State Engineer's Office 4th Floor East, Herschler Building Cheyenne, WY 82002 (307) 777-6155 and Tom Anneer (707) 777-4559 Game and Fish Department 5400 Bishop Blvd. Cheyenne, WY 82006-0011 (State Engineer's office administers
instream flow; water rights: Game and Fish Dept. conducts studies and recommends flow requirements for maintaining fish habitat.
93
John Zelazny Executive Director Wyoming Council, Trout Un! P.O. Box 4069 Jackson, WY 83001 (307) 733-6991
Part: VII
References
Instream Flow Overviews
Coyle, Kevin, and Brown, Christopher, Conserving Rivers: A Handbookjor State Action, July 1992 draft. Chapter 5 is a good overview of instream flow and diversion issues. Available from American Rivers, 801 Pennsylvania Ave., S.E., Suite 400, Washington, DC 20003, (202) 547-6900.
Wilkins, Suzanne, A Guide to State River Conservation Legislation, December 1992. Good brief overview of instream flows and diversion laws; Appendix B discusses methods for calculating instream flows. Available from American Rivers.
Reiser, Dudley, Wesche, Thomas, and Estes, Christopher, "Status of Instream Flow Legislation and Practices in North America", Fisheries, Vol. 4, No.2, March-April 1989. An overview of instream protection programs in the U.S. and Canada. A large chart, although somewhat outdated, lists state-by-state legislation and the administering agencies.
Western Water Law
Meyer, Christopher, Western Water and Widllife: The New Frontier A Layperson's Guide to the Law, 1990, is a very good and readable introduction to the prior appropriation doctrine. Appendix E is a brief description of instream flow laws in western states. National Audubon Society, 950 3rd. Ave, NY, NY 10022, (212) 832-3200
Meyer, Christopher, and Fox, Maggie, Western Water Law in Transition: Time For Reckoning, 1986, is a slightly shorter version of above. Rocky Mountain Natural Resources Law Clinic, National Wildlife Federation, Campus Box 4401, Fleming Law Building, Boulder CO 80309 (303) 492-6552.
McKinney, M.J., and J.G. Taylor, Western State Instream Flow Programs: A Comparative Assessment, Instream Flow Information Paper No. 18, U.S. Fish and Wildlife Service, October 1988. Discusses different state programs in the
96
Western U.S. Useful appendices, although somewhat dated, describe western laws and brief descriptions of eastern laws. USDI Fish and Wildlife Service, National Ecology Research Center, 4512 McMurry Avenue, Fort Collins, CO 80525-3400. (303) 226-9100.
Shupe, Steven, "Keeping the Waters Flowing: Streamflow Protection Programs, Strategies, and Issues in the West", lnstream Protection in the Western United States: A Practical Symposium, March 31-Apri14, 1988 also provides an introduction to instream flow protection in the West. Natural Resources Law Center, University of Colorado School of Law, Campus Box 401, Boulder, CO 80309-0401, (303) 492-1286.
Eastern Water Law
Truitt, Robin C., "Model Legislation Providing for Instream Uses of Water in Riparian Water Allocation Systems" Rivers: Studies in the Science, Environmental Policy and Law oflnstream Flow, Vol. 2, No.1, Jan. 1991, pgs. 30-43. Discusses riparian-use doctrine, permitting systems, and model legislation. Rivers, 3024 Phoenix Drive, Fort Collins, CO 80525.
Conservation Law Foundation, No Water To Spare: A Challenge for New England's Future, January 1993. Discusses the public trust doctrine, water supplies, hydropower, and snowmaking issues in New England. Conservation Law Foundation, 62 Summer Street, Boston, MA 02110, (617) 350-0990, $12.50.
The Public Trust Doctrine
Dunning, Harrison, IfInstream Flows, The Public Trust, and the Future of the West If, in Instream Flow Protection in the West provides a good introduction to the public trust doctrine.
Majors, James, Opportunities to Protect Instream Flows and Wetland Uses of Water in California, USDI Fish and Wildlife Service Biological Report 89(10), March 1989. Describes Overview of different opportunities to protect instream resources in California, with a good section on the Public Trust Doctrine. National Ecology Research Center.
