This article examines the relationship between the four major federal land-managing agencies and state water law and makes a five-part recommendation for finding a balance in the tension between the state and federal governments over water rights for federal lands. First, federal agencies need to articulate a cohesive policy for evaluating options for instream flow protection under state law. Second, in response to federal recognition of state law solutions, states need to remove barriers for protecting federal interests. Third, in the process described above, the federal agencies must maintain their options under federal authorities for establishing water rights and not refrain from utilizing those authorities before securing the equivalent protection under state law. Fourth, federal and state officials need to continue seeking unique and creative solutions to the tension between state and federal law on water rights, while recognizing that the devil lies in the details of these innovative approaches. Finally, both the state and the federal governments should enhance citizen and public involvement in the policy discussions and ultimate resolution of these water rights conflicts.
I. Introduction
Imagine your favorite national park, wildlife refuge, wilderness area, national forest, or recreational area. Now consider how your favorite spot would look without water. Every ecosystem relies on water; ecological integrity cannot be maintained without it. Often land conservation efforts focus on the physical metes and bounds of a particular parcel of land without adequately considering the mechanisms for protecting the water resources associated with the overall conservation goal. Water shortages, familiar in the western United States and quickly moving east, demand that water resources be considered in conservation planning initiatives.[1]
From the scientific perspective, the role water plays in preserving the integrity of an ecosystem is essential. Any particular parcel of land or larger ecosystem can include streams, rivers, lakes, ponds, wetlands, pools, springs, and groundwater resources. The addition or removal of water has profound consequences for an ecosystem's integrity. The hydrologic relationships that maintain ecological integrity are complex and often unrecognized by legal systems. As a result, legal frameworks often come up short or unfocused from the scientific perspective.[2] Scientists have made significant advancements in their understanding and quantification of water in the natural system.[3] The law can benefit from these advancements, but the science is rarely compelling on its own, especially when legal tools are limited and restrictive. As scientists in the field recognize, "[i]nadequate laws and policies can prevent the best science and informed public support from playing their legitimate role."[4]
Despite the limitations inherent in the legal landscape, the last decades have seen progress and provided countless opportunities for science to play an integral role in moving legal and policy debates forward.[5] Because each state enacts its own water code, state legislatures and administrative agencies have led the way in developing initiatives to protect water resources.[6] Most significantly, the western states amended or reinterpreted state law to protect non-consumptive, instream water use--as opposed to the more traditional consumptive, diversionary water rights.[7] "Non-consumptive" or "instream flow" refers to water use that does not involve removing water from the natural system through a diversion. For example, a water right for a certain quantity of water to be left in place to maintain a river's flow or a lake's water level is considered a non-consumptive use. Questions remain whether the federal government can use state instream flow law to protect federal interests.
The significance of federal use of state instream flow law directly relates to the amount of federal land in the West. The federal government owns and manages many of our most prized public lands and associated water resources.[8] The United States has distinguished itself by the choices its citizens have made to preserve land as national parks, national wildlife areas, national forests, and conservation areas. Both collectively and individually, we as a people, acting through our elected representatives, have chosen to set aside certain areas because of their ecological, historical, scientific, or scenic value. Our system of public lands each dedicated to particular public purposes distinctly characterizes our ethics and our national choice to preserve these treasures intact for future generations.
At the time each parcel of land was set aside, Congress and the Executive articulated the purposes for the land designation.[9] These federal purposes were codified in specific statutory mandates and set forth in Executive Orders. Various federal agencies, including the National Park Service (NPS), the United States Fish and Wildlife Service (FWS), the United States Forest Service (FS) and the Bureau of Land Management (BLM), among others, are responsible for carrying out these federal purposes. Each of these federal land-managing agencies operates pursuant to specific statutory mandates that outline a directive for the respective federal lands.[10] Frequently, these directives necessitate the protection of water resources and agencies are required, as a matter of federal law, to fulfill their statutory obligations.[11] Federal land managers, therefore, face the challenge of using federal law to protect water resources or matching state water law provisions with various federal mandates. The question for federal land managers, therefore, is not whether to protect water resources but which legal mechanisms will allow them to carry out their mandate. This question includes whether state instream flow laws can be used for federal lands.
