THE CONTEMPORARY METHODOLOGY FOR QUANTIFYING RESERVED INSTREAM FLOW WATER RIGHTS TO SUPPORT AQUATIC HABITAT.

Author:Hedden-Nicely, Dylan R.
 
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  1. INTRODUCTION II. DEFINING THE QUANTIFICATION STANDARD III. THE CONTEMPORARY METHOD: THE COMBINED INSTREAM FLOW INCREMENTAL METHOD (IFIM) AND PHYSICAL HABITAT SIMULATION (PHABSIM) METHODOLOGY A. Preliminary Matters: Selection of Claim Reaches, Identification and Prioritization of Target Species, and Identification of Species Distribution Periodicity B. Data Collection Methodology C. Determination of the Weighted Usable Area: Hydraulic Modeling and Habitat Suitability Curves D. Capping the Claims: Marrying the Hydraulics and Habitat Suitability to the Hydrology E. Tying it Together: The Four Steps Applied IV. CONCLUSION "Lawyers don't do math." I. I.

  2. INTRODUCTION

    I have always found the common refrain that "lawyers don't do math" to be curious. Perhaps this is due to my background; I became a lawyer precisely because it provided the opportunity for me to blend my passion for both law and science. Given that, I recognize that my road is not the common path. Nonetheless, I am constantly surprised at the lengths many of my students and colleagues have gone in a futile effort to avoid science, engineering, and--most dreaded of all--math. These poor souls graduate from their post-secondary education having actively avoided these subjects only to fall into a practice that they only later realize involves a lot of math and science. The idle ones among us rely heavily on technical experts to shore up their lack of understanding or, worse yet, their unwillingness to understand. Most lawyers I have met, however, are committed to their clients and their craft such that they spend their career educating themselves on the scientific principles underpinning their particular area of the law so they can be active partners with the necessary technical experts in a joint effort to best situate their clients. Even those of us that do have a technical background are constantly learning new scientific principles and methodologies. This Article is designed to help these latter groups of lawyers by providing information related to commonly used technical methodologies in the law. In this case, we discuss the method for estimating the flow necessary to protect instream habitat to support fish: the Instream Flow Incremental Methodology (IFIM) and its component part, the Physical Habitat Simulation Model (PHABSIM).

    This Article is situated in the context of furthering reserved water rights that are claimed by American Indian tribes in order to protect aquatic habitat. Since time immemorial, indigenous people--particularly those in the region now referred to as the Northwestern part of the United States--have relied on the streams of their territory for food, fiber, transportation, recreation, cultural, and spiritual needs. (1) As a result of that interdependence, one objective for tribal people when they negotiated with the United States during the reservation era was to preserve their traditional way of life, along with the water rights sufficient to fulfill those important purposes. (2)

    However, this begs the question of how much water is necessary to fulfill these important traditional purposes. Unlike reserved water rights for irrigation--which has the well settled practicably irrigable acreage (PIA) standard--the United States Supreme Court has not identified a single quantification methodology appropriate for traditional uses of water. Instead, lower courts have fashioned a more ad hoc approach to quantifying traditional reserved water rights. (3) This seems preferable given that unlike irrigation water rights, which are fairly uniform in their nature, each tribe's traditional uses of water are unique and driven by the physical, historical, and cultural factors present for each tribe. Of the suite of water rights to maintain traditional uses of water, likely the most commonly claimed is for water to maintain fish habitat. Although the method for quantifying these rights have evolved over time, (4) courts have slowly converged on the IFIM/PHABSIM methodology. Although the IFIM/PHABSIM method does not enjoy the de jure recognition of its sister-methodology PIA, the consistent use and acceptance of this method has made it the de facto method for quantifying reserved instream water rights to protect fish habitat. (5)

    The purpose of this Article is to provide an explanation of the IFIM/PHABSIM methodology in an effort to put practitioners in the position to apply and, where necessary, critique the method. It proceeds in a chronological fashion; describing from beginning to end the steps necessary to develop a reserved instream water right claim using the IFIM/PHABSIM method. We begin this journey at the planning stage where important legal questions regarding the appropriate quantification standard must be resolved. From there, it launches into a description of the steps to estimate the quantity of water necessary to protect stream habitat using the IFIM/PHABSIM methodology.