97
Transferring Water Rights
Colby, Bonne, M.McGinnis, K.Rait, and R.Wahl, Transferring Water Rights in the Western States--A Comparison of Policies and Procedures, Feb. 1989, is a good guide to laws and procedures governing the transfer of water rights in New Mexico, Utah, Nevada, Colorado, Arizona, Montana, Idaho, and Wyoming. Natural Resources Law Center, $12.
Instream Flows and Recreation
Shelby, Bo, T.Brown, and J.Taylor, Streamflow and Recreation, March 1992, USDA Forest Service Technical Report RM-209. A guide to instream flow recreational issues and assessment. US Forest Service, Rocky Mountain Forest & Range Experiment Station, Fort Collins, CO 80526.
Whittaker, Doug, B. Shelby, W.Jackson, and R.Beschta, Instream Flows for Recreation: A Handbook on Concepts and Research Methods, January 1993. Is a guide to instream flow conditions necessary for recreation and designing a study. National Park Service, AK Regional Office, Rivers, Trails, and Conservation Program, 2525 Gambell St., Anchorage, AK 99503.
Hydropower Issues
Echeverria, John D., Barrow, Pope, and Roos-Collins, Richard, Rivers at Risk: The Concerned Citizen /s Guide to Hydropower, Island Press, Washington D.C ., 1989. An excellent guide non-federal hydropower projects. American Rivers; also see Coyle & Brown.
Conservation Law Foundation, No Water To Spare: A Challenge for New England's Future, January 1993. Discusses the public trust doctrine, water supplies, hydropower, and snowmaking issues in New England. Conservation Law Foundation, 62 Summer Street, Boston, MA 02110, (617) 350-0990, $12.50
Instream Flow Assessment Methodology
Arizona Department of Water Resources, A Guide to Filing Applications for Instream Rights In Arizona, December 1991, especially pg. If-31; a guide to
98
the state I s application procedures. Arizona Dept. of Water Resources, Office of Water Management, 15 S. 15th. Ave, Phoenix, AZ 85007. Also see Wilkins, above.
Estes, Christopher, and Orsborn, John, "Review and Analysis of Methods for Quantifying Instream Flow Requirements", Water Resources Bulletin, American Water Resources Association, Vol. 22, No.3, June 1986, pgs 389-398. Avail. from USF&WS National Ecology Research Center.Russell, Gordon, "Use of the Fish and Wildlife Service's New England Flow Method to Determine Instream Flow Needs at Hydroelectric Projects", November 1988. Gordon Russell, USF&WS, 1033 S. Main St., Old Town, ME 04468, (207) 827-5938.
Cavendish, Mary, and Duncan, Margaret, "Use of the Instream Flow Incremental Methodology: A Tool for Negotiation", Environmental Impact Assessment Review, 1986:6, pgs. 347-363. Discusses use of IFIM assessments of instream flow needs as an aid in the negotiation process. Includes case studies. Instream Flow Group, Nationa~ Ecology Research Center.
Hubert, Wayne, Ralye, Catherine, and Anderson, Stanley, "Compliance With Instream Flow Agreements in Colorado, Montana, and Wyoming", Fisheries, Vol. 15, No.2, pgs. 8-10. A survey the degree to which established minimum flows at selected sites were met. Wyoming cooperative Fish and Wildlife Research Unit, Box 3166, Box 3166, University Station, Laramie, WY 82071.
Water Conservation and Efficiency
River Voices, Spring 1993. Contains case studies on water conservation and efficiency measures. Available from River Network, (503) 241-3506.
Sources on State Laws and Programs
ALASKA
Anderson, Robert, "Alaska Legislature Considers Innovative Instream Flow Law", Rivers, Vol. 2. , No.3, July 1991, pgs. 255-261. Avail. from Rivers. A good description of the strengths and weaknesses and legislative history of Alaska I s instream flow laws and two legislative proposals.
Estes, Christopher, Annual Summary ofAlaska Department of Fish and Game Instream Flow Reservation Applications, October 1992. Describes methods and locations of instream applications, with results and a useful discussion section.