This Article examines the relationship between the four major federal land-managing agencies and state water law focusing specifically on the protection of non-consumptive water use in the Western states.[12] Part I examines the fundamental tension between state control of water resources and federal reserved water rights under the federal reserved water rights doctrine. Part II summarizes the statutes, regulations and policies associated with the four major federal land-managing agencies: the NPS, the FWS, the FS, and the BLM. The Article focuses particular attention on the water rights policies of each agency by comparing the language describing each agency's use of state law to protect federal resources. Part III evaluates and categorizes limitations under state instream flow laws for federal land managers. Specifically, the Article organizes the challenges under state law into four categories--definitional, structural, administrative, and political.
Finally, Part IV of the Article makes recommendations for improving the opportunities for federal agencies to utilize state instream flow law. First, federal agencies need to articulate a process for determining whether seeking a water right under state law is appropriate and make a commitment to seek solutions under state law. Second, in response to a federal commitment to seek solutions using state law, states need to remove barriers for protecting federal interests. Third, as the process described above unfolds, the federal government must continue to carry out congressionally-mandated goals and preserve water rights on federal land, even if it means using federal law to do so. The federal government should not compromise its ability to protect federal lands by abandoning federal law options before securing equivalent protections under state law. Fourth, federal and state officials need to continue seeking unique and creative solutions to the tension between state and federal law on water rights, while recognizing that the devil lies in the details of these innovative approaches. Fifth, to promote accepted and lasting solutions, state and the federal governments should enhance public involvement in the policy discussions and ultimate resolution of water rights conflicts.
II. The Fundamental Tension--State Control of Water Resources and the Federal Reserved Water Rights Doctrine
In the United States, each individual state has the authority to determine how water will be allocated within its borders.[13] Thus, each individual state has the authority to determine the allocation of specific rights to use water among its citizens. State law governs the allocation and administration of water rights unless state law interferes with congressional directives.[14] Two general categories of state law systems exist: prior appropriation and riparian.[15] In the western United States, where human demands for water exceed the natural supply, the doctrine of prior appropriation governs the allocation of water rights.[16] In these prior appropriation jurisdictions, water rights are determined based on the water user who is the first to put the water to "beneficial use." State law defines which uses will be beneficial. Disputes in prior appropriation states often center on priority dates, the use of water "beneficially" as defined by state law, and the availability of water for appropriation by new users.
The federal land-managing agencies operate in the context of these state law systems while carrying out their federal mandates. It is important to distinguish between the proprietary and regulatory roles a federal agency can play. Often tension between the federal and state government arise when the federal agencies are exercising their regulatory authority. This article examines federal actors, not in their regulatory role, but as property owners within the state's boundaries. The federal government seeks to protect its proprietary interests when asserting water rights to fulfill federal purposes. Not surprisingly, state and federal sovereigns often disagree about allocation of water resources.[17] This article explores the tension that arises when the federal government seeks to protect non-consumptive water use on federal lands. Federal land managers face a fundamental dilemma of whether to secure water rights under state or federal law.[18]
For many western states the answer is simple: federal agencies should use state law mechanisms to secure their water rights.[19] Federal land managers, however, have a choice and can assert rights under federal law, including the federal reserved water rights doctrine. States have often resisted or discouraged federal efforts to assert water rights under the federal reserved water rights doctrine, preferring instead that federal agencies secure water rights for federal lands pursuant to state law.[20] The federal reserved water rights doctrine[21] provides that when the federal government reserves, or in some instances acquires, land for particular purposes, there is an implied reservation of unappropriated water at the time necessary to achieve the purposes of the reservation.[22] The federal reserved water rights doctrine allows the federal government to reserve, outside the parameters of state water law, an amount of unappropriated water necessary to achieve the purposes of the federal land designation. The United States Supreme Court acknowledged and upheld the assertion of water rights under this doctrine for the primary purposes of reservation, but indicated that federal agencies should secure water rights under state law when these rights are necessary to carry out secondary purposes on federal lands.[23] As water users within the state, the federal agencies must determine whether to invoke federal mechanisms to protect water for federal lands or rely on state law.[24] Specifically, if these agencies want to use state law, they must reconcile their individual federal mandates set out by Congress and the Executive with provisions of the state water code.