  3. DEFINING THE QUANTIFICATION STANDARD

    The initial step in the quantification process is to define the appropriate quantification standard. This step provides the broad legal sideboards that technical investigators use when developing a method for estimating the amount of water necessary for a particular water right. The classic example is the Supreme Court's adoption of the quantification standard for reserved irrigation water rights. (6) There, the Court concluded that "the only feasible and fair way by which reserved water for the reservations fat issue in that case] can be measured is irrigable acreage." (7) With that, the Supreme Court defined--as a matter of law--that the appropriate quantification standard for reserved irrigation water rights is the "practicably irrigable acreage" standard. (8) From there, technical investigators set out to develop a methodology to estimate the "amount of water necessary to irrigate all the practicably irrigable acreage on the Reservation ...," (9) Unlike reserved irrigation water rights, the Supreme Court has never defined a single standard for reserved instream water rights. As a result, the quantification standard for instream water rights remains an open question in each adjudication.

    States and non-Indian water users often argue that the reserved instream water rights should be married to the "moderate living standard." (10) The Supreme Court has applied this standard to determine the quantity of fish certain northwest tribes are entitled to take pursuant to their treaties. (11) The moderate living standard entitles those Indian tribes to take the amount of fish necessary to maintain a moderate standard of living for its members, up to 50% of catchable harvest. (12) The inference is that since Indian tribes usually do not consume similar quantities of fish as when the treaties were made, the tribes' instream flow rights should be decreased congruent with current fish consumption. (13) However, while parallels exist between the right to harvest fish and the right to use water, the '"moderate living' standard makes little sense in the context of a water right." (14)

    First, the moderate living standard is predicated upon the concept of balancing the interests of tribal people against those of non-Indian fishers. The basis for this shared shortage is the fact that the treaties at issue in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n (Passenger Vessel) guaranteed "the right of taking fish ... in common with all the citizens of the Territory." (15) Justice Stevens found that based upon this language: "[t]he logic of the 50% ceiling is manifest. For an equal division--especially between parties who presumptively treated with each other as equals--is suggested, if not necessarily dictated, by the word 'common' as it appears in the treaties." (16) In contrast, there is no treaty language stating that tribal water rights are to be shared "in common" with non-Indians. Just the opposite, a cornerstone of the Winters doctrine is that quantification of reserved rights is not predicated on the balancing of the interests of non 10 See, e.g., Determination of the Relative Rights of Waters of the Klamath River, Oregon Office of Administrative Hearings for the Water Resources Department, Case No. 285 (Feb. 13, 2007) [hereinafter In re Klamath River, Proposed Order]. Indian water users. (17) Instead, the quantity reserved is the amount "sufficient to accomplish the purposes of the reservation." (18)

    Second, the moderate living standard assumes that the Tribe's fishing rights can be lost for nonuse. Indeed, writing in rather morbid terms, Justice Stevens noted that "[i]f ... a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run ... would be manifestly inappropriate. ..." (19) In contrast, a basic tenant of the Winters doctrine is that federal reserved water rights cannot be lost for nonuse and exist for both current and future water needs. (20)

    Finally, and most importantly, unlike a treaty fishing right, "[r] educing the water level below a level which would support a productive habitat would have the result of abrogating the reserved [water] rights." (21) Indeed, the right to take fish is fundamentally different from an appurtenant water right to support fish habitat because, unlike the fishing right per se,

    [T]he reserved [water] right could [not] be reduced without completely frustrating the purpose of the [R]eservation. ... For example, if the [T]ribes' 50% allocation of the harvestable fish run ... [is] reduced to a 35% allocation, the reserved [fishing] right would still survive after the reduction. In contrast, the ... reserved water right does not readily lend itself to such a reduction. (22) The difference is manifest: "a reduction of the take of fish allotted to the tribes means less fish ... a reduction [in the water quantity] below [the amount necessary to...

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