7791

• UCREFRP Catalog Number: 7791
• Author: National Parks and Conservation Association.
• Title: Park Waters in Peril, National Parks and Conservation Association.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: YES

4
DAMS AND DIVERSIONS
Existing laws and programs do not
adequately protect parks from dams and diversions
both upstream and downstream which degrade or
threaten park resources and values.
Many parks have already been seriously damaged by
existing dams and diversions, both upstream and
downstream of their boundaries, and a multitude of
new proposals present more threats.
Upstream dams and diversions damage park
resources and values by changing the timing and
quantity of water flows, altering water temperatures
and dissolved oxygen levels, disrupting the natural
transport of sediment and organic matter and silenc-
ing flash floods. The best known example is at the
Grand Canyon, but as this Report documents, the
problem is widespread. At Dinosaur National
Monument, for example, construction and operation
of an upstream dam extirpated endangered fish,
altered streamside vegetation, and washed away
beaches important to fish reproduction and recre-
ational rafting. Dramatic fluctuations in river flows
from hydropower generation upstream of Dinosaur
created sometimes-hazardous white water rafting
conditions. At Everglades National Park, plant and
animal communities have been drastically degraded
or destroyed by the diversion of upstream waters.
Downstream dams can impede the migration of
anadromous fish as well as terrestrial animals, with
significant effects on up the food chain. At Olympic
National Park, for example, the Elwha and
Skokomish Rivers have been devoid of anadromous
fish within park boundaries since dams were built on
those rivers in and just outside the park. These dams
also flood steep mountainous valleys, obstructing elk
migrations to winter range.
Despite the seriousness of these impacts, the
available legal or administrative tools have not been
adequate to prevent adverse impacts to park water-
related resources from the construction of new dams
and diversions, or the operation of existing ones.
Even within parks, where the construction of new
dams and diversions for power production has gener-
ally not been permitted since 1935,14 the Park Service
lacks adequate authority to control flow regimes from
in-park dams erected before a park was established.
Moreover, problems generated by dams and diver-
sions are likely to be exacerbated by the growing
interest in acquiring or selling water through market
transactions. These transactions will increase propos-
als to change approved water uses and existing points
of diversion, creating new threats to park waters.
Dams and diversions that have been specifically
authorized and funded by federal legislation present
particularly difficult problems, especially where the
legislation authorizes allocations or uses of water that
may be inconsistent with the protection of park val-
ues downstream. Even if a park's water right would
ordinarily entitle it to preference over the water uses
served by the dam, any legislation providing for a
federally funded dam is likely to be interpreted as
overriding the park's water right. In these situations,
protection of the park's downstream flows will largely
depend on Park Service negotiations with the agency
managing the dam -negotiations in which the Park
Service is likely to have a weak hand.
At Everglades National Park, for example, fed-
eral legislation authorized and funded a Corps of
Engineers program to divert and manage southern
Florida's surface waters by constructing a complex
system of canals and water storage areas. That legisla-
tion left the park with no effective legal or adminis-
trative tools to challenge the loss of crucial sheet
water flows. The result has been disaster for the
park's wildlife and biological processes. Belated con-
gressional efforts have not yet been adequate to
restore Everglades' decimated wildlife populations.
Where upstream dams are-not federally man-
dated, protection of park waters from the impacts of
dams and diversions may depend upon the status of a
particular park's legal entitlement to the water in
question, or water rights. Theoretically, the federal
reserved water right doctrine should provide some
protection. But as discussed in section 3 on
"Uncertain Water Rights," significant problems con-
front Park Service efforts to assert those rights. In
addition, it is doubtful that reserved rights will pro-
vide any protection against damage from downstream
dams or diversions. A water right establishes only a
park's right to receive or hold a quantity. of water. It
is unlikely to protect parks from downstream water
uses that may harm park water-related resources,
such as fish and wildlife, because downstream diver-
sions and impoundments do not affect flows within
the park.
Apart from the federal reserved water right doc-
trine, certain specialized legal or administrative tools
may help to protect parks from the adverse impacts
of new or existing dams and diversions in some situa-
tions. Legal tools of this sort, however, are not
designed specifically to protect park values, and may
consequently provide only limited protection.
The Endangered Species Act,ls for example,
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