III. Water Rights Policies: Defining the Federal Relationship with State Water Law
The tension between Western states' desire that the federal government use state law to establish its water rights and the federal government's option to assert rights based on federal law may appear unavoidable. However, the policies adopted by the federal agencies regarding water protection all recognize the relationship to state water law, but provide an exception when federal purposes cannot be achieved using state law. Federal agencies exist as a result of congressional legislation and delegated Executive Branch authority. As a creature of specific legislation, statutory authority guides each of the federal land-managing agencies' actions and responsibilities. Thus, one must look to the enabling legislation of the agency, which clarifies the need to protect water resources, and subsequent direction given by Congress and the Executive Branch to determine the agency's obligations. As discussed below, each agency's enabling legislation and subsequent congressional and executive direction outline the necessity for the protection and acquisition of water rights.
For the National Wildlife Refuge System,[25] a nationwide system of lands managed by the FWS for wildlife purposes, Congress established that "each refuge shall be managed to fulfill the mission of the System, as well as the specific purposes for which that refuge was established."[26] Congress defined the mission of the system to be the administration of a "national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans."[27] In this language, Congress expressly referenced the need for land and water to restore fish, wildlife, and plant resources.
Congress also indicated the value of protecting water resources when it reserved national forest lands. For National Forest System lands, managed by the FS, Congress insisted that "no national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens."[28] The Multiple-Use Sustained-Yield Act further authorized the Forest Service to manage forests for a range of co-equal purposes including outdoor recreation, range, timber, watersheds, wildlife, and fish.[29]
Similarly, Congress specifically directed the BLM to protect water resources so that our vast system of public lands would be protected in their natural condition. The BLM oversees public domain lands that have not otherwise been reserved, homesteaded, or claimed before the Taylor Grazing Act of 1934.[30] The BLM manages these lands pursuant to the Federal Land Policy and Management Act (FLPMA)[31] which provides that
public lands [are to] be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.[32]
Finally, Congress directed the NPS to manage park lands for the fundamental purpose of "conserv[ing] the scenery and the natural and historic objects and the wild life therein and . . . provid[ing] for the enjoyment of the same in such [a] manner and by such means as will leave them unimpaired for the enjoyment of future generations."[33] Referred to as the "non-impairment mandate," this standard guides management decisions in the national parks system including decisions regarding water resources. Protecting water resources within the park system falls well within the purposes set out for national park lands and the associated non-impairment mandate.[34] It is difficult to imagine our national parks without water--the Grand Canyon needs the flow of the Colorado River, Yellowstone needs the gush of Old Faithful.
In addition to the general mandates set out for each agency in their enabling legislation, Congress and the President set forth basic goals for particular land designations.[35] Thus, a federal agency looks to its enabling legislation coupled with the specific direction given in a particular land designation to determine the purposes that must be met.[36] To carry out the purposes identified through the organic legislation and the particular mandate, each agency has adopted policies to guide the land managers decisions. This Article looks, in particular, at the agency policies with regard to water rights. These internal policies guide the agency's decision making on issues related to the protection and use of water resources consistent with the agency's authorities and obligations.[37] All of the policies recognize, to varying degrees, state law mechanisms for protecting water resources on federal lands.
The NPS policy is by far the most general and flexible and commits the agency to work with state administrators to protect park resources while reserving all legal remedies under federal law:[38]
Water for the preservation and management of the national park system will be obtained and used in accordance with legal authorities. The Park Service will consider all available authorities on a case-by-case basis and will pursue those that are the most appropriate to protect water-related resources in parks. While preserving its legal remedies, the Service will work with state water administrators to protect park resources, and will participate in negotiations to seek the resolution of conflicts among multiple water claimants.[39]
The FWS's water policy specifically directs refuge managers to seek state-based water rights to achieve the purposes at a particular refuge unit, but provides a significant exception when state law doesn't allow the federal purposes to be achieved:[40]
It is the Service's policy to comply with State laws, regulations, and procedures in obtaining and protecting water rights, both for Service facilities and for trust fish and wildlife resources on lands not owned by the United States, except where application of State statutes and regulations does not permit Federal purposes to be achieved.[41]
Further, in a subsequent provision in the FWS Manual on the acquisition of water rights, the FWS policy provides that "[w]ater rights for acquired lands are usually obtained under State law."[42] As a result of this policy, the FWS holds 1) state-based water rights that were acquired when FWS bought land to add to the refuge system, 2) state-based rights that were applied for through the state's water right permitting program, and 3) state-based water rights that are purchased using specific acquisition authority and then transferred to FWS uses.[43]
