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EXISTING
STATE LAW
Editor’s note: Because
of the unique political, legal, and environmental attributes of
each western state some methods of protecting instream flows may
be more suitable for certain states than others. The following
is intended as a brief primer of current administrative methods
with links to sample legal language from other states. We would
like to thank David Getches of the University of Colorado School
of Law for his helpful comments.
INSTREAM FLOW WATER RIGHTS
Definition: “A water
right issued for instream use is a right to maintain a specified
level of flow at specified times through a specified reach of
river.”(1)
Example: Oregon
Revised Statutes 537.332 to 537.360
Recognized Water Rights: AZ, CO,
ID, NV, OR, WY
Limited Applications: CA, MT, NE,
SD, UT, WA
None: AK, KS, OK, NM, ND, TX
Advantages:
- Instream water rights raise instream
uses to the same legal basis as offstream uses. This is
attractive in many states because it fits neatly into the current
system.
- Water rights, as property rights,
provide strong legal protection and could be more permanent
than alternative instream flow protection methods.
- These state water rights have
also been recognized in the past by the federal government,
whereas other methods of instream protection have not.
Drawbacks:
- This system is least useful on
fully appropriated streams. Even then, however, these rights
can have a beneficial impact on changes in water use.
- Water rights are usually too
junior to other water rights to do much good, as they do nothing
to return water to dewatered reaches of a stream.
Water Right Transfers
Definition: The use of
recognized instream water rights to facilitate the transfer of
water from offstream uses to instream uses. Details may vary,
but some states allow rights to be sold, leased, traded, or donated
as long as the changes are harmless to existing water holders
and they are approved by the appropriate supervising agency.(1)
This concept is basic to water trust
rights, but water rights transfers are also used in systems like
Colorado where senior rights can be transferred to state agencies.
It is possible, that water trusts could someday gain the ability
to acquire water rights and transfer them to the state agency.
Example: Oregon
Revised Statutes 537.348
Advantages:
A way to voluntarily provide for
the transfer of rights while protecting vested interests.
Drawbacks:
Cannot occur in states which do
not recognize instream water uses or states that do not yet allow
transfers or that restrict the types of transfers which are allowable.
Trust Water Rights
Definition: Water trusts
acquire temporary or permanent water rights from voluntary lessors
or sellers and/or use market-based incentives to encourage these
private and public owners to dedicate their water rights to restoring
habitat, improving water quality, and public recreation.
Example: SERC’s
Minimum Stream Flow Protection Bill
Advantages:
- Uses a voluntary, market-based
approach that mimics the highly effective efforts of land trusts
to protect instream flows.
- The flexibility and voluntary
nature of the program can allow for rapid improvement in stream
flows.
- Facilitates acquisition of senior
rights which are currently absent from most programs.
Drawbacks:
- The effectiveness is only strong
if the state, private rights holders, or the trusts have the
legal power to enforce real protections to ensure that donated
water remains in protected reaches, and is not appropriated
by junior rights holders.
- Cannot occur in states which
do not recognize instream water uses.
- Some states restrict those who
can participate in a trust program.
- Can require significant funding
to achieve minimum levels of environmental protection.
SPECIFIED FLOW LEVELS
Minimum Stream Flows
(Base Flows)
Definition: “Flow
levels below which new appropriations will not be allowed.”(1)
Example: Washington
Administrative Code, Chapter 173-500
Instream Reservations
Definition: “Reserve
water for use instream, thereby preventing the water from being
appropriated for other uses.”(1)
Example: Montana
Code Annotated (2001), 85-2-316. State reservation of waters.
Advantages:
In some states, such as Montana,
where streams are not fully appropriated, the reservations can
be established before new development.
Drawbacks:
- While both minimum stream flows
and instream reservations have been integrated into existing
systems of appropriative rights by use of priority dates, these
rights are junior to existing appropriations and can only be
effective by way of future appropriations or additional changes
to senior appropriations.
- Do not provide a way to add water
back into streams
- Usually rights are too junior
to have much effect
- If they are not also backed by
“instream water rights,” then base flows and instream
reservations may not have the legal standing needed to provide
adequate protection. In other words, additional legal protections
of instream water uses may be necessary in a state to protect
specified flow levels from pressure from more junior rights
holders if instream uses are not legally recognized.
- Due to periodic review, protections
could potentially be changed or revoked by a later administration
with different priorities.
ADMINISTRATIVE PROTECTIONS
Definition: The application
of public interest criteria by state water control agencies to
appropriations and transfers that include protection of fish and
wildlife.
“All [western states] except
Colorado and Oklahoma require that new appropriations be in the
public interest, and many of the states apply public interest
criteria to water rights transfer and change applications.”(1)
Example: California
Water Code (1257)
Drawbacks:
- Administrative review can only
modify existing conditions if the agencies are specifically
empowered to review past decisions.
- Most instances of administrative
review are applied inconsistently and sporadically.
- Inefficiencies, changes in administration,
and funding limitations can further erode protections.
STATE RIVER PROGRAMS
Definition: The legal designation
of certain rivers as having special characteristics worthy of
preservation. States have used a variety of protections to maintain
the rivers for specific recreational and ecological purposes.
State river protections can protect flows by declaring the primary
purposes of designated waters as recreation, fish and wildlife
uses. In order to achieve these goals, the natural characteristics
and water quantities are protected by restricting subsequent withdrawals
and other disturbances such as dams and other facilities.
Examples:
Advantages:
Can provide substantial and permanent
protections for key streams.
Drawbacks:
If the program is too weak or ineffective,
the efforts in passing the legislation will not have improved
anything. The program is only as good as the legislation
behind it.
CONSERVATION PROGRAMS
Definition: In some states,
programs exist to apply water saved through conservation towards
instream use.
Example: Oregon
Revised Statutes 537.455 to 537.500
Advantages:
Increased efficiencies and other
improvements benefit the stream by reducing wasted water and can
benefit rights holders by reducing operating expenses.
Drawbacks:
- There is an absence of strong
monitoring and metering of water use and/or stream gauging.
- Some states require that salvage
water go directly back to the stream for use by the next water
right holder.
ALL OR SOME OF THE ABOVE
When deciding which programs or policies you would like to introduce
in your state, you should bear in mind that very few of them are
mutually exclusive. There is great potential, and some times a
necessity, to utilize a number of these strategies simultaneously
or incrementally.
Some states such as California and Texas have minimal groundwater
management at the state level, and groundwater programs in other
states may vary significantly. Care must be taken, therefore,
to ensure that any proposed legislation (including our sample
bill) be consistent with existing state groundwater management
laws.
The sample bill below is primarily based on current Washington
law with some adaptations from other western states, as well as
some suggestions from the group American Rivers. This legislation
strives to achieve three essential goals that a quality piece
of instream flow legislation should possess:
- Requiring a state to draw a line of what the minimum flow
of river or stream should be – and strongly enforce it.
- Preventing people or businesses from usurping water use laws
by taking water out rivers via underground wells.
- Giving individuals and environmental organizations the same
ability as ranchers and businesses to purchase water rights.
Example:
SERC’s
Minimum Stream Flow Protection Bill
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