CHAPTER 6 "NEW" PUBLIC WESTERN WATER RIGHTS: APPROPRIATION FOR INSTREAM FLOW MAINTENANCE

• Jurisdiction: United States

Water Acquisition for Mineral Development
(Mar 1978)
CHAPTER 6
"NEW" PUBLIC WESTERN WATER RIGHTS: APPROPRIATION FOR INSTREAM FLOW MAINTENANCE
A. Dan Tarlock
Professor of Law, Indiana University School of Law, Bloomington, Indiana, and of Counsel
Kutak Rock & Huie, Omaha, Nebraska

I. INTRODUCTION

In the Far West a water right is based on the use of water to satisfy basic human needs or to produce goods and services valued in the market.¹ Prior appropriation has always been a relatively utilitarian doctrine for the mission of regional settlement and development mandated an attempt to promote maximum utilization of water resources. This goal has been accomplished by according security to priority, limiting speculative claims, promoting widespread access to the resource, and prohibiting arguable wasteful uses, although maximum utilization of water has sometimes given way to distributional goals. For example, to achieve a fair distribution of right inefficient means of use have been protected.²

To promote the maximum use of water, the law of prior appropriation has consistently purged western water law of riparian elements. It was the tension between utilitarian and non-utilitarian principles in the common law which led the courts to reject riparian rights as suited to the West. Specifically, the recognition of rights to the flow of the stream apart from a consumptive use³ and the confinement of rights to the ownership of land along a stream were thought to be detrimental to the development of this region. In the famous case of Schodde v. Twin Falls Water Co.,⁴ the Supreme Court rejected the claim that an appropriation included a right to the flow separate from the amount applied to a beneficial use. Plaintiff's assertion that he had a right to the flow of the Snake River to lift a proportionately small quantity of water for a consumptive use was rejected because it was wasteful compared to other potential claims. Schodde thus is the source of the dogma that the reservation of large quantities of water in place is not a use for which an appropriation can be made.⁵

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In recent years, environmentalists have advanced ecological and philosophical arguments in favor of recognizing instream uses, and Western states have recently enacted a variety of statuatory procedures to establish and protect instream flow rights. An energy developer contemplating an appropriation package must now consider these "new" public water rights as a possible constraint on the use of water for mineral exploitation.⁶ For example, flow appropriations may place a floor on the amount of water which may be available for application to conventional beneficial uses; a state and energy developers may be in competition for unappropriated flows as is now occuring on the Yellowstone River in Montana; instream flow maintainance conditions may control the operation of federal, state, and private water projects; and the federal government is claiming the right to establish minimum flows on public lands under the reserved rights doctrine.

This paper surveys Western state and federal laws and procedures which recognize and protect instream flow rights. Its thesis is that instream uses are entitled to equal footing with the traditional consumptive beneficial uses, but that these new uses should be recognized and protected only as public rights.⁷ Further, whenever possible flow preservation⁸ recognition and protection should occur within state-created appropriation systems pursuant to strict legislative standards. The public is entitled to the reservation of flows for instream uses, but energy developers are equally entitled to notice of state and federal claims and to have them established by standards which subject instream use claimants to the same anti-waste and anti-speculative policies to which other appropriators are subject. Energy developers and environmental interests must share the Western waters available for new uses as widespread access to waters by diverse user groups should remain the cardinal policy of Western water law.

The organization of the paper is as follows: (1) the philosophical and environmental case for instream flow preservation, (2) the scientific and judgmental standards used to set instream flows, (3) a general survey of the direct and indirect means of preserving instream flows, (4) an analysis of recent cases which eliminate per se barriers to instream flow appropriations, and (5) a discussion of the specific flow preservation procedures now in use in the Far West with relevant case studies.

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II. THE PHILOSOPHY OF INSTREAM PRESERVATION

In 1973, the Final Report of the National Water Commission recommended "that State laws should be improved to provide greater protection of social values in water." Specifically, the Commission urged that legal rights should be created for the benefit of the public for such social uses as "aesthetics, recreation, fish and wildlife propagation..."⁹ The Report is likely to influence considerably the future of state and federal laws and rests on diverse reasons. On a general level, the recommendation reflects a societal attitude that human actvities should be conducted more in harmony with natural systems than has been the case in the past. On a more concrete level it recognizes the need to preserve fish and wildlife habitats to enhance food supplies and to provide diverse recreational opportunities. The recommendation also accords weight to the economic and engineering arguments which have been advanced against large-scale water resources projects. Each of these reasons, of course, is debatable but for my purposes, it is sufficient to observe that each is a sufficient justification for the state's decision to recognize these uses.¹⁰ The important question is whether instream public rights are discretionary with the states or whether in some cases recogniton is mandatory? This section argues that instream values are discretionary with the state and thus are not fundamental constitutional or natural rights.

Most contemporary environmental theories are utilitarian. They assert that resource allocations for environmental reasons such as instream uses are valuable to man. In the past decade, society has incorporated these arguments into resource allocations processes in two stages. First, it was established that environmental values were entitled to equal weight with non-environmental values. Second, as society gained a greater appreciation of the benefits of diversity in natural ecosystems, activities which threatened to degrade the environment had to assume a high burden of justification in contrast to the historic placement of the burden on those opposing an activity.¹¹ But utilitarian-based theories of environmental protection do not deny the value of alternative resource uses. The opportunity cost of a withdrawal is always a relevant factor to be considered. These theories assert only that non-economic costs, as they have traditionally been defined, should be fully taken into account in all decision-making. This can be done on a case by case basis or a per se level such as wild and scenic river program. Consistent with this analysis the new environmental laws are ultimately procedural for they require only a good faith weighting of environmental

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and non-environmental values by an agency or a legislature; no a priori weight is assigned to one set of values over the other until the legislature chooses to rank the competing values. The National Environmental Policy Act of 1969 is a prime example of this theory.

There are, however, non-utilitarian theories of environmental protection which assert that environmental values are paramount to non-environmental ones. These theories rest on assertions of natural or constitutional rights which require the incorporation of radical new philosophical premises into the law. For example, one non-utilitarian theory proceeds on the assumption that inanimate objects have rights. In an article entitled, Should Rivers Have Running?, Idaho Environmental Attorney, Scott Reed, asserts, "It is just as logical to recognize the right of animate and inanimate objects to an adquate instream flow of water to a national forest as on an Indian reservation."¹² This argument is bad economics and bad philosophy. As John Passmore had demonstrated, "if it is essential to a community that members of it have common interests and recognize mutual obligations then plants, animals and soil do not form a community...The idea of 'rights' is simply not applicable to what is non-human."¹³ Other non-utilitarian theories attempt to surmount the objections to animisim by arguing that the Constitution protects natural objects in order to reenforce paramount societal values. One philosopher has argued:

Our proposal is this: We have an obligation to protect natural environments insofar as we respect the qualities they express. We have seen that these qualities do actually belong to some environments, which are their paradigms; and the discovery or identification of these qualities is effected in our language and by our arts. Preserving an environment may be compared to maintaining an institution, for symbols are to values as institutions are to our legal and political life. The obligations to preserve nature, then, is an obligation to our cultural tradition, to the values which we have cherished and in terms of which nature and this nation are still to be described. It is difficult and indeed unnecessary to argue that fulfilling this obligation to our national values, to our history, and therefore, to ourselves considers any kind of benefit; perhaps fulfilling a responsibility is itself benefit, but this view requires not that we define "responsibility" in terms of "benefits," as the utilitarian does, but that we define "benefits" in terms of "responsibilities." In any case, preservation of the qualities, and accordingly the values...