The FS policy also recognizes that water rights can be obtained under state law if the federal reserved water rights doctrine does not apply.[44] Interestingly, the FS policy starts with the operation of federal law and makes state law the fall back provision. The FS relies "on the reservation doctrine if the land was reserved from the public domain and for the reservation purposes identified in the documents or legislation"[45] and has a policy of [o]btain[ing] water rights under State law if the reservation doctrine does not apply."[46]
Finally, the BLM's water policy[47] specifically provides for water rights to be secured pursuant to applicable state law except where the reserved water rights doctrine applies:
The water policy of the BLM is [to] . . . [a]cquire and perfect the water rights necessary to carry out public land management purposes through state law and administrative claims procedures unless a federal reserved water right is otherwise available, and a determination is made that the primary purpose of the reservation can be served more effectively through assertion of the available federal reserved water right. [48]
Moreover, the BLM policy recognizes the primacy of state control of water resources by stating that two of the objectives of the program are to cooperate with state governments and conform to applicable state water rights laws.[49]
Although the federal policies all require the agencies to work with the states, each policy acknowledges that there may be circumstances where state law is insufficient to protect federal purposes. Under these circumstances, federal agencies frequently turn to the federal reserved water rights doctrine. Federal agencies face questions of whether mechanisms existing under state law for protecting non-consumptive use are available to federal agencies and sufficient to meet the mandates on federal lands. Most commonly, the federal agency turns to federal law when the agency seeks to secure instream flow or a non-consumptive use permit under state law.[50] For various reasons, detailed below, state law does not always recognize or provide a legal structure for the types of rights that will allow the agency to achieve its purposes.
IV. Limitations and Risks Under State Law for Federal Agencies
This article identifies four types of problems that arise when federal agencies assert water rights under state law. First, in many states the issue is definitional; state law is defined so that there are no options for federal land managers to seek necessary water rights under state law. Definitional problems include how the state describes beneficial use, the requirement for a diversion, and the standard for establishing instream flow rights. The second challenge arises if the state law is structured in a way that prevents the federal government from securing necessary water rights. Structural issues include the mechanisms for holding instream flow rights, the priority dates for instream flow rights and enforcement of these rights. Third, federal agencies may face obstacles in the way the state administers its water rights system. For example, a federal agency may apply for a water right, but find that the state is unable to process the application. Or, a federal agency may obtain a water right and find that the state lacks the administrative ability or resources to enforce that right.
Finally, the powerful tension between state and federal authority over water creates political and institutional obstacles to the full utilization of state law by federal agencies. The very nature and scope of state legislative power and oversight can create complications for the federal land manger seeking water rights to carry out an agency's purposes. The vast quantity of federal land and numerous federal authorities can overwhelm the state water allocation systems. Under principles of state control, states, subject to the public trust, control the allocation of water within their boundaries. Many state constitutions contain explicit assertions of state authority over water rights.[51] Exercising this state power, each individual state can control and change water law within the state in ways that may be inconsistent with federal interests.
A. Definitional Limitations
1. State Definitions of Beneficial Use
For many years, the criticism of state law was that it did not recognize non-consumptive water use as a valid water right.[52] Today, nearly every western state water code contains provisions to protect non-consumptive water use, also referred to as instream flow.[53] States accomplished instream flow protection by adopting definitions of beneficial use that included non-consumptive water uses. In western water law under the prior appropriation system, "beneficial use" is the basis, measure, and limit of a water right.[54] A right to use water can be granted only if the use to which it will be put falls within the beneficial use definition adopted by the state.[55] Definitions of beneficial use vary from state to state, but the majority of western states have expanded their definitions of beneficial use to include non-consumptive uses such as fish and wildlife, wetland maintenance, instream flow, and recreation.[56] In Oregon, for example, beneficial uses include uses of water for "domestic, municipal, irrigation, power development, industrial, mining, recreation, wildlife and fish . . . and for pollution abatement."[57] By defining beneficial use broadly, a state paves the way for establishing state-based instream flow rights for any potential water user, including the federal government. Thus, the first step for any federal agency is to determine if the definition of beneficial use includes the non-consumptive uses needed to protect federal interests.[58] If a particular state's definition of beneficial use does not contain a use that includes the purpose of the federal reservation, the inquiry for the federal land manager ends here. State law simply does not provide for the type of right that will allow the purposes for which the federal land was set aside to be achieved. At this point, the manager may want to investigate other sources of state law or turn to mechanisms available under federal law to ensure that federal purposes are achieved.