99
AK Dept. of Fish and Game, 333 Raspberry Road, Anchorage, AK 995181599, (907) 344-1541.
ARIZONA
Kulakowski, Lois, and Tellman, Barbara, Instream Flow Rights: A Strategy to Protect Arizona's Streams, April 1990. Describes the basics of instream flow and the application process under Arizona law, and describes examples of instream flow permit applications, including those by the Arizona Nature Conservancy and the Bureau of Land Management. Water Resources Center, University of Arizona, 350 N. Campbell, Tucson, AZ, 85721, (602) 621-7607.
Arizona Department of Water Resources, A Guide to Filing Applications for Instream Flow Water Rights in Arizona, December 1991. Describes the appropriation process, requirements, and assessment methods in a step-by-step process. AZ Dept. of Water Resources, Office of Water Management, 15 S. 15th. Ave., Phoenix, AZ, 85007.
CALIFORNIA
Majors, James, Opportunities to Protect Instream Flows and Wetland Uses of Water in California, USDI Fish and Wildlife Service Biological Report 89(10), March 1989. Describes Overview of different opportunities to protect instream resources in California, with a good section on the Public Trust Doctrine. National Ecology Research Center.
State Water ~esources Control Board, A Guide to California Water Right Appropriations and Information Pertaining to Water Rights in California, describe basic regulations and procedures for filing for water rights. State Water Resources Control Board, Division of Water Rights, P.O. Box 2000, Sacramento, CA, 95812-2000, (916) 322-4503.
COLORADO
Trembly, Terrence, Opportunities to Protect Instream Flows in Colorado and Wyoming, USDI Fish & Wildlife Service Biological Report 87(10) , August 1987. Describes means of instream flow protection in Colorado and Wyoming. National Ecology Research Center.
CONNECTICUT
Callahan, Keane, Choate, Sallie, and Wolfe, Charles, Inventory of Federal and State Legislation Affecting River Management in Connecticut, September 1992.
100
An overview of legislation affecting river management.; of most interest to instream flow advocates is the Water Diversion Policy Act, pg. 3, and Standard of Flow in Stocked Streams, pg. 6. Avail. from Carolyn Hughes, Rivers Program Manager, CT Dept. of Environmental Protection, 165 Capitol Ave., Room 161, Hartford, CT 06106, (203) 566-5083.
Normandeau Associates, An Instream Flow Study of the Mainstem and West Branch of the Farmington River, June 1992. Report of study conducted to assess relationship between levels of instream flow on the Farmington and fisheries, recreational, and aesthetic values. Nathan Frohling, Farmington River Watershed Association, 749 Hopmeadow St., Simsbury, CT 06070 (203) 658-4442.
IDAHO
Fereday, Jeffrey, Meyer, Christopher, and Creamer, Michael, Handbook on Idaho Water Law: An Introduction for the Layperson and Guide for the Practitioner, Draft, September 1992. An excellent overview of Western water law and the prior appropriation doctrine as well as laws specific to Idaho. Appendix contains a brief description of instream flow programs in each Western state. Givens, Pursley, Webb, & Huntley, Attorneys at Law, Suite 200, Park Place, 277 N. Sixth St., Boise, ID, 83702, (208) 342-6571.
Idaho Rivers United, "Idaho's Protected Rivers Program". Briefly describes the parameters of the Idaho Protected Rivers Program planning and designation process. Idaho Rivers United, P.O. Box 633, Boise, ID 83701, (208) 3437481.
ILLINOIS
Illinois Division of Water Resources, Instream Flow Protection: A Planning Standard for Illinois Streams, October 1983. Report is aimed at developing a uniform policy and standard for instream flow protection. Mostly dedicated to different methods of establishing minimum flow values. Gary Clark, Illinois Dept. of Transportation, Division of W~ter Resources, 3215 Executive Park Drive, P.O. Box 19484, Springfield, IL 62794-9484 (217) 782-3488.
Illinois Instream Flow Committee, Report of the Illinois Instream Flow Protection Committee, April 1991. Report of Committee's study of instream issues in the state, including state's instream needs, water use patterns, offstream demands, and includes an overview of laws in several other midwestern states. Avail. as above.
