FLOOD05728

• County: Statewide
• Community: State of Colorado
• Basin: Statewide
• Title: Water Quality/Quanity Relationships
• Date: 6/1/1989
• Floodplain - Doc Type: Educational/Technical/Reference Information

1989]

WATER RIGHTS PROTECTION

the purpose of preserving the rights and jurisdiction of the States (
water. 81

II. EXPLICATING THE WALLOP AMENDMENT

With the exception of certain instream flow appropriatior
water rights can generally be perfected only when a structure is t
to control waters of the natural stream for beneficial use. The (
struction of waterworks almost invariably requires a 404 pen
Here, then, is the federal wrench on state water allocations that (
gress discussed and reworked in 1977. Because Congress realized
tremendous impact that 404 permit decisions can have on the ab:
of the states to implement their water law,S3section 10 I (g) was
tended to set the framework for 404 permit issuance with regar<
applications for waterworks. As a result, use of the Corps' public
terest review and the 404(b)( I) guidelines must accord deference to
exercise of water rights. Section 10 I (g) enunciates statutory princi
that can be utilized to integrate quality, quantity, and wetlands pro
tion interests in a way that accords with federalism and produces fe
ble permit criteria for construction of waterworks in the waters of
United States.s'
Advocates of the new riparianism, rallying to the banner of
upublic trust," "public interest review," "wetlands preservation,"
"antidegradation," suggest that the Clean Water Act should be
lized to allocate and reallocate water to a broad range of instream
vironmental, socioeconomic, cultural, and aesthetic values.
example, one commentator argues that the public trust doctrine
water quality regulation should be employed to restrict "the quan
of water extracted by appropriators" because "almost all extracti
of water contribute to water quality degradation by . . . reducing
quantity of water in the stream and, thus, its assimilative capacity
This effort appears to be part of a larger agenda to impress the "m
ral flow" doctrine of riparian law upon the prior appropriation sta

81. /d.
82. See, e.g., COLO. REV. STAT. ~ 37-92-102(3) (Supp. 1988) (Colorado instream flow statl
83. See supra part I.B.
84. Ttie complete text of ~ 10 I (g) provides:
It is the policy of Congress that the authority of each State to allocate quantities 0
water within its jurisdiction shall nol be superseded, abrogated or otherwise impaired b)
this chapter. It is the further policy of Congress that nothing in this chapter shall be COn
strued to supersede or abrogate rights to quantities of water which have been established b3
any State. Federal agencies shall co-operate with State and local agencies to develop com
prehensive solutions to prevent, reduce and eliminate pollution in concert with program~
for managing water resources.
33 U.S.c. ! 1251(g) (1982).