Perspectives from the field: a review of western instream flow issues and recommendations for a new water future.

• Author: Bonham, Charlton H.
• Position: Western Instream Flows: Fifty Years of Progress and Setbacks

Water is the West's most precious resource. Water management, water law, and water policy in the West are at a crossroads. A hard look at instream flow issues and a serious commitment to finding lasting water solutions are critical to the region's future. This Article broadly summarizes several instream flow issues on a state specific and regional scale, and makes discrete recommendations for developing a new, more solutions-oriented approach to water problems in the West. The author offers four recommendations for charting a new course in water management, water law, and water policy in the West; building better relationships, viewing instream flow and regulatory certainty as mutually beneficial, promoting physical solutions, and taking bold action. The author concludes that a new water future for the West can be charted But, it is entirely up to regional stakeholders to get busy now fostering public dialogue and decision making on the water issues in the West to find lasting solutions that manage water for the greatest good.

1. INTRODUCTION II. THE WATER AND FISH BASELINE A. Basic Water Overview B. Basic Fish Overview III. REGIONAL AND STATE REVIEWS A. The Intermountain West States of Colorado, Idaho, Utah, and Wyoming 1. Developments a. Grappling with Difficult Issues b. Recreation Is a New Driver 2. Challenges a. Making the Most of Incremental Successes b. Growth in the Face of Aridity B. Montana 1. Developments a. Water for Fish Becomes a Reality b. Forward Looking Legal Results 2. Challenges: Building Alliances to Find and Implement Integrated Solutions C. California 1. Developments a. The Public Trust Doctrine b. State Water Resources Control Board c. Water Transfers and Markets 2. Challenges a. Groundwater b. Where Is the Market? c. Living up to Potential: Permitting Systems that Work for All Stakeholders IV. RECOMMENDATIONS FOR A NEW WATER FUTURE A. Relationships Matter When It Comes To Water B. Instream Flow and Regulatory Certainty Can Go Hand in Hand C. We Need More Physical Solutions D. Doing Nothing Is Unacceptable V. CONCLUSION I. INTRODUCTION

   Water is the West's most precious resource. Water management, water law, and water policy in the West are at a crossroads. In 1889, during the Montana Constitutional Convention, John Wesley Powell proposed that the state of Montana adopt watersheds as county boundaries. (1) Powell believed that governance should be based on "watershed commonwealths." (2) His advice, offered over one hundred years ago, fell largely on deaf ears. (3) The complicated and often controversial water allocation decisions currently facing stakeholders in the West offer a once in a lifetime opportunity for Westerners "to create a society to match its scenery." (4) This opportunity is arising in watersheds around the region, from the Klamath River in Oregon and California, to the Lemhi River in Idaho, to the Blackfoot River in Montana, and many places in between.

   A hard look at instream flow issues and a serious commitment to finding lasting water solutions are critical to the region's future. The political and legal approach to water is biased towards small steps and minor adjustments. (5) Contemporary regional water decisions affect millions of people in the West. Much more is required than the status quo approach to these decisions, and new emphasis must be placed on problem solving and practical results. Slowly around the West, local communities, agencies, governments, and stakeholders are forging negotiated resolutions that apply water fairly to the greatest number of beneficial uses. (6)

   The purpose of this Article is to broadly summarize several instream flow issues on a state specific and regional scale, and make discrete recommendations for developing a new, more solutions-oriented approach to water problems in the West. This Article makes general comparisons between state issues and developments, but does not grade or rank individual states. This Article begins in Part II with a limited factual overview of the present water and fish baseline in the region. Part III addresses the developments and challenges ahead for a collection of intermountain western states, the state of Montana, and the state of California. Part IV offers four recommendations for charting a new course in water management, water law and water policy in the West. These recommendations are solutions-based, and if acted on have the potential to produce lasting results to thorny water disputes whereby instream and fishery needs and consumptive water needs are met. The Article argues that the West's water future hangs in the balance, and concludes that rekindling a Western "pioneer-interest" in participatory democracy is a critical step towards ensuring a healthy water future.