101
IOWA
Aiken, David, Opportunities to Protect Instream Flows in Minnesota and Iowa, USDI F&WS, March 1983. Follows standard format of "Opportunity" publications; National Ecology Research Center.
KENTUCKY
Coughlan, Beth, and Singleton, J. Allen, Opportunities to Protect Instream Flows and Wetland Uses of Water in Kentucky: USDI-FWS Biological Report 89 (9), March 1989. Follows standard format of "Opportunity" publications; avail. from National Ecology Research Center.
MAINE
Ert!, Deana, Opportunities to Protect Instream Flows In Maine, Biological Report 85 (10), June 1985, National Ecology Research Center.
Regulation of Hydropower in Maine, July 1990, and Department of Environmental Protection Information Sheets on "Regulation of Dams In Maine" and "Hydropower Relicensing" provide good basic information about hydropower, and many hydropower projects will be up for reIicensing in the coming years. Avail. from State of Maine, Department of Environmental Protection, State House Station 17, Augusta, ME 04333.
MICHIGAN
White, Mary Ray, Opportunities to Protect Instream Flows in Michigan and Wisconsin, USDI F&WS, September 1983. National Ecology Research Center.
MINNESOTA
Aiken, David, Opportunities to Protect Instream Flows in Minnesota and Iowa, USDI F&WS, March 1983. Follows standard format of "Opportunity" publications; National Ecology Research Center.
Olson, Patricia, Dominigue, Richard, and Kruse, Gregory, An Instream Flow Program for Minnesota: Main Report to the Legislative Commission on Minnesota Resources, October 1989, along with "Fact Sheet on Instream Flow and Lake Level Protection: Applicable Legislation and Regulations" and
102
"Questions and Answers About Water Laws in Minnesota". Provides a good overall description and evaluation of Minnesota's minimum-flow programs and the difficulties caused by recent droughts, with recommendations for the program. Greg Kruse, Instream Flow Specialist, Minnesota Dept. of Natural Resources, Division of Waters, 500 Lafayette Road, St. Paul, MN, 551554032, (612) 297-2402.
MONTANA
Northern Lights Research and Education Institute, "Discussion Draft: Upper Clark Fork River Basin Steering Committee Work Plan", November 2, 1992, and "The Clark Fork Project," give a good background to the history and issues of the project. Gerald Mueller, Northern Lights Research and Education Institute, 210 N. Higgins, Suite 326, P.O. Box 8084, Missoula, MT 598078084, (406) 721-7415.
NEBRASKA
Platte River Trust, "McConaughy Relicensing: New Hope for the Platte River", describes the proposal submitted to the FERC re the McConaughy relicensing process. Avail. from the Platte River Trust, 2550 N. Diers Ave., Suite H, Grand Island, NE 68803, (308) 384-4633.
"Groups Find Ways to Change How Dams Are Run, High Country News, December 2, 1991, pg. 11. Describes activities of Platte River Trust and hydropower relicensing issues. High Country News, Box 1090, Paonia, CO 81428.
NEW HAMPSHIRE
Report of the Public Water Rights Study Committee, December 1992. A discussion of the committee's recommendations for the state. Includes discussions of the public trust, , riparian rights, pressures on water resources, administrative and public trust suggestions. Appendices include state-by-state descriptions of all currently enacted permitting legislation. Committee's recommendations can serve as model legislation for riparian states.
NEW MEXICO
New Mexico Wildlife Federation, and New Mexico Trout, Instream Flows: An Informational Paper.. A basic public-education guide to instream flows and how they could operate in the prior appropriation system. Aimed at dispelling fearsrelated to instream flows in New Mexico. New Mexico Wildlife
-----_.-._------ -----------_._---- --------_._--._.
103
Federation, 3240-D Juan Tabo NE, Suite 10, Albuquerque, NM, 87111 (505) 299-5404.