Even today, in some states instream flow remains questionable under state law.[59] In New Mexico for example, the state water code does not recognize instream flow as a beneficial use and defines beneficial use to include only irrigation, mining, manufacturing, and possibly fishing and recreation.[60] However, in 1998, the New Mexico Attorney General, Tom Udall, issued an opinion concluding that existing consumptive uses could be transferred to instream flow based on New Mexico common law.[61] Though the attorney general's opinion moves in the direction of promoting instream flow under New Mexico law, that state has recognized very few instream rights. Similarly, North Dakota law does not clearly state whether instream flow is a beneficial use. In North Dakota, beneficial use is defined as the "use of water for a purpose consistent with the best interests of the people of the state."[62] Under this definition, the state administrative agency is given considerable discretion to determine if a particular non-consumptive use is a beneficial use. For the federal land manager, the risks are higher when a state has not yet fully interpreted or developed its instream flow provisions. In states where the existence and scope of instream flow is questionable, or under debate, the federal manager may want to consider other sources of authority to achieve federal purposes.
The definitional problem becomes more pronounced when particular uses are at issue. For example, many state definitions include protecting fish and wildlife, but may not include protecting or maintaining scenic or recreational uses.[63] Definitions of beneficial use rarely include or can be interpreted to include general ecosystem needs for water. Rather, the instream flow right is related to a single type of species such as fish, or more specific categories of uses such as wildlife protection. The preservation of the natural hydrograph to preserve the processes by which a river exists and persists does not technically fall within the definition of beneficial use.[64] Similar challenges arise under state law definitions of beneficial use for wilderness preservation, maintaining wetland or riparian vegetation, or channel maintenance--all purposes for which various federal lands have been set aside.[65] The challenge, therefore, lies in matching the particular federal purpose with each state's particular definition of beneficial use. While the expansion of the definition of beneficial use in the Western States has been promising, the details of which particular uses count, remain problematic for many federal land mangers.
2. The Diversion Requirement
Even if a water use is defined as beneficial in some jurisdictions an actual diversion is required to establish a water right. Because instream flow by its very nature lacks an actual water diversion, the traditional diversion requirement provides another definitional limitation.[66] While some states have dispensed with this requirement,[67] others have retained or left unclear the need for a physical diversion.For example, in 2000 the Idaho Supreme Court denied an instream flow claim for Minidoka National Wildlife Refuge asserted under state law for the protection of wildlife habitat, stating that Idaho law "generally requires an actual diversion and beneficial use for the existence of a valid water right."[68] In Colorado, state law recognizes an instream flow right for recreational purposes.[69] The state water court in granting recreational instream flow addressed the diversion requirement under Colorado law by categorizing the right as a "recreational in-channel diversion."[70] Interestingly, the recreational instream channel diversions are expressly unavailable under state law to federal entities.[71] Thus, state law may define beneficial use in a way that incorporates fish and wildlife habitat or other uses that evoke non-consumptive uses, but if a diversion is still required, then an instream flow right is impossible to achieve.
Another example where the question of diversion arose involves the U.S. Forest Service and a state-based water right for Cherry Creek in the Tonto National Forest.[72] The Arizona Court of Appeals recently upheld a decision by the Arizona Water Resources Department granting a state-based instream flow right to waters in Cherry Creek.[73] Phelps Dodge Corporation had challenged the agency's determination arguing, among other things, that a diversion was required to perfect a water right under Arizona's prior appropriation code.[74] The court ultimately held that it was not necessary to divert water to perfect an instream right under Arizona law given the Arizona legislature's designation of fish, wildlife and recreation as beneficial use.[75] In addition, the court concluded that instream flow rights can be held in Arizona by non-state entities like FS.[76] The time and energy spent on the question of whether a diversion is required, even in a state where instream flow is defined broadly, may make federal land managers hesitant to rely solely on state law.
