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<br />Legislation in Oregon during the 1987 session provided an innovative twist to the <br />transfer of water rights to instream purposes. The new law allows irrigators who <br />conserve water to sell or use the historically unavailable losses that they save. Such use, <br />however, is predicated on the condition that roughly 25 percent of the saved water shall <br />be dedicated to the state for maintaining streamtlows if needed for the public interest. 16 <br /> <br />States may also promote the temporary transfer of water to enhance instream <br />flows during critical periods. In 1989, Montana enacted a statute authorizing the <br />Department of Fish, Wildlife and Parks to lease existing water rights and keep <br />appropriated water instream to protect a fishery.17 California used its state water bank <br />to transfer water to meet environmental needs during the 1991-92 drought years. IS <br /> <br />Efforts of Indian Tribes <br /> <br />Like state government, Indian tribes have the authority to manage, regulate, and <br />control waters in their jurisdictions. Waters flowing through or underlying an Indian <br />reservation generally fall under tribal jurisdiction regardless of whether the water is used <br />by the tribe, by individual tribal members, or by non-Indians residing within the <br />reservation boundaries. The courts have recognized the rights of tribes to issue water <br />use permits pursuant to tribal water codes and, in 1986 and 1987, Congress authorized <br />tribal governments to assume primacy on Indian reservations over major provisions of the <br />Clean Water Act and Safe Drinking Water Act.19 <br /> <br />A number of Indian tribes have enacted comprehensive water codes to promote <br />the management, use, and protection of reservation water resources. These codes <br />typically reflect, among other policies, the desire to maintain the natural environment <br />supported by free-flowing waters. For example, the Navajo Nation Water Code (which <br />regulates water use on the Navajo reservation in northeastern Arizona, northwestern <br />New Mexico, and southeastern Utah) directs the tribal Division of Water Resources to <br />administer water to ensure that adequate levels remain in streams, rivers, ponds, and <br />lakes. More specifically, in approving new water use permits, the director of the Division <br />shall incorporate conditions designed to maintain "pools and stream flows for fish, <br />wildlife, recreation, aesthetic and Navajo religious values."20 The Tribes of the Fort Peck <br />Indian Reservation have implemented a similar permit condition strategy in their water <br />code, calling for "protection for fish, wildlife, recreational and aesthetic values.'121 <br /> <br />Tribal governments have opportunities similar to those available to. states to <br />implement the various instream flow strategies listed in the previous section. They also <br />carry an important additional tool with which to protect instream flows, based on their <br />history as independent sovereign nations that made treaties and agreements with the <br />United States. In 1908, the U.S. Supreme Court recognized that an Indian tribe has <br />reserved water rights that supersede non-Indian water uses established under state law <br />after creation of the reservation.22 Subsequent court decisions have established that <br /> <br />1-8 <br /> <br />I <br />I <br />I <br />I <br />I, <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />