9351

• UCREFRP Catalog Number: 9351
• Author: Hobbs, G.
• Title: Water For Recreation, Water Quality, and Wetlands".
• USFW Year: 1990.
• USFW - Doc Type: \
• Copyright Material: NO

is the primary means by which water quality programs can function
in support of, rather than in derogation of, the prior
appropriation doctrine. Preserving the "assimilative capacity of
streams" has the effect of justifying the dilution of pollution,
a prohibited use of water in a water-short prior appropriation
State. See cases cited in Part I above. The CWCB instream flow
program has obvious benefits in preventing the dry-up of streams.
As a by-product, such appropriations can serve to establish a
defined low flow, such as the 7-day 10 year low flow baseline, or
seasonal flow assumptions, upon which discharge permit conditions
can be written. Augmentation of the stream, by storage releases
from reservoirs, also can have a water quality benefit. This is
recognized as a proper component of federally-funded reservoirs
by the Clean Water Act, 33 U.S.C. S 1252(b)(1)-(6).
However, recognizing the-use of water to dilute
pollutants, as a beneficial use, would be counter to the doctrine
of maximum utilization. The prior appropriation doctrine vests,
as a necessary element of the value of a water right, a cause of
action for damages and/or a resort to water quality control
regulatory mechanisms as the remedy for pollution problems. In a
water-short state, the dilution of pollution constitutes a waste -
of the water resource. Two articles which deal with water
quality/quantity issues and suggest solutions consistent with the
prior appropriation doctrine are "Water Quality Versus Water
Quantity: A Delicate Balance," 34 Rocky Mtn. Min. L. Inst. S 24
(1988) and "Water Rights Protection in Water Quality Law,"
50 U. Colo. L. Rev. 841 (1989). These articles cite, but
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