3. Standards for Establishing Instream Flow Rights
Another definitional hurdle involves the standards under state law for establishing an instream flow right. The state's standard for setting the volume of the instream flow may differ from the amount necessary to achieve the federal purpose. Under Colorado's instream flow statute, for example, water can be appropriated for instream use to the extent necessary "to preserve the natural environment to a reasonable degree."[77] For Black Canyon of the Gunnison National Park, the minimum amount to meet the federal purpose of preserving the "spectacular gorges and additional features of scenic, scientific, and educational interest"[78] is arguably greater than what can be allowed under Colorado's statute. The amount of water that would protect the environment of the canyon to a reasonable degree may be less than the amount of water that would preserve specific characteristics of the canyon for future generations. Thus, the standards for establishing instream rights under state law are distinct from the standards and considerations an agency is obligated to use pursuant to its enabling legislation. To achieve their purposes, federal agencies may need to secure water rights for uses such as scenic or scientific integrity, channel maintenance, aesthetics, and preservation of riparian corridor. Often these uses fall outside the definition of beneficial use under state law.[79]
4.Non-consumptive Use and Groundwater
Finally, in many western states it is unclear whether the beneficial uses defined for surface water apply to groundwater resources. As a result, the availability of a non-consumptive right to protect the in place use of groundwater can be problematic.[80] Under Colorado law, instream flow provisions relate only to surface water and sources of surface water.[81] At Great Sand Dunes National Park in Colorado, this limitation under state law served, at least partially, as the motivation to secure water rights for the park under substantive federal law.
In Oregon, the definition of instream flow includes water within the natural stream channel or lake bed or place where water naturally flows or occurs.[82] Technically, this definition could be read to include water naturally occurring as a groundwater source. However, groundwater is managed separately.[83] The management structure may be interpreted to preclude application of the instream flow provisions to groundwater.[84] By contrast, the state engineer in Nevada recognized the role that groundwater levels play in the maintenance of spring flows on the surface. At Moapa National Wildlife Refuge, the state engineer granted the FWS a water right to maintain surface flows from springs and issued an order to monitor groundwater pumping that may impact those surface flows.[85] To the extent a federal land manager seeks to protect in-situ groundwater use, the manager needs to fully understand the extent to which state instream flow programs extend to groundwater sources.
B. Structural Limitations
In the last several decades, western states addressed many of the definitional limitations for establishing instream flow by modifying state water codes and administrative rules to include various non-consumptive uses in the definition of beneficial use. Too often, however, even in states where instream flow is recognized as a beneficial use, structural limitations to instream flow rights exist. These structural limitations include priority dates, mechanisms for converting diversionary rights to instream flow, and perhaps, most importantly, control and enforcement of instream flow rights.[86]
These structural limitations are easy to see in several representative state instream flow programs. In comparing the state programs below, consider specifically how a federal land manager might use state law to protect instream flow for a particular federal reservation.
1. States Where Federal Agency Cannot Hold Instream Flow Rights
The first structural limitation involves states where a federal agency simply is not allowed to hold an instream flow right. States with this kind of structure to their instream flow program include Oregon, Washington, Colorado, and Idaho, among others. While these states share a common structural limitation, the details of each states instream flow program are unique. As a result, a federal agency that manages lands throughout the West must become familiar with each states' water law provisions.
a. Oregon
Oregon currently has three primary mechanisms for protecting non-consumptive water use.[87] First, under the Instream Water Rights Act of 1987,[88] the Oregon legislature recognized instream flow as a beneficial use and minimum flow standards throughout the state were converted to instream water rights.[89] In addition, certain state agencies can recommend and in some instances apply for new instream flow rights.[90] Second, the Oregon Water Resources Department operates a purchase, lease or donation program for instream flow rights.[91] Under this program an individual can acquire an existing water right and convert it to an instream right. However, once the right is converted to non-consumptive use, the Oregon Water Resources Department holds the right.[92] The Oregon Water Trust, a non-profit organization, facilitates these transactions,[93] including Oregon's water leasing provisions which allow short term or permanent leases for a transfer to an accepted public use.[94] Water users can defend a claim of abandonment for non-use with a short term or permanent lease agreement.[95] Finally, Oregon has a Conserved Water Program[96] where water users can submit a water conservation plan to the Oregon Water Resources Commission. Water users get to retain up to seventy-five percent and no less than twenty-five percent of what is saved for additional uses.[97] The retained conserved water and the water dedicate for instream use receive priority dates either the same as the original right or one minute junior. [98] In Oregon, a federal agency can hold and exercise a traditional diversionary right to water for a broad range of uses including fish and wildlife.[99] Under Oregon's existing system for non-consumptive water rights, a federal agency cannot own or hold an instream flow right; only the state can hold instream rights.[100] Thus, for a unit of the park system, refuge system, a national forest, or recreation area for which non-consumptive water rights are necessary to carry out federal purposes, those rights are not available to the federal government under Oregon state law.
