7128 ‎(2)‎

• UCREFRP Catalog Number: 7128
• Author: Barham, W. T., H. J. Schoonbee and J. G. J. Visser
• Title: Some Observations on the Narcotizing Ability of Electric Currents on the Common Carp
• USFW Year: 1989
• Copyright Material: YES

110 National Water Summary 1987-Water Supply and Use: HYDROLOGIC PERSPECTIVES ON WATER ISSUES
i
As applied in most Western States, the
beneficial-use principle requires the user who diverts
water to comply with State procedural requirements
and to apply water to beneficial uses. State constitu-
tions generally identify those uses considered benefi-
cial, such as municipal, irrigation, industrial, mining,
and livestock watering, and frequently list them in
descending order of priority. The beneficial-use
requirement, as defined by State laws, provides the
basis for the legitimacy of a water right. However,
for most water uses, the key determinant of the value
and the reliability of a water right has been the priority
date.
Conflict over such an essential resource as water
has been almost a natural part of water-resources
management over the years. The system of water law
serves two important functions-it provides a means
for resolving the myriad of conflicts among water users
and it serves to protect the integrity and reliability of
established water uses. However, the water-law system
has proved to be an adversary to the so-called new
instream water uses that emphasize a nondevelopmen-
tal, qualitative emphasis upon moving water within
natural watercourses for esthetic enjoyment, instream
recreation, fish and wildlife habitat, and enhancement
of the quality of life. This point was emphasized by
Dewsnup and Jensen (1977, p. 1), who wrote,
To fully understand and appreciate the
programs that are emerging in the
various Western States to protect
instream values, it is important to
remember the circumstances surround-
ing the development of the appropriation
doctrine of the West. The important point
to keep in mind here is that the basic
water law of the States was developed
at a time when the prevailing theme was
to divert and utilize as much water as was
necessary to sustain agriculture, promote
and maintain industrial growth, and
satisfy community needs. The public
interest was primarily an economic one.
As a consequence of existing water laws in
many States, instream flows for these new uses were
not considered beneficial, were unable to meet the
diversion requirement, and (or) were given a priority
date so junior that the authorized right could be rare-
ly exercised. However, during the past 20 years State
water laws and the interpretation of Federal laws have
undergone significant changes to accommodate the
newer, nondevelopmental instream uses of water.
The earliest formal legislative recognition of the
need to protect instream uses of water occurred in 1915
when the State of Oregon prohibited the diversion of
water from certain streams because they fed the
spectacular falls in the Columbia River Gorge. Because
this provision for instream flows protected esthetics
as a legitimate water use, it was, in one sense, a clear
departure from the past. The waterfalls in the gorge,
however, provided a strong economic base for
Oregon's important tourism industry. Consequently,
the legal provision could be seen as the protection of
an economic resource rather than as the explicit recog-
nition of esthetic purposes as a beneficial use of
instream flows. Furthermore, the legislature simply
sheltered the stream from diversion; it did not provide
a water right for the instream use.
In a similar situation only 2 years earlier (1913),
the courts in the State of Colorado relaxed somewhat
the requirement that a legal water right must be based
on a diversion from a stream. Cascade Town was a
resort area for tourists who were attracted to the local
waterfall and the luxuriant vegetation nurtured by the
spray from the fall. A power company planned to
divert the stream above the falls through a turbine,
thus depriving the falls of water. In an attempt to
protect the falls, a lawsuit was filed (Empire Water
and Power Co. v. Cascade Town Co.). The court
maintained that the use of the falls for purely esthetic
purposes was not a beneficial use. However, the court
decided that the spray from the falls, which watered
the vegetation, was a diversion, and that human
diversion was not necessarily required. This decision
became an important precedent for instream flows,
even though its application was quite limited and
indirect (Gould, 1977, p. 7).
Oregon took the lead among Western States in
establishing more generalized protection of instream
flows. In 1955, the State legislature established a
policy recognizing the importance of instream uses.
The law permits the water administrative body of the
State to establish flow quantities that will minimize
the effect of altered flows on the salmon fishery. This
important law, however, still fell short of actually
granting a water right for fishery use of water.
The establishment of a water right for instream
use is vitally important because of the nature of western
water law. First, the acquisition of a water right means
that a use has passed all the tests of legal legitimacy
and that the terms of the right are spelled out. Second,
the acquisition of a water right provides each use with
a priority date, so that it is superior to all subsequent
rights. Third, even if the right is junior in time to many
other rights, a junior water user can legally prohibit
a change in stream conditions from those existing at
the time that the junior right was established if the
change would damage the junior right (Gould, 1977,
p. 9).
In 1969, Montana became the first State to
provide for the legal acquisition of a water right for
instream uses, and the State Department of Fish,
Game, and Parks was allowed to acquire such rights
(Revised Code of Montana, Sec. 89-801). Since then,
other States have followed suit. At the present time
(1987), water rights can be obtained by a State agency
or other entity in Arizona, California, Idaho, Kansas,
Montana, Nebraska, Nevada, North Dakota, Oregon,
South Dakota, Utah, Washington, and Wyoming
(Lamb and Meshorer, 1983; McKinney and Taylor,
1988). The diversity of forms that the instream-flow
programs in selected Western States have taken is
shown in table 16.
WATER-LAW CHANGES-THE EAST
In the East, water quality is the problem, where-
as in the West, prevailing wisdom long maintained that
the volume of water is the problem. This follows from
the fact that the West is sparsely settled, arid,
C