8001

• UCREFRP Catalog Number: 8001
• Author: Western Regional Instream Flow Conference.
• Title: Proceedings, Western Regional Instream Flow Conference.
• USFW Year: 1992.
• USFW - Doc Type: Oct. 2-3, 1992.
• Copyright Material: NO

PROBLEMS IN QUANTIFYING FEDERAL
RESERVED RIGHTS FOR NATURAL AREAS
John R. Hill, Jr.
Water Resources and Environmental Consultant
P.O. Box 3822
Englewood, CO 80155-3822
[phone]
ABSTRACT
For purposes of this paper, natural areas are defined as
federal reservations set aside for preservation in their natural
state, as opposed to multiple-use areas, and includes national
parks, some national monuments, wild and scenic rivers, and
some wilderness areas. The statutes creating such areas typically
require that the areas be kept "unimpaired" or in `free flowing
condition." While there are methodologies for quantifying flow
requirements for fish and channel maintenance, it is the author's
opinion that there are no methodologies legally or technically
adequate to quantify numerically the flow requirements to
maintain these natural systems in their natural or free flowing
condition. The problems arise from the fact that the state water-
administration systems, in which reserved rights are to be
integrated according to their priorities, anticipate and are
equipped to deal with annual amounts. Also, there are
compelling legal arguments that reservation of a national park,
wilderness area, or wild and scenic river in an unimpaired or
free flowing condition, reserves the flow regime existing at the
time of the reservation. These realities clash with the
expectations of Congress, the courts, the states and others that
federal reserved rights must be quantified numerically in the
"minimum" amounts necessary to fulfill the reservation purpose.
Introduction
In the first Western Regional Instream Flow Conference,
1 presented a paper entitled "Federal Reserved Rights." That
paper discussed the fundamentals of federal reserved rights
and briefly addressed how the federal reserved rights
doctrine might be applied to secure instream flows for
various federal reservations, including national forests,
national parks and monuments, wilderness areas and wild
and scenic rivers. The first paper introduced the problem of
quantification of instream reserved rights and suggested
that the problem has at least two facets-legal and techni-
cal. The legal facet involves the application of the rule of
"minimal necessity" applicable to quantification of reserved
rights to reservations, which are to be maintained in an
"unimpaired" or "free-flowing" condition. The technical
facet involves the problem with numerical quantification of
the flows required. This paper discusses both facets of the
problem and suggests a legally adequate and technically
workable approach to quantifying instream flows for
natural-area reservations.
Solely for purposes of this paper, natural areas are
arbitrarily defined as federal reservations set aside for
preservation in their natural state, including national parks,
some national monuments, wild and scenic rivers, and
some wilderness areas. Therefore, this paper does not
address multiple-use federal lands, such as national forests
and the public lands administered by the Bureau of Land
Management. Furthermore, in the interest of brevity and
simplicity, this paper will not discuss national monuments.
Before discussing the problem of quantification, a very
brief review of what a reserved right is, is necessary. Federal
reserved rights are created by implication when water is
necessary to fulfill the primary purposes of federal reserva-
tions or expressly by the legislation establishing the federal
reservation.' The priority date of a reserved right is the date
of the reservation, and only water that is unappropriated at
the time of the reservation can be reserved. The amount
reserved is only the amount necessary to fulfill the purpose
of the reservation. Reserved rights are based on federal
rather than state law.' However, once a reserved right is
adjudicated, it is subject to state administration.
PURPOSES OF NATURAL-AREA RESERVATIONS
National Parks
The fundamental or primary purpose of the national
parks is to conserve the scenery, the natural and historic
objects, and the wildlife therein, and to provide for the
enjoyment of the same in such manner and by such means
as will leave them unimpaired for the enjoyment of future
generations.'
Because national parks are established by separate
statutes, it is also necessary to read the statute authorizing
the particular national park. On the other hand, wilderness
areas and wild and scenic rivers are simply designated for
addition to the National Wilderness Preservation System or
National Wild and Scenic Rivers System. The purpose of
those reservations is as stated in the Wilderness and Wild
and Scenic Rivers Acts, respectively. Recently, Congress has
begun to include language regarding water, and in those
instances, it is also necessary to consider that language.
Wilderness Areas
The primary purpose of wilderness areas is to secure for
the American people of present and future generations the
benefits of an enduring resource of wilderness. For this
purpose, there is hereby established a National Wilderness
Preservation System and these shall be administered for the
use and enjoyment of the American people in such manner
as will leave them unimpaired for future use and enjoyment
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