Instream Flow Protection: Seeking A Balance In Western Water Use

by David M. Gillilan, Thomas C. Brown

Overview

<p>Instream Flow Protection is a comprehensive overview of Western water use and the issues that surround it. The authors explain instream flow and its historical, political, and legal context; describe current instream flow laws and policies; and present methods of protecting instream flow. They provide numerous examples to illustrate their discussions, with case studies of major river systems including the Bitterroot, Clark's Fork, Colorado, Columbia, Mimbres, Mono Lake, Platte, Snake, Wind, and others.<p>Policymakers, land and water managers at local, state, and federal levels, attorneys, students and researchers of water issues, and anyone concerned with instream flow protection will find the book enormously valuable.

Product Details

ISBN-13:	9781559635240
Publisher:	Island Press
Publication date:	07/01/1997
Edition description:	New Edition
Pages:	427
Product dimensions:	6.00(w) x 9.00(h) x 1.00(d)

About the Author

David M. Gillilan is a law student at the University of Colorado.

Thomas C. Brown is an economist for the Rocky Mountain Forest and Range Experiment Station of the U.S. Forest Service in Fort Collins, Colorado.

Read an Excerpt

Instream Flow Protection

Seeking A Balance In Western Water Use

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By David M. Gillilan, Thomas C. Brown

ISLAND PRESS

Copyright © 1997 Island Press
All rights reserved.
ISBN: 978-1-55963-524-0

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CHAPTER 1

What's the Big Deal, Anyway?

The obvious and most common reference of the term instream flow is to water flowing within a stream channel. But why would people be talking about that? How could instream flow be an "issue"? And why does instream flow need to be "protected"?

These questions have occurred even to people who make their living in the water resources management field. Harvey Doerksen, who later came to work extensively with instream flow issues, relates an anecdote about a meeting he attended in 1973 soon after he had been appointed the assistant director of Washington's Water Research Center. Speaker after speaker at the meeting of water resources professionals from Idaho, Oregon, Washington, and the federal government referred to "instream flow" as one of the region's primary water research needs. The term brought to Doerksen's mind only a vague image of flowing water but seemed to mean much more to the other participants. As subsequent speakers continued to make references to instream flow, Doerksen found himself wondering, So what's the big deal, anyway?

What many people don't realize is that streamflows in a vast number of the West's rivers and streams have been severely diminished, even extinguished, as water has been diverted for offstream use. Rivers have been a source of water for drinking, cooking, cleaning, and other domestic purposes for as long as there have been people in the West, and water has been used for industrial purposes for at least one and a half centuries. The host of domestic, public, and commercial offstream water uses associated with municipalities are among the most important contemporary uses of rivers, and the use of water in industry has helped to promote varied and productive economies throughout the West. The diversion of water onto irrigated fields was one of the first major offstream uses of water and continues to account for 80–90 percent of all water diversions in the West. Irrigation enabled the production of food and fiber in quantities sufficient to sustain not only westerners, but also residents of other states and countries. The use of water has, in fact, been the foundation on which the West's economies, cities, and towns have been built.

The West, however, is marked—even defined—by the scarcity of water. Rain and snow fall in abundance in some mountain ranges and along the Pacific Northwest coast, but arid conditions prevail over most of the West. The West is often said to begin at the 100th meridian, the line running north to south through the states of North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texas. As one travels west across these states, rainfall becomes more sparse, the landscape more arid, and farming more difficult. The eastern portions of the 100th meridian states receive enough rainfall in normal years to support crops, but west of the 100th meridian it is often not possible to grow crops without irrigation. Some parts of the West, such as the High Plains of Texas, the Mojave and Sonoran deserts, the Great Basin (centered in Nevada and western Utah), the Snake River Valley Plain of Idaho, and the deserts of eastern Oregon and the Columbia Plateau are even drier, frequently receiving less than ten inches of precipitation in an entire year. Sparse rainfall totals are reflected in the reduced frequency and size of western watercourses. A quick look at any map shows fewer rivers and streams in the western part of the country than in the East, and many of the western river channels appearing on maps actually contain little, if any, water during at least part of the year.

The combination of scarce supplies and numerous demands has put heavy pressure on the West's rivers and streams. Each diversion to an offstream use has left less water for the variety of water uses that take place within stream channels. Streamflows support fish, wildlife, and streamside vegetation and are used for a variety of recreational purposes, including fishing, swimming, wading, rafting, kayaking, and canoeing, as well as to enhance land-based recreational activities such as hiking, camping, picnicking, and bird-watching. Streamflows enhance the aesthetics of riverine environments and landscapes, maintain the viability of stream channels, and are used to transport goods, generate electricity, and dilute contaminants. Rivers are an integral part of the environment, and their "use" to support environmental processes has become more popular as our understanding and appreciation of these processes has grown. So while water scarcity is a fact in the West, perhaps even the region's single most defining characteristic, there has been no shortage of purposes for which western water is used.

