7033 - Laserfiche WebLink

Home Browse Search

for efficient water resource management and protection of instream resources. Yet streamflow assessment remains at least as much art as science. One short- coming is knowledge of basic fish ecology, especially for endangered and threatened species. More important, stream ecologists may question any methodology that reduces complex ecosystem effects to changes in three or four physical parameters (see Wydoski, 1976 and Cummins and Spengler, 1978). B. Protection of Instream Resources Ideally, water resource managers with basin jurisdiction would have the authority to reserve streamflows. Their decisions would depend on projections of the quantity and value of water consumed (for agriculture, municipal, and industrial use) and the damages to fisheries, recreational activities, and aesthetic values. The State of Montana actually initiated such a process with the Water Use Act of 1973. This act designates instream flows as a "benefi- cial use" and allows local, state, and federal agencies to apply for stream- flow reservations. In 1974, permit applications for large industrial users in the Yellowstone River Basin were suspended pending evaluation of flow reserva- tion requests. In 1979, the Department of Natural Resources and Conservation authorized the reservation of 80% of the existing average flow of the Yellow- stone River at Sidney, Montana, approximately 5.5 million acre-ft/yr. In most Western States, however, protection of streamflows is piecemeal. Two major obstacles to the protection of instream resources are the state statutes governing water allocation (see Gould, 1977) and the historical pattern of water development. Generally, in the appropriation states, the act of dive~ting water and putting it to beneficial use establishes a right and a priority to use water. In the original scheme of things, new appropriators would arrive until flows were virtually exhausted. While Colorado and North Dakota join Montana in recent recogni tion of the right to appropriate (or reserve) water for streamflows, this legal standing is lacking in New Mexico, Utah, Wyoming, South Dakota, and Nebraska (see Dewsnup and Jensen, 1977). Short of new legislation, a state engineer might use "public interest" criteria to reject new permit applications and provide de facto reservation, but this solution is both controversial and temporary. In many western water basins, the legal issues surrounding streamflow appropriations are moot in any case because much or all of the water has been appropriated. This is not to say that all the water is being used; rather that parties hold conditional rights to develop virtually all the water lega lly available. 6 Thus, not surprisingly, attention shifts to the Federal Government with its fat purse and expansive powers. Three acts of Congress and the activities of the Bureau of Reclamation and the Army Corps of Engineers are of particular interest. Section 7(a) of the Endangered Species Act contains some strong language. OThe amount of water legally available depends on the provisions and inter- pretations of interstate compacts (though not all interstate streams have compacts). This suggests an historical aspect of water development that is actually a boon to protection of instream values. The most senior appropria- tors tend to be situated toward the mouths of streams. Their water use provides de facto streamflow reservation upstream. 5