2. THE WATER AND FISH BASELINE

   1. Basic Water Overview

      Water defines the West either by its abundance or its scarcity. California provides a useful illustration of this hydrological fact, where about seventy-five percent of rainfall occurs in the northern part of the state yet about seventy-five percent of the population lives in the southern part of the state. (7) Water has always been one of law's most politically charged areas. (8) Therefore, it is hardly surprising that "[w]ater litigation is a weed that flowers in the arid West." (9)

      Water is state property. (10) Western states have detailed code and regulation governing water. (11) While federal water law exists, (12) and federal water projects move large quantities of water in the West, (13) the administration of water use is largely left to the individual western states. (14) State based water allocation decisions are crucial to instream flow. (15)

      Each western state relies on the prior appropriation doctrine. (16) A short set of uniform principles applies under that doctrine. These include: "first in time, first in right," beneficial use without waste, and "use it or lose it." (17) The private property interest in water is a right to the advantage of the use of water. (18) Most western states now recognize fish and wildlife as beneficial uses. (19)

   2. Basic Fish Overview

      The presence of endemic fish species in the West is especially high. Sixty-nine percent of the native fish in the Colorado River Basin are found nowhere else in the world; in the intermountain Bonneville Basin that figure is forty-five percent, and in the Sacramento and San Joaquin basins in California it is thirty-three percent. (20) The diversity that these species represent is irreplaceable.

      They are not doing well. In the last century, at least twenty native fish in the West have become extinct. (21) Salmon and steelhead are in equally dire straits. (22)

      To take a state specific example, California faces a catastrophe in biodiversity and species loss. Among the fifty states, it ranks second in numbers of freshwater fish species that are declining. (23) Add anadromous fish, and the state leads the nation in species loss and imperilment. (24) At one time, California waters contained 116 native fish species. (25) Today, sixty-two percent of those species are either extinct or will require serious actions to prevent extinction. (26) A leading factor in aquatic and fish species decline is insufficient instream flow in the region's streams, creeks, and rivers. (27)

3. REGIONAL AND STATE REVIEWS

   1. The Intermountain West States of Colorado, Idaho, Utah, and Wyoming

      This Article groups Colorado, Idaho, Utah and Wyoming together to analyze regionally similar developments and challenges.

      1. Developments

         1. Grappling with Difficult Issues

            These intermountain west states apply traditional approaches to instream flow issues. (28) However, in each state there is some reason for instream flow optimism. Colorado is the casebook example of a highly regimented approach to water, (29) but it is now possible in that state to obtain "Recreational In-Channel Diversions." (30) In Idaho, many stakeholders and officials are taking notice of watershed-specific partnerships like on the Lemhi River, which is home to a successful flow leasing program. (31) In 2006, the Utah legislature passed a bill that reauthorized a legislative water issues task force, and directed that the force "shall review and may make recommendations on: (a) instream flow." (32) In Wyoming, during the 2005 legislative session, the state senate overwhelmingly passed a municipal storage bill that would have allowed municipalities to use storage fights in existing reservoirs for nonconsumptive purposes such as fishery flows. (33)

            Water scholar Frank Trelease once remarked:

            The law is a mechanism for getting things done, for accomplishing the purposes of society, for requiring some things and forbidding others. If the people of the United States or of a state desire to keep water in a stream or to put it back in a stream a law can be framed to do the job. (34) In the face of Colorado's worst drought in recorded history, state lawmakers put forward forty-three water bills, which experts observed was remarkable given the state's historical predilection towards turning a blind-eye to careful management of its water resources. (35) The fact that these states are slowly but surely addressing difficult instream flow issues is a major reason for regional optimism. (36)

         2. Recreation Is a New Driver

            Agriculture has historically been the largest user of water in the West. (37) In Idaho, for example, agriculture's presence is overwhelming and accounts for ninety-six percent of water withdrawals and ninety-nine percent of consumptive use. (38) Despite this historical dominance, (39) agricultural diversions peaked several decades ago. (40) The "Lords of Yesterday" (41) may rule the natural resources law of the land, but economies are changing around the region. (42)

            Recreation is a major new economic player. (43) Healthy rivers and natural resources fuel recreation. In 2002, anglers spent approximately $423 million in Wyoming. (44) Anglers spend approximately $46...