When water is scarce, choices must be made about how it will be used. Legal systems in the contemporary American West have typically protected the offstream water uses of cities, farms, and industry at the expense of water used instream for fish and wildlife, recreation, aesthetics, and other purposes. Water rights—legally protected property rights to use water—have traditionally been granted only for offstream uses of water, sometimes in amounts that leave little or no water instream. The diversion of water from natural channels has historically been a prerequisite to the procurement of a water right. The allocation priorities inherent in these policies reflect the dominant water uses and values at the time that western water allocation institutions were developed, in the mid-1800s, when the public sought to encourage the rapid development and settlement of the West.

But conditions, needs, and values change. It is hardly possible these days to read or talk about water policy in the West without coming across the topic of change. Enormous population growth, concentration of the West's residents and economic activity in urban areas, higher standards of living, and increased mobility have all contributed to shifts in the water needs of western state residents. Water to meet new needs has largely become unavailable as existing watercourses and aquifers have become fully allocated and the best dam sites have already been developed. Talk of water conservation, transfers, and marketing has become commonplace as the need to use existing water supplies more efficiently has become apparent. Values, too, have changed, now that the need to settle the West is no longer a national priority. The proportion of the West's residents that makes its living directly from the development of natural resources has dropped dramatically, and nearly everyone—newcomers and fifth-generation westerners alike—is more aware of the impacts that water development has had on the environment. Water for fish and wildlife, recreation, aesthetics, and protection of the environment is valued more highly. In the words of longtime water lawyer and scholar Frank Trelease, speaking at an instream flow conference in 1976:

Perhaps our ancestors, our fathers, we ourselves not too long ago were willing to throw away as worthless some scenic, recreational, and environmental factors. Perhaps they were regarded as worthless because of their abundance, but now we realize what is left is far from abundant, that it is scarce, partly because we have already thrown away so much, partly because there are now so many of us that we compete with each other for what is left, and partly because the opportunities for enjoyment have been broadened by the automobile and highway.

Laws can be changed to accommodate these new conditions and values. As Trelease also said, "The law is a mechanism for getting things done, for accomplishing the purposes of society, for requiring some things and forbidding others. If the people of the United States or of a state desire to keep water in a stream or to put it back in a stream a law can be framed that will do the job." In recent years there have been numerous efforts to do just that, to change water allocation institutions to better protect instream uses of water. But the changes have been slow. Differences in values, the desire to protect existing property rights, and the fact that "water law is a human institution and just as resistant to change as other institutions" have combined to place numerous obstacles in the path of those who would increase the level of protection given to instream flows. Protection advocates have even been severely limited in their attempts to protect instream flows through the purchase of water rights.

Markets have been heavily championed as a means of shifting water from old uses to new, but market imperfections and some of the special characteristics of instream flow make it unlikely that markets can supply an adequate level of protection even in the absence of artificial barriers. The level of protection afforded instream water uses continues to lag well behind that given to offstream water uses, and is likely to remain behind without more aggressive efforts to make institutions more compatible with the preservation of instream flows.

Efforts to change laws are accompanied by substantial debate. Much of the general population has probably never heard the term instream flow, or, like Harvey Doerksen in 1973, associates the term only vaguely with an image of flowing water. But a considerable and growing number of people have become ardently committed to the idea of preserving instream flows. There is growing awareness of the fact that the benefits of preserving instream flow extend well beyond the immediate benefits derived by anglers and other recreationists. Leaving water in streams to protect aquatic and riparian environments provides value even to people who rarely if ever visit streams themselves, and to society as a whole. Instream flow protection preserves the options of future generations to enjoy the same natural environment that we enjoy today.

Some people, however, continue to view instream flow protection as an unwelcome constraint on the development of additional water supplies. Debates about the desirability of protecting instream flows encompass much larger issues, such as the meaning of property, the relationship of states to the federal government and of citizens to the state, and the relationship between economic growth and ecological preservation.

Our goal in writing this book is to provide readers with a comprehensive understanding of the many issues surrounding instream flow, and to shed new light on a poorly understood but very important natural resource topic. Conflicts over instream flows sometimes occur because of a difference in values, but they also seem to arise because of misperceptions and confusion about the basic facts of instream flow protection. Much of the debate over instream flows has taken place outside the view of the general public. If the public is to participate more effectively in the policy-making process, it will be necessary to raise the level of awareness about instream flow protection. Policy makers and natural resource managers too often have only part of the information they need to make effective decisions and may be unaware of the ways in which similar issues have been addressed in other states and situations. New developments affecting instream flows occur almost daily, so it is also useful to provide a comprehensive overview of where things stand today, so that we can better see what direction we need to move in tomorrow.

The following chapter contains a brief history of water uses and values in the West and describes the legal systems that have been developed to protect them. Water law, like other law, changes over time in response to changes in dominant uses and values. In recent years there has been a movement away from viewing water solely as an engine of economic development and toward increased recognition of the ecological and recreational values of water. Our book both directly and indirectly constitutes a study of the ways in which laws and policies have changed in response to new values and conditions, and chapter 2 provides the context for such a study.

