The use of state instream flow laws for federal lands: respecting state control while meeting federal purposes.

• Author: Amos, Adell Louise
• Position: Western Instream Flows: Fifty Years of Progress and Setbacks

1. INTRODUCTION II. THE FUNDAMENTAL TENSION--STATE CONTROL OF WATER RESOURCES AND THE FEDERAL RESERVED WATER RIGHTS DOCTRINE III. WATER RIGHTS POLICIES: DEFINING THE FEDERAL RELATIONSHIP WITH STATE WATER LAWS IV. LIMITATIONS AND RISKS UNDER STATE LAW FOR FEDERAL AGENCIES A. Definitional Limitations 1. Non-Consumptive Use and State Definitions of Beneficial Use 2. The Diversion Requirement 3. Standards for Establishing Instream Flow 4. Non-Consumptive Use and Groundwater B. Structural Limitations 1. States Where Federal Agency Cannot Hold Instream Flow Rights a. Oregon b. Washington c. Colorado d. Idaho 2. States Where Federal Agency Can Hold Instream Flow Right a. Nevada b. Alaska 3. Priority Dates for State Instream Flow Rights Versus Federal Reserved Rights 4. Ownership Enforcement of an Instream Flow Right C. Admistrative Limitations D. Political Vulnerabilities V. RECOMMENDATIONS I. INTRODUCTION

   Imagine your favorite national park, wildlife refuge, wilderness area, national forest, or recreational area. Now consider how your favorite spot would look without water. Every ecosystem relies on water; ecological integrity cannot be maintained without it. Often land conservation efforts focus on the physical metes and bounds of a particular parcel of land without adequately considering the mechanisms for protecting the water resources associated with the overall conservation goal. Water shortages, familiar in the western United States and quickly moving east, demand that water resources be considered in conservation planning initiatives. (1)

   From the scientific perspective, the role water plays in preserving the integrity of an ecosystem is essential. Any particular parcel of land or larger ecosystem can include streams, rivers, lakes, ponds, wetlands, pools, springs, and groundwater resources. The addition or removal of water has profound consequences for an ecosystem's integrity. The hydrologic relationships that maintain ecological integrity are complex and often unrecognized by legal systems. As a result, legal frameworks often come up short or unfocused from the scientific perspective. (2) Scientists have made significant advancements in their understanding and quantification of water in the natural system. (3) The law can benefit from these advancements, but the science is rarely compelling on its own, especially when legal tools are limited and restrictive. As scientists in the field recognize, "[i]nadequate laws and policies can prevent the best science and informed public support from playing their legitimate role." (4)

   Despite the limitations inherent in the legal landscape, the last decades have seen progress and provided countless opportunities for science to play an integral role in moving legal and policy debates forward. (5) Because each state enacts its own water code, state legislatures and administrative agencies have led the way in developing initiatives to protect water resources. (6) Most significantly, the western states amended or reinterpreted state law to protect non-consumptive, instream water use--as opposed to the more traditional consumptive, diversionary water rights. (7) "Non-consumptive" or "instream flow" refers to water use that does not involve removing water from the natural system through a diversion. For example, a water right for a certain quantity of water to be left in place to maintain a river's flow or a lake's water level is considered a non-consumptive use. Questions remain whether the federal government can use state instream flow law to protect federal interests.

   The significance of federal use of state instream flow law directly relates to the amount of federal land in the West. The federal government owns and manages many of our most prized public lands and associated water resources. (8) The United States has distinguished itself by the choices its citizens have made to preserve land as national parks, national wildlife areas, national forests, and conservation areas. Both collectively and individually, we as a people, acting through our elected representatives, have chosen to set aside certain areas because of their ecological, historical, scientific, or scenic value. Our system of public lands each dedicated to particular public purposes distinctly characterizes our ethics and our national choice to preserve these treasures intact for future generations.