NEVADA
"Pyramid Lake/Stillwater Marsh: A Last Great Place", Basin, Range, & Rimrock, Fall 1992, pg. 4. Describes The Nevada Nature Conservancy's efforts toward protecting the Truckee-Carson basin. Avail. from the Nevada Nature Conservancy, Great Basin Office, Pioneer Station, P.O. Box 11486, Salt Lake City, DT 84147-0486, (801) 531-0999.
OREGON
Kreag, Becky, "Transferring Conserved Water: The Oregon Experience", from Moving the West's Water to New Uses: Winners and Losers, June 1990. Describes the Oregon Conservation Statute, and the need for greater incentives for conservation. Natural Resources Law Center.
SOUTH CAROLINA
deKozlowski, Steven, Instream Flow Study Phase I: Identification and Priority Listing of Streams in South Carolina for which Minimum Flow Levels Need to be Established, Report # 149, June 1985. Describes stream segment study plans, current and projected water use, and determination of protection need value method determination. Also deKozlowski, Instream Flow Study Phase II: Determination of Minimum Flow Standards to Protect Instream Values in Priority Stream Segments, Report #163, May 1988. Discusses study methodologies for determining minimum flows required and reviews existing methods. South Carolina Water Resources Commission, 1201 Main Street, Suite 1100, Columbia, SC 29201 (803) 737-0800.
TENNESSEE
"A Guide to Permits Required for Work Within Streams in the State of Tennessee". Briefly describes water quality permits and associated federal permits and where to obtain permitting information. TN Dept. of Environment and Conservation, Division of Water Pollution Control, 401 Church St., 6th. Floor L&C Annex NRS, Nashville, TN, 37243-1534.
TEXAS
Kasier, Ronald, Handbook of Texas Water Law; Problems and Needs. A good overview of Texas water law and water issues, covering both surface and
104
groundwater. Texas Water Resources Institute, Texas Agricultural Experiment Station, Texas A&M University, College Station, TX 77843.
Bradsby, David, "Instream Flows", a short paper describing Texas instream flow programs. Bradsby, David, Texas Water Commission, Environmental Systems Section, P.O. Box 13087, 1700 N. Congress Ave, Austin, TX 787113087 (512) 463-7830.
VERMONT
Kilian, Christopher, and Clark, Susan, 'iHow Much Water? Sugarbush Brings 'Minimum Flow' Debate to the Surface", Vermont Environmental Report, Spring 1992, pgs. 22-24. Discusses snowmaking's effect on streamflows, with particular attention to the shortcomings of the IFIM method. Vermont Natural Resources Council, 9 Bailey Ave., Montpelier, VT 05602 (802) 223-2328.
WASHINGTON
Barwin, Robert, Slattery, Kenneth, and Shupe, Steven, "Protecting Instream Resources in Washington State", from Instream Flow Protection in the Western United States: A Practical Symposium, March-April 1988. Describes Washington's instream flow programs and focuses on the enforcement practices and difficulties experienced by the Dept. of Ecology. Natural Resources Law Center.
Washington Dept. of Ecology, Water Resources Program, Instream Resources and Water Allocation Program Review: Draft Environmental Impact Statement, February 1987. A self-EIS conducted by the Dept. of Ecology on its water planning and allocation program to pinpoint instream flow protection alternatives. Cindy James, WA Dept. of Ecology, Mail Stop PV-11, Olympia, WA, 98504-8711, (206) 459-6111.
Washington Dept. of Ecology, Guidelines: Trust Water Rights Program, September, 1992. Describes guidelines for Trust Water Rights Program. Cynthia Nelson, Washington Department of Ecology, P.O. Box 47600, Baran Hall, Olympia, WA, 98504-7600, (206).459-6116.
WISCONSIN
White, Mary Ray, Opportunities to Protect Instream Flows in Michigan and Wisconsin, USDI F&WS, September 1983. National Ecology Research Center.
105
WYOMING
Trembly, Terrence, Opportunities to Protect Instream Flows in Colorado and Wyoming, USDI Fish & Wildlife Service Biological Report 87(10) , August 1987. Describes means of instream flow protection in Colorado and Wyoming. National Ecology Research Center.
-----------------------------------~-------- ---------------
~rotecting Instream Flows: ,
fA Resource File for River Activists
. ~, . . . ..,