Chapter 3 describes in more detail some of the most common instream uses of water. Instream uses of water are numerous and varied, and flow needs—the quantity and timing of flows necessary to accommodate instream uses—can differ for each type of water use and water user. This chapter presents some of the many factors that must be considered when evaluating instream flow needs and describes some of the ways in which analysts attempt to quantify those needs.

Chapter 4 focuses on perhaps the most basic instream flow protection issue: How much water should be left in streams? There is no single answer to this question, but this chapter presents and analyzes many of the factors that should be considered during an evaluation of instream flow protection needs.

Chapters 5 and 6 describe many of the basic issues associated with instream flow protection and the ways in which those issues have been addressed by the states. Many of the same issues arise in virtually all of the western states, but they have not always been addressed in the same ways. Legal and administrative changes designed to accommodate new conditions and values have taken different forms and been given different names, and attempts to review and understand all of them can lead to confusion. Our goal in writing chapters 5 and 6 is to emphasize similarities and enhance understanding of the basic methods used to protect instream flows, and to provide the information necessary both to think more creatively about solutions to instream flow problems and to benefit from lessons already learned through implementation of protection measures in other states.

Chapter 7 examines the effects that instream flow protection measures have on other water users. An evaluation of those effects can be fairly complex. In many situations instream flow protection measures have little, if any, detrimental effect on other water users and may even provide positive benefits. But the effects on other water users vary with the circumstances unique to each river. In some cases there are negative impacts that need to be taken into account when considering or designing potential protection measures.

The federal government is heavily involved in water management and instream flow protection issues. Chapters 8–10 describe the many different ways in which the activities of the federal government directly or indirectly affect instream flows, including numerous and varied direct protection efforts. Instream flow protection efforts of the federal government vary widely by program, agency, and region of the country, but in any form and degree are viewed by many westerners as a threat to existing water users and to state sovereignty over water management. The underlying conflict between federal and state authorities is a consistent theme throughout these three chapters.

The final chapter briefly summarizes some of the major themes of the book and lists the various methods relying on state and federal law that are available for protecting instream flow. The chapter closes with some observations about the effort to achieve a reasonable balance between instream and offstream water uses.

Each chapter focuses on particular aspects of the instream flow debate. It is hoped that by presenting these chapters together the book will constitute both a comprehensive, integrated introduction to the subject of instream flow protection and a useful reference for further research and understanding. The book should be useful to interested citizens, environmentalists, farmers, ranchers, land and water managers, administrators, policy analysts, policy makers, students, researchers, and others interested in natural resources and environmental management. Those not already exposed to the topic might think that a book of this length would be more than adequate to cover all important issues and activities related to instream flow protection. That is definitely not the case. Instream flow is a subject so broad, and so heavily examined by others throughout the last three or four decades, that we can hope to do no more than present a comprehensive introduction to the subject. To accommodate those who wish to research a particular topic in more detail, we have included a substantial number of references to additional materials. These references, together with additional comments, are presented as endnotes following each chapter. A complete list of references appears at the end of the book.

The debate over instream flows is a debate about how western rivers are, can be, and should be used; about how much water should be diverted for offstream use and how much water should be left to flow in streams. To those who have experience with the subject, the terms instream flow and instream flow protection bring to mind myriad concepts, principles, activities, and conflicts. As noted by Harvey Doerksen almost two decades after the meeting in which he had first wondered why instream flow was such a big deal, "The mere physical image of water in the stream fails to capture the intensity of the emotions involved in the issue, the political importance of instream flow in the water resources arena, and the symbolic importance of the issue as part of larger environmental concerns." Better understanding of the issues surrounding the topic of instream flow protection should lead to more productive discussions, fewer conflicts based on inaccurate information, and new and more creative thinking about solutions to water resource problems. These in turn should lead to policies and practices that better meet the needs of the West.

(Continues...)

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Excerpted from Instream Flow Protection by David M. Gillilan, Thomas C. Brown. Copyright © 1997 Island Press. Excerpted by permission of ISLAND PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

About Island Press,
Title Page,
Copyright Page,
Preface,
CHAPTER ONE - What's the Big Deal, Anyway?,
CHAPTER TWO - The Loss of Instream Flows: A Short History of Water Use and Water Law in the West,
CHAPTER THREE - Instream Uses of Water,
CHAPTER FOUR - How Much Water Should Be Left in Streams?,
CHAPTER FIVE - Instream Flow Protection Issues in the States,
CHAPTER SIX - Methods the States Use to Protect Instream Flows,
CHAPTER SEVEN - Effect of Instream Flow Protection on Other Water Uses,
CHAPTER EIGHT - Federal Authorities and Approaches for Protecting Instream Flows,
CHAPTER NINE - Federal Water Development Programs Affecting Instream Flows,
CHAPTER TEN - Federal Environmental Protection Legislation and Programs Affecting Instream Flows,
CHAPTER ELEVEN - Reaching a Balance in Water Allocation,
Notes,
References,
Index,
About the Authors,
Island Press Board of Directors,