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<br />1989] <br /> <br />WATER RIGHTS PROTECTION <br /> <br />may proceed without a Clean Water Act section 404 dredge and <br />permit8 and other approvals, the ability of the state water systems <br />operate for their intended purpose is inextricably linked to natiol <br />public land and environmental policy. <br />But melancholia is a passing mood for naturally optimistic w <br />teruers, and it is neither possible nor desirable to ignore the sovereil <br />"sagebrush rebeIlion" rhetoric notwithstanding. The comprehens: <br />water quality control and wetlands protection framework of the Cle <br />Water Act imposes extensive and costly obligations on the states a <br />water users. The national government's interests are omnipresent, a <br />the supremacy clause" of the United States Constitution makes ph <br />that states must respect the proper assertion of those interests. ] <br />creasingly, however, the legal literature criticizes the prior appropr <br />tion'doctrine, the predominant method of water allocation in weste <br />states, as lacking emphasis on instream riparian values, such as Ii! <br />wildlife, wetlands, and recreation. Concepts like the "public trust,' <br />"public interest review,"lI uwetlands preservation,"12 and "an <br />degradation"13 are being examined as possible tools to induce t <br />courts and administrative agencies to make decisions that can effecl <br />ate an allocation or reallocation of water from appropriative wal <br />rights to instream uses. Commentators have argued that water qual <br />programs should be utilized to restrict the exercise of water rights It <br />removes dilution water from streams and reduces their capacity to I <br />similate pollutants.14 Elsewhere in this issue, Blumm and Zaleha IS , <br />sert that the Corps of Engineers' responsibility for Clean Water A <br />section 404 permit decisions should be eliminated in favor of decisic <br />making by the United States Environmental Protection Agen <br />(EP A). While a comprehensive discussion of all of these argumel <br />exceeds the scope of this article, we view them collectively as a thir <br /> <br />8. 33 D,S,C, i 1344 (1982), <br />9. u.s. CONST. art. VI, ~ 2. See generally L. TRIBE., AMERICAN CONSTITUTIONAL LAW 479- <br />(2d 00, 1988). <br />10. See, e.g., Johnson, Public Trust ProteCtion for Stream Flows and Lake Levels, 14 D.C. DA <br />L. REV. 233 (1980); Davis, Protecting Waste Assimilation Streamjiows by the Law of Water AlIocatl <br />Nuisance, and Public Trust, and by Environmental Statutes, 28 NAT. RESOURCES J. 357 (1988). <br />II. 33 C.P.R. ~ 120.4 (1987) (Army Corps of Engineers' public interest review regulations <br />permitting decisions under section 404 or the Clean Water Act). <br />12. Blumm & Zaleha, Federal Wetlands Protection Under the Clean Water Act" Intergovernme, <br />Tension, Regulatory Ambivalence, and a G:Jllfor Reform. 60 U. COLO. L. REV. 69.5, 698 (1989). <br />13. Kassen, The Burden of Maintaining C%rado's Water Quality, 18 COLO. LAW. 23 (1989 <br />14. Johnson, The Emerging Recognition of a Public Interest in Water: Water Quality Control <br />the Public Trust Doctrine, in WATER AND THE AMERICAN WEST: EssAYS IN HONOR OF RAPHAEl <br />