8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

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place water protection is incomplete, however, without a look at the options available to
the federal government. Not only may federal agencies apply for instream rights under
the laws of several western states, but independent avenues exist under federal law for
such agencies to establish effective instream resource protections. Opportunities spring
from federal permitting programs, environmental statutes enacted by Congress, and the
reserved water rights doctrine.

licensing and Permit Conditions

Federal permits or licenses are usually required prior to the development of new
water diversion and storage projects. If the project involves water developed on or from
the National Forests, application must be made to the Forest Service for a permit to
construct diversion and storage facilities. In issuing a permit, the Forest Service considers
the need for streamflows to maintain fisheries, recreational opportunities, and other uses
important to forest users. If hydropower is part of a water project, the Federal Energy
Regulatory Commission (FERC) becomes involved irrespective of whether the project is
on federal lands. FERC, in issuing hydropower licenses, generally includes conditions
that require adequate bypass flows for instream resource protection. The U.S. Army
Corps of Engineers undertakes a similar, although generally less stringent, review prior to
issuing its permits for works such as dams placed in navigable waterways.

Secondary Effects of Environmental Statutes

In issuing permits or taking other action, federal agencies are guided by
Congressional enactments to protect the environment. Key among these is the
Endangered Species Act which has no explicit provisions for instream water rights but by
implication can have significant effects on water diversions and use in the West. Because
the Act prevents federal agencies from adversely affecting endangered species and their
habitat, federal actions (including the issuance of permits) must not cause the
diminishment of instream flows that support endangered species.

The way in which the Endangered Species Act can promote maintenance of
instream flows is demonstrated in western Colorado. Endangered fish species, including
the humpback chub, squaw fish and bonytail chub, live in the Colorado River. The U.S.
Fish and Wildlife Service has worked on developing plans for the preservation and
recovery of the species in the Upper Colorado River basin, including purchasing existing
water rights to enhance streamflow levels. Any new water diversions in this region will
have to conform to instream flow mitigation measures mandated by the final recovery
plan.

The protections potentially afforded instream flows by the Endangered Species
Act have also been demonstrated in the South Platte River basin of eastern Colorado.

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