   At the time each parcel of land was set aside, Congress and the Executive articulated the purposes for the land designation. (9) These federal purposes were codified in specific statutory mandates-and set forth in executive orders. Various federal agencies, including the National Park Service (NPS), the United States Fish and Wildlife Service (FWS), the United States Forest Service (FS) and the Bureau of Land Management (BLM), among others, are responsible for carrying out these federal purposes. Each of these federal land-managing agencies operates pursuant to specific statutory mandates that outline a directive for the respective federal lands. (10) Frequently, these directives necessitate the protection of water resources and agencies are required, as a matter of federal law, to fulfill their statutory obligations. (11) Federal land managers, therefore, face the challenge of using federal law to protect water resources or matching state water law provisions with various federal mandates. The question for federal land managers, therefore, is not whether to protect water resources but which legal mechanisms will allow them to carry out their mandate. This question includes whether state instream flow laws can be used for federal lands.

   This Article examines the relationship between the four major federal land-managing agencies and state water law focusing specifically on the protection of non-consumptive water use in the western states. (12) Part I examines the fundamental tension between state control of water resources and federal reserved water rights under the federal reserved water rights doctrine. Part II summarizes the statutes, regulations and policies associated with the four major federal land-managing agencies: NPS, FWS, FS, and BLM. The Article focuses particular attention on the water rights policies of each agency by comparing the language describing each agency's use of state law to protect federal resources. Part III evaluates and categorizes limitations under state instream flow laws for federal land managers. Specifically, the Article organizes the challenges under state law into four categories--definitional, structural, administrative, and political.

   Finally, Part IV of the Article makes recommendations for improving the opportunities for federal agencies to utilize state instream flow law. First, federal agencies need to articulate a process for determining whether seeking a water right under state law is appropriate and make a commitment to seek solutions under state law. Second, in response to a federal commitment to seek solutions using state law, states need to remove barriers for protecting federal interests. Third, as the process described above unfolds, the federal government must continue to carry out congressionally-mandated goals and preserve water rights on federal land, even if it means using federal law to do so. The federal government should not compromise its ability to protect federal lands by abandoning federal law options before securing equivalent protections under state law. Fourth, federal and state officials need to continue seeking unique and creative solutions to the tension between state and federal law on water rights, while recognizing that the devil lies in the details of these innovative approaches. Fifth, to promote accepted and lasting solutions, state and the federal governments should enhance public involvement in the policy discussions and ultimate resolution of water rights conflicts.

2. THE FUNDAMENTAL TENSION--STATE CONTROL OF WATER RESOURCES AND THE FEDERAL RESERVED WATER RIGHTS DOCTRINE

   In the United States, each individual state has the authority to determine how water will be allocated within its borders. (13) Thus, each individual state has the authority to determine the allocation of specific rights to use water among its citizens. State law governs the allocation and administration of water rights unless state law interferes with congressional directives. (14) Two general categories of state law systems exist: prior appropriation and riparian. (15) In the western United States, where human demands for water exceed the natural supply, the doctrine of prior appropriation governs the allocation of water rights. (16) In these prior appropriation jurisdictions, water rights are determined based on the water user who is the first to put the water to "beneficial use." State law defines which uses will be beneficial. Disputes in prior appropriation states often center on priority dates, the use of water "beneficially" as defined by state law, and the availability of water for appropriation by new users.

   The federal land-managing agencies operate in the context of these state law systems while carrying out their federal mandates. It is important to distinguish between the proprietary and regulatory roles a federal agency can play. Often tension between the federal and state government arises when the federal agencies are exercising their regulatory authority. This Article examines federal actors, not in their regulatory role, but as property owners within the states' boundaries. The federal government seeks to protect its proprietary interests when asserting water rights to fulfill federal purposes. Not surprisingly, state and federal sovereigns often disagree about allocation of water resources. (17) This Article explores the tension that arises when the federal government seeks to protect non-consumptive water use on federal lands. Federal land managers face a fundamental dilemma of whether to secure water rights under state or federal...