Laserfiche WebLink
<br />exanple, Sai\e state laws do not recoynize appropriative water rights in main- <br /> <br />tenance of water levels in streams 16/ (hereafter generically referred to <br /> <br />as "instream flOW's"), or afford them a lOW' priority,17/ althoU<Jh I:Iaintenance <br /> <br />of stream flOW's is sor,let:Ures necessary to carry out federal management purposes; <br /> <br />and some states do not reyu1ate ':jroundwater ~ing, whicn can threaten federal <br /> <br />lands ana resources. Finally, assertion of a federal right in federal court <br /> <br />is seen as fDtentially IOClre fair to federal interests because sane state <br /> <br />water systems are perceived as dohlinated by local interests hostile to federal <br /> <br />claims, anu because the feoeral governr..ent does not have the right to obtaill <br /> <br />review of state court decisions on these issues in the Supreme Cburt; rather, <br /> <br />review in that Court is pursuant to the discretionary writ of certiorari. <br /> <br />G. Mutual State and Feaeral Interests <br /> <br />Lest this sllnpllStic overview of the diverging perspectives on this <br /> <br />issue lead to the conclusion that the interests of the states and the federal <br /> <br />agencies are h01'€lessly antagonistic, sane camlOn interests of the states <br /> <br />16/ As far as the 'l'ask Force has determined in a brief review, the states <br />of Colorado, Idaho, t'Klntana, oregon and Washington currently have statutory <br />prCNisions which allOW' for the appropriation of water for maintenance of in- <br />stream flOW's. (Colorado law provides, h~ver, that only the state can perfect <br />a water right in an instream flOW'.) Other states like California which <br />do not expressly recognize water rights in instream flOW's have, h~ver, <br />other rrecnanis.1s availal>le for protecting instream flOW's; ~, by limiting <br />upstream appropriations, exercising a state navigation servitude, or imposing <br />conditions and restrictions on water use 1'€rlLuts or transfers or exchanges <br />of water. See, ~, J);!wsnup and Jensen, "State laws and Instream FLOW's" <br />(t-'repared for western Ellergy and Land Use Team, Fish and Wildlife Service, <br />Dept. of the Interior, March 1977), passim. <br /> <br />17/ State laws typically accord dauestic use the highest priority, follOW'e<J <br />by industrial and then ayricultural, with fish/wildlife/recreation uses bring- <br />ing up the rear. The leyal consequence of such priorities, hOW'ever, varies fran <br />state to state. <br /> <br />-22- <br />