b. Washington
The 1971 Water Resources Act[101] authorizes the Washington State Ecology Department to establish minimum base flows at the request of the State Fish and Wildlife Agency or on the Department's own initiative.[102] These flows are established through an administrative rulemaking process with public notice and comment.[103] Under these provisions, a stream can be closed to further appropriation when the minimum levels are reached.[104] New permits are also conditioned to require the diversion to cease when flows fall below an established minimum base flow.[105] The state administers these minimum instream flow designations based on the date of establishment, not the original priority date of the water rights.[106]
Washington also created a trust water rights program in 1981 which allows for the temporary or permanent transfer of water rights to the state for instream flow.[107] In addition, under Washington's trust program, water rights that are otherwise subject to relinquishment under the state's waste provisions can be managed through the trust water rights program.[108] The state also administers the water leasing and water banking programs through the trust water program.[109] Leases may be short term or permanent, but must be transferred to an accepted public use.[110] Water rights placed in a temporary lease program are protected from claims of abandonment or forfeiture under state law.[111] Like Oregon, Washington state law authorizes the state to hold a trust water right.[112]
c. Colorado
Similarly, Colorado recognizes instream flow as a beneficial use,[113] but provides that only the state, through the Colorado Water Conservation Board (CWCB) can hold and exercise instream rights.[114] The recognition of recreational in-channel diversions allows municipalities, counties water districts, sanitation districts and water conservation or conservancy districts to hold these functional instream flow rights. However, similar to Colorado's general instream flow provisions individuals, businesses, environmental organizations and the federal government are not listed as entities that can hold recreational in-channel diversions.[115]
d. Idaho
Idaho adopted its Minimum Stream Flow Act in 1978.[116] Under this act, the legislature established minimum stream flow requirements for portions of the Lemhi and Snake rivers while allowing the director of the Idaho Department of Water Resources (Director) to approve applications for minimum stream flows throughout the state that are required for fish and wildlife concerns, recreation, and aesthetics--as well as transportation and navigation.[117] The Idaho Water Resource Board (Board) is the only entity that may hold or apply to the Director for minimum instream flow appropriations.[118] While other interested parties--including private individuals and federal agencies--may request that the Board consider applying for an instream water right, those parties may not apply for the appropriation of a minimum stream flow in their own capacity.[119] The Director may approve an application for minimum stream flow only by determining that the instream use will not interfere with any senior water uses, that the instream use is in the public interest, that the appropriation is the minimum amount necessary for the proposed instream use, and that historical records indicate that the minimum stream flow can actually be maintained.[120] In addition to the Director's approval, the state legislature must approve all minimum stream flow appropriations.[121] When a minimum stream flow appropriation clears the administrative and legislative process, it receives a priority date corresponding to when the Director received the completed application.[122]
2. States Where a Federal Agency Can Hold an Instream Flow Right
In contrast to the state instream flow programs described above, several states allow the federal government to hold non-consumptive water rights under state law. These states include Nevada, Alaska, and Arizona, among others. From the perspective of the federal agency, these states represent real opportunities to use state law to achieve federal purposes. Both of the state programs described below represent significant progress in the last 20 years of instream flow protection. In addition to these programs, federal agencies can hold rights to varying degrees under similar provisions in Wyoming, Montana, and Nebraska. [123]
a. Nevada
Nevada does not explicitly allow instream uses of water within its statutory scheme.[124] Despite this, in 1988 the Nevada Supreme Court suggested that water rights may be perfected without actual diversion for certain beneficial uses.[125] In State v. Morros,[126] the Nevada Supreme Court heard a challenge to non-diversionary water rights granted by the Nevada state engineer to BLM for recreation, wildlife, and livestock watering purposes.[127] While the court acknowledged that applications for permits to appropriate water are supposed to include a description of the diversion point and necessary works,[128] the court held that appropriations were limited by their beneficial use and not by an absolute diversion requirement.[129] Potential non-diversionary beneficial uses include recreational purposes[130] as well as wildlife purposes that include establishing and maintaining wetlands, fisheries, and other wildlife habitats.[131] Nevada law, however, remains somewhat unclear since the water code still requires a description of the diversion point and necessary works in any application to appropriate water.[132]
b. Alaska
