WSP04731 - Laserfiche WebLink

Home Browse Search

n. n ~'.- ~..j h) n tJ u .:. t, t :J them, two major issues are prominent: (1) Indian water rights and development needs, and (2) Federal reseFVed water rights. The problems of uncertainties in the application and quantification of Indian water rights have long been considered among the most pressing for the region. Indian water rights are generally based on treaties with the United States, case law, and interpretations of previous court rulings. While significant developments of water resources for the reservations have occurred and produced considerable irri. gated agriculture, much additional potential irrigation remains to be developed. Because of the many uncertainties in the legal framework, and because there are 23 Indian reservations in or partially In the Missouri Basin, these unquantified water rights pose difficult problems for all water interests. The pres- ence of large coal bodies on several of the reservations and growing emphasis on and activity associated with coal de- velopment creates an additional complication. Controversies over Indian water rights are not of recent origin. Within the Missouri Basin, the issue was addressed by the Federal courts as early as 1908 in the case of Winters vs. U.S. Government involving the Fort Belknap Reservation in Montana. In Winters the water rights issue was argued first on constitutional grounds--the relationship between the Federal Government and Indian tribes-and second, on economic considerations for the affected tribe. In brief, the court found that American Indian tribes granted to the Federal Government certain rights to vast landholdings-holdings which were capable of supporting their historic ways of life. In return for their giving up historic rlghts--accepting the dominant socie- ty's way of life by agreeing to move to the reservations--the Federal Government assumed specific treaty obligations (explicit or otherwise) to the tribes; obligations which could not be abrogated by State actions. The courts found further that goals of having Indians move into the mainstream of America would not be possible if the tribes were not provided the re- sources and economic means to do so. In the West, the means for reaching these goals rested to a large extent on the availa- bility and use of dependable supplies of water. In some parts of the Basin there are adequate water supplies to accommodate both Indian and non-Indian de- velopment needs, and 'State water plans can be adjusted to reflect Indian requirements without difficulty. However, in other water-short areas, obtaining adequate supplies of water to pro- vide for tribal needs will, at best, be a difficult achievement. This is particularly true for those tribes located where compet- ing users have already, or are fast approaching th.e point of oversubscribing the existing supplies of water. The ultimate quantity of water and the pace at which it is made available for Indian development in these critically short areas will depend primarily on the speed by which Indian water entitlements can be legally established in the courts. The problems associated with reserved water rights for Federal lands are similar to those for Indian lands--they are generally held to be in force but are unquantified and undesig- nated by location. Inthe matter of these rights, one viewpoint holds that when lands were reserved from the public domain, the United States implicitiy reserved water sufficient for use in accordance with the purposes for which the lands were re- served and as of the date of land withdrawal. This view ap- pears to have developed in part from a dispute over authority of the States to exercise control over the appropriation and use of water on Federal lands. The issue poses a major problem for all of the Federal land holdings in western States, but particularly in the Missouri region with such a large Federal estate. Although there is not a great amount of present .development and water use on such lands in the region, added uses may not conform with the State water rights structures. Directions There is great need for determining a means to quantify. the water use requirements of lands reserved from the public domain so that other water rights can be safely and firmly es- tablished and water resource planning can proceed in a mean- ingful and rational manner. In order for a rational, planned ap- proach_ to water management in this Basin to be' effectively im- plemented, it is imperative that legal and institutional arrange- ments keep pace with and thereby contribute to resolving the Basin's problems. Instream Flows Situation Statement Instream flow water uses are nonconsumptive uses for purposes such as fish and wildlife, recreation, navigation, water quality, and hydroelectric power generation. In most States of the Basin, streamflow is available for these nonconsumptive purposes as a residual only after existing water rights held by irrigators, industries, and municipalities have been satisfied. Currently, there are several estimates of and much difference of opinion about historic, present, and projected usage of water from surface and ground sources, and the remaining amounts available to meet future instream needs throughout the Mis- souri Basin. A few Basin States legally recognize the desirability of maintaining minimum streamflows for recreation and fish and wildlife, but in most States this is an incidental or subordinate use, not legally designated as beneficial. Directions There is a need for more accurate biological and ecolog- ical data associated with flow requirements for each instream flow function, and improved hydrologic data to determine water availability for meeting instream flow needs and competing water demands. The concept of maintaining minimum streamflows should be refined and supported through com- prehensive planning programs. A sound methodology to define instream flow requirements coupled ultimately with legal recog- nition of the need and administrative procedures necessary to maintain instream flows should be a Basin pla~ning objective. 43