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Last modified
8/11/2009 11:32:57 AM
Creation date
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UCREFRP
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
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park or designation of a wilderness area or wild and scenic <br />river. <br />In some, if not most, national parks, water in the form of <br />rivers, lakes, waterfalls or geysers is one of the main <br />attractions to visitors. In addition to its scenic value, water <br />is an essential element of the ecosystem. Water also occurs <br />on the surface in ponds, springs, seeps, marshes, bogs, <br />swamps, and other wet areas. It also occurs underground in <br />varying degrees of connection with the surface waters. It is <br />the habitat or an essential part of the habitat for all living <br />things. Flow regimes determine the type of vegetation that <br />grows adjacent to or near streams. Flowing water moves <br />sediment in streams and determines the shape and location <br />of stream channels. Streams and lakes recharge aquifers or, <br />in some instances, draw all or part of their water supply <br />from aquifers in alluvial materials. Flooding streams deposit <br />nutrients in flood plains, supply adjacent wetlands, and <br />recharge associated aquifers. <br />In wilderness areas, water plays the same role as it does <br />in national parks. Certainly, it is one of the "natural forces" <br />referred to by the Wilderness Act. While wild and scenic <br />rivers are typically corridors, water also plays many of the <br />same roles that it does in national parks and wilderness <br />areas. <br />The amount of water in any of the natural areas discussed <br />here varies throughout the year and from year to year. The <br />natural variations include extremely wet and extremely dry <br />cycles. Methodologies exist to determine flow requirements <br />for fish habitat and channel maintenance. However, no <br />methodology exists to quantify the hydrologic regime in a <br />way that would describe the natural regime or regime <br />existing at the time of the reservation. The system is simply <br />too variable and complex. No known methodology can <br />calculate what will happen in the future. Moreover, even if <br />such a methodology existed, it would likely be both <br />expensive and time consuming to apply. <br />Any quantification based on annual or average amounts <br />would eliminate the extremes, which are a part of the <br />natural conditions that must be preserved. Numerical <br />quantification also limits the reserved right to the amount <br />specified. This, indeed, may be the objective of opponents <br />of the reserved right. However, limitation of the right to <br />annual amounts clearly is not fulfilling the statutory <br />purpose of maintaining the area in an unimpaired or <br />natural condition. Furthermore, assignment of numerical <br />quantities would indicate that any excess over those <br />amounts is available to be diverted away from the natural <br />area. This also is inconsistent with the maintenance of the <br />area in an unimpaired or natural state for future genera- <br />tions. <br />One reason for quantification of federal reserved rights is <br />to remove the uncertainty surrounding such rights and to <br />integrate them into the state systems for purposes of <br />administration. The state systems contemplate amounts, <br />usually in cubic feet per second, which can be delivered or <br />distributed by the state's water-administration officials <br />according to priority of appropriation. Of course, the only <br />situation in which administration would be required is <br />where there is a diversion inside one of the natural areas or <br />outside of the area in a position to affect the flow in the <br />natural area. In national parks or wilderness areas which <br />include the entire watershed, as many do, there is simply <br />no need for administration. Nature takes its course without <br />human intervention. <br />A SOLUTION <br />The inability to arrive at a numerical quantification which <br />adequately describes the natural hydrologic regime at the <br />time of the reservation, and the need to describe the right <br />for purposes of administration, suggest a simple approach. <br />The reserved right created by the establishment of a <br />national park or wilderness area is the natural flow (or lake <br />or pond level) subject to valid rights having priorities senior <br />to the reservation date. This quantification is consistent <br />with federal law that a reserved right is to waters <br />unappropriated at the time of the reservation. A right <br />described in this fashion can be administered very simply. <br />If an upstream appropriator has a priority date senior to the <br />reserved right, then that appropriator may divert. If not, the <br />appropriator may not divert. <br />Of course, those opposing federal claims will no doubt <br />argue that some water may be taken away from the park <br />without impairment. Even if this was true, however, there <br />is no known method of quantifying the amount that must <br />remain to keep the park in an unimpaired state for future <br />generations. A national park such as Yellowstone, Glacier, <br />Rocky Mountain or Yosemite is an extremely complex <br />natural system in which water plays many roles as just <br />discussed. <br />Opponents will make yet another argument that the <br />"precise" amount necessary to fulfill the purpose of the <br />reservation must be determined. The Colorado Supreme <br />Court has stated that the court adjudicating a federal <br />reserved right must determine the "precise" quantity of <br />water necessary to fulfill the reservation purpose.' As <br />previously discussed, it is not possible to determine <br />numerically the amounts of water necessary to keep a <br />natural area in its natural condition. The United States <br />Supreme Court has not addressed the question of the <br />degree of precision required to quantify a reserved right for <br />21
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