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112 National Water Summary 1987-Water Supply and Use: HYDROLOGIC PERSPECTIVES ON WATER ISSUES and relatively free of pollution, whereas the East is more densely populated, water rich, industrial, and subject to pollution. In the East, water law is based on the riparian doctrine, in which (in its purest form) owners of land along a watercourse are entitled to have the stream flow through their land not perceptibly retarded, diminished, or polluted by others (Ausness, 1983, p. 548). Unlike the appropriation doctrine, the early riparian system was consistent with the concept of instream flows; thus, instream flow as an issue in the East did not exist until recently, as explained below. Population pressures, industrial growth, and an increase in irrigated agriculture in the Eastern United States and their attendant requirements for water have challenged the assumption that this region is "water rich." The concept of "natural flow" gave way to "reasonable use" as the guiding principle governing the exercise of a water right. Under the reasonable- use principle, any particular riparian land owner was entitled to use water for any beneficial purpose if that use did not unreasonably interfere with the water rights of others on the watercourse (Ausness, 1983, p. 549). In addition, many of the Eastern States have been mov- ing toward a form of permit, or water-allocation system, as a means of providing water to persons who do not own riparian lands. As a result of these increasing pressures on available supplies for offstream uses of water, several States in the East, as well as the Midwest, have established, or are considering, instream-flow protection programs. In 1949, Iowa became one of the first States to implement such a program by pass- ing legislation to set flow standards on its streams. These standards limit the ability of riparian users to take water in times of shortage. This is accomplished, in part, by administratively designating streams as "protected." Iowa's instream-flow program is the most comprehensive of any Eastern State and has had long-standing success. Other Eastern States and their form of instream-flow protection are listed in table 17. FEDERAL RESERVED WATER RIGHTS As a matter of public policy, the States traditionally have been given precedence in the development of water laws. During the 1970's, a new legal concept in water rights, which is called the Federal Reserved Water Rights, emerged that was long thought to apply only to Indian reservations. This doctrine allows the Federal government to claim early priority dates for water rights on certain Federal lands. As described by the U.S. Supreme Court (Cappaert v. United States, 1976): This Court has long held that when the Federal Government withdraws its lands from the public domain and reserves it for a Federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In doing so the United States acquires a reserved water right in unap- propriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Under this doctrine, the lands that are set aside (reserved) from the public domain for a particular purpose, such as national forests, national parks, national wildlife refuges, and wild and scenic rivers, are inferred to have a water rights to carry out the pur- poses of the reservation. The quantity of the water right is limited to the quantity needed to accomplish the purpose(s) of the reservation. The priority date, as it relates to water rights created under State laws, is the date on which action was initiated to create or change a Federal reservation (President's Task Force on Non-Indian Federal Water Rights, 1980). The Federal Reserved Water Rights doctrine for instream-flow purposes is important for two reasons-it establishes as legitimate certain instream uses of water (for example, watershed management, fishery maintenance, recreation, and esthetics) that otherwise might not have been recognized as "beneficial" under State water laws, and it gives these instream uses a priority date much earlier than would have been possible by using State water-rights procedures. Because Federal Reserved Water Rights apply to future as well as present water needs and might supersede senior rights in some cases, the doctrine introduces considerable uncertainty for State water managers and existing water users. To date (1987), claims under the doctrine have been for very small amounts of water. METHODS FOR DETERMINING INSTREAM-FLOW REQUIREMENTS As both State and Federal water laws have recognized various types of instream uses, technical methods have been developed and refined to deter- mine quantities of water to meet the needs of each use. One of the "new" instream uses-fish-habitat maintenance-actually has been part of the water- management scene for a number of years. Before the concept of instream flow became widely known in the 1970's, State and Federal fishery agencies had negotiated for "fish flows" for the operation of a number of dams, under provisions of the Fish and Wildlife Coordination Act of 1943 (first passed in 1934 and subsequently strengthened through amendment). These fish flows typically were expressed as "minimum flows." These efforts to obain fish flows challenged the dominance of economically oriented, diversionary uses of water. Nevertheless, from the perspective of today's understanding, there were six serious flaws in the con- cept of minimum flows for fish-habitat maintenance. • These early "minimum flows" were considered to be just that-a minimum-flow level below which fish populations (or other values, such as recrea- tion) would be seriously harmed. In fact, if true minimum flows were maintained for extended periods of time, fisheries and other instream uses would be seriously curtailed and might cease to. exist. The ability of a fish population to survive a single 1-in-10-year low-flow event might give the false impression that the fish population could remain viable even if this minimum flow (drought) condition was imposed continuously.