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ADVOCACY BY ENVIRONMENTAL GROUPS FOR INSTREAM FLOWS Charles F. Gauvin Executive Director, Trout Unlimited 800 Follin Lane, SE Suite 250 Vienna, VA 22180 (703) 281-1100 ext. 304 ABSTRACT Advocacy groups like Trout Unlimited face a special challenge in seeking flows which enhance cold-water fisheries. Unlike some recreational river users, our first concern is the need of resident salmonids for biologically sufficient habitat for the spawning, incubation, rearing, and migration components of a salmonid population's life cycle. Determining what constitutes a biologically sufficient flow is more difficult than determining what flow makes for an enjoyable recreational experience. It involves the use of science-hydrology, limnology, and biology- and so requires consultation with experts. Once we have determined the scientific parameters of our task, we face a legal and, in some cases, a political challenge. If legal mechanisms exist to enhance flows for salmonid fisheries, the focus of the advocacy effort is to build an evidentiary record to support the decision that we seek. If the law is not availing, advocacy must address the concerns of legislators whose agenda seldom yields to fish and wildlife concerns without a strong economic justification. Economic justification must address several components, including fishery resource valuation, secondary benefits, and market mechanisms. Much as legal advocacy must focus on record building, political and economic advocacy must demonstrate that: 1) the enhancing fishery resource in question has economic value; 2) fishery enhancement has economic benefits beyond the sale of fishing licenses and tackle; and 3) market mechanisms are available to take advantage of all benefits and compensate for the costs of flow enhancement. Enhancing instream flows for the benefit of fish, wildlife, and recreation is one of the toughest and most pervasive challenges currently facing conservationists. Flow issues arise in many contexts. The struggle to save threatened and endangered Pacific salmon in the Columbia River Basin is the largest-scale flow issue in North America. In the East and the Midwest, this year's host of FERC relicensing cases will determine whether historical practices of obstructing fish passage and dewatering bypass reaches will continue to devastate salmonid populations. Instream-flow problems in the Intermountain West present a special array of problems. One problem facing conservationists in the short term is the continuing primacy of state water laws based on appropriation doctrine and the concomitant lack of clearly established federal jurisdiction under statutes like the Federal Power Act or the Northwest Power Act which, in theory anyway, require balancing water use and fish and wildlife concerns. This does not mean that fish conservationists cannot invoke federal law to overcome the appropriation doctrine. It does mean, however, that federal jurisdiction may be available only in more limited circumstances. Litigation Strategy-Nibbling Around the Edges-Some Short-Term Federal Law Possibilities You May Want to Consider We've heard today about creative use of state water laws and reliance on the public trust doctrine and other legal theories, but let's assume that you have reviewed your options under state law and discovered that there are no state-law remedies which offer any reasonable chance to solve your problem. Unless and until you can change the law, your only hope may lie in federal law. Here's a brief checklist which may offer you some help: 1. Does the situation involve a flow-related threat to a reproductively isolated native fish or wildlife species? If so, the Endangered Species Act may offer some help. 2. If your flow problem relates to water users on federal lands, you may be able to argue that federally reserved water rights require enhancement of flows for the benefit of fish and wildlife. Even where there is no express reserva- tion, you can argue that a federal-land management agency's stewardship responsibility creates an implied reservation. 3. The Wild and Scenic Rivers Act protects instream flows from diversions that interfere with the designated values of rivers within the wild and scenic river system. 4. Although you might think that I am crazy to suggest this, you might stand to benefit if you can invoke FERC's jurisdiction under the Federal Power Act. The Act applies to both hydroelectric generating and storage facilities located on navigable waters. You would be surprised at how marry such facilities, particularly storage facilities, remain unlicensed. If there is one in the watershed, the FPA's resource agency consultation and water-use balanc- ing requirement may be a favorable alternative to a no- alternative situation under state law. 5. In the case of federal facilities, there is Clean Water Act Section 313, which has no express provisions, but does regulate temperature, DO, and other parameters. Legislative Strategy-Where We Need to Go for Long- Term Solutions to Instream-Flow Problems Given the continuing primacy of the appropriation system throughout the Intermountain West, the only comprehensive means available to ensure instream flows 38