The first half century of western water reform: have we kept faith with the rivers of the west?

• Author: Wilkinson, Charles
• Position: Western Instream Flows: Fifty Years of Progress and Setbacks

1. INTRODUCTION II. WESTERN INSTREAM FLOWS: POLICY, PERCEPTION, AND REALITY A. The Water Project Reality B. The Progress of Water Reforms III. WORKING WITHIN THE FRAMEWORK OF INSTREAM RIGHTS LAW IV. FLEXIBILITY AND OPPORTUNITY FOR RESTORATION EFFORTS V. REASON TO HOPE: THE FUTURE OF THE RIVER RESTORATION MOVEMENT I. INTRODUCTION

   When I taught law at the University of Oregon, Ann and I rived for a while south of Eugene near Dexter in a little house on Lost Creek. The stream didn't carry much water, but I fly fished it every now and then. I got to know a farmer who rived across the creek and one day we got to talking about water. I asked him if he knew about the instream flow that the state had set upstream and he said he did. "What do you think about it?" I inquired.

   "I don't like it," he said firmly. "I don't like it at all. It can't do me any harm and maybe it would help me some by keeping some diversions out. Even if they're junior they could cause some trouble by taking water when they shouldn't. And maybe it would help the fishing. But I don't care about any of that. I just don't believe in those things."

   There are many reasons why western instream flow statutes have mostly failed to fulfill their promise, why today we commemorate as much as we celebrate the fiftieth anniversary of the 1955 Oregon law. Some of those reasons are attitudinal, as witnessed by my discussion on Lost Creek, and I'll return to that, but first let me address obstacles to free-flowing rivers that are purely structural, the inadvertent genius of the early miners and farmers who cemented prior appropriation into the legal system of every western state.

2. WESTERN INSTREAM FLOWS: POLICY, PERCEPTION, AND REALITY

   Water is free. You pay nothing to anyone to obtain a water right. To be sure, it may take hard work to put in a diversion ditch or canal, or sometimes a transmountain tunnel. You may pay the Bureau of Reclamation or an irrigation district to operate and maintain the delivery system. But for water, to which we regularly attach the homily that it is the West's most valuable resource, you pay no fee, tax, charge, or royalty, not even a token payment like the $5 per acre fee for taking a lode claim to patent under the hardrock mining law.

   Though free, a valid water diversion becomes a vested property right, fully protected by the Fifth Amendment, the moment the water is diverted. If a state wants to buy up a water right and convert it to an instream right, it must pay full market value.

   Beneficial use supposedly prohibits waste, but western states seldom imposed any efficiency requirements at all until about a generation ago. Even today, water conservation, whether by regulation or incentive, is still in its infancy in almost every corner of the West.

   Finally, while we are seeing some change, the western state water agencies, regardless of what their mission statements may say, have traditionally seen their job monolithically: to protect senior rights. Seniors not only have free, vested, superior, and unregulated rights, they also have had their own captive agencies to enforce them and, importantly, advocate for them.

   So how is a right to a free flow of water, with a priority date of 1955 or likely much later, supposed to make a difference on western rivers that are locked up by a block of senior vested rights? I received a telling answer one afternoon when I was out on the St. Vrain River in Colorado with the state watermaster for the St. Vrain, the man who, more than anyone, knows water rights allocation on the river. Ever curious about instream flows, I asked him how they are administered. His response surprised me: "Are there any?" I stammered that, well, I was pretty sure there would be some since the St. Vrain has its headwaters in glory country, in Rocky Mountain National Park and Roosevelt National Forest. He asked what the priority date would be. I said that they could be no earlier than 1973, the year of Colorado's (the West's second) instream flow law. (1) He chuckled and gave me the missing information that explained why he had no reason to know about instream flows on the St. Vrain: "Look, I don't think I've ever administered a right junior to 1892."

   But there's trouble for instream flows that goes beyond the formal structure of western water law, beyond finding water for junior rights when there is no water for juniors, beyond even finding instream flows for a senior right when you can get one by purchase or donation. It goes back to the suspicion held by my farmer friend on Lost Creek, a good man, who like most people in the water business, just flat can't abide dedicating a drop of river water to the river.

   A near-paranoia pervades nearly every aspect of instream flow policy. Consumptive rights requests have always been rubber-stamped. Proposed instream rights almost always face outright opposition and, even ff a right is granted, the quantity is fly-specked. Once instream rights have been set, state agencies sometimes waive them in times of low water. Their legitimacy is called into question at every turn. A few cubic feet per second for trout or kayaks becomes a brouhaha whether the instream right is a junior or even a senior resulting from a straight market transaction in a context where the market is supposed to be honored. Instream rights are different. Instream rights are dicey, dangerous, and potentially disastrous. There is reason, if you catch my drift, to question the loyalty of those people who support them.

   The debates are conducted in the grey, vague, and unfeeling language of water. The misnomer "beneficial use" hides the fact that the great blocks of extractive water rights that define our rivers, originated in a system that denied legal protection to all manner of uses that a person would expect...