In 1980, the Alaska legislature enacted legislation granting any person, defined to include the federal government, the ability to secure an instream flow right for "(1) protection of fish and wildlife habitat, migration, and propagation; (2) recreation and park purposes; (3) navigation and transportation purposes; and (4) sanitary and water quality purposes."[133] Water rights secured under Alaska's statute must be in the public interest as determined by the Alaska Department of Natural Resources.[134] In addition, water rights granted under these provisions are reviewed every ten years to determine if they still meet the standard of need that must exist for the reservation.[135] Despite the promise of the Alaska statute for individuals and federal agencies, the legislature built in significant limitations. First, the statute and implementing regulations require layers of administrative review, including a ten year review of all established instream flow rights. Interestingly, the intensity of this review exceeds the review required for the standard consumptive right under Alaska law.[136] Second, the administrative regulations give the Department of Natural Resources the discretion, during a ten year review process, to revoke the instream flow right.[137]
3. Priority Dates for State Instream Rights versus Federal Reserved Rights
Even when a state's instream flow program allows the federal government to hold an instream flow right, other structural limitations arise. One of the most significant limitations involves the priority dates for instream flow rights.[138] In the western prior appropriation system, the mantra remains first in time, first in right. The first water user to put water to a defined beneficial use takes her water in its full quantity before later users have their water rights satisfied. Because instream flow is a newly defined use under the various state water codes, instream rights are invariably late in the priority system.[139] The details of priority dates point to one of the fundamental dilemmas for a federal agency when evaluating options under state law.[140]For a federal land manager the choice to pursue a state-based right rather than assert a federal reserved right highlights the difficulty of the priority dates for new instream flow rights. Under the federal reserved water rights doctrine, federal reservations are entitled to the minimum amount of unappropriated water available at the time of the reservation to meet the primary purposes of the withdrawal.[141] Because the amount of available unappropriated water in various basins in the West is severely limited, a 2006 priority date for a new state instream flow right is less likely to produce actual "wet water" than a water right with a priority date based on the date of reservation. Unless federal agencies seek state instream flow rights as soon as the reservation is made, the state-based right will always be junior to the federal reserved rights claim. Under these circumstances, a federal reserved water right with an earlier priority date will result in more consistent availability of "wet water" for the federal lands. Moreover, some western states have prioritized certain future uses over instream flow rights.[142] Some commentators have argued that federal agencies need not be concerned with who owns the water, but with how the water is used. [143] In terms of enforcement, however, the question of ownership becomes important. Without the ability to enforce a particular flow, particularly in a dry year, impacts whether a federal agency is able to carry out its federal purposes.
For federal lands that sit high in the headwaters of various basins, a junior priority date may be acceptable. With no senior users above the federal land, a junior right keeps water in the system as well as a senior right. In contrast, for federal lands at the downstream end with many senior users above, accepting a junior priority date often means significantly less water. The national wildlife refuge system, in particular, faces this dilemma because much of the land they manage is in the lower portions of a watershed. In fact, the FWS manages a number of refuges in the West that sit downstream from massive irrigation and reclamation projects, such as the Klamath Basin refuges in Oregon, Stillwater in Nevada, Deer Flat in Idaho, and Imperial and Havasu in Arizona.
4. Ownership and Enforcement of Instream Rights
For the federal land manager questions of ownership and enforcement present some of the toughest dilemmas. These structural constructs raise two fundamental issues. The first issues concerns whether a federal agency must hold or own the water right in order to carry out the federal purpose. The second issue involves whether a federal agency can enforce a state based water right if it does not own or hold that right.[144]
In Oregon, the Water Resources Department is responsible for holding and enforcing all instream flow rights.[145] Washington, Idaho, and Colorado all have similar requirements on the state ownership of instream flow rights.[146] In Oregon, although a federal agency can recommend an instream flow right to protect federal lands, if the state grants the right, it is held and enforced by the state agency.[147] Because the federal government would have no ownership or permittee rights, it is impossible for the agency to seek enforcement of the right unless an arrangement was made between the state and federal government. Left unable to enforce an instream flow, the federal agency risks exposure to claims of failing to carry out its duties to protect or achieve the particular purpose of the reservation. Federal ownership of the water right,[148] or at least federal authority over the interest in a water right, allows the federal agency to enforce the instream flow right whether through administrative or judicial proceedings.[149]
The relationship between ownership, control and enforcement is central to the recent decision on the water rights for Black Canyon of the Gunnison National Park where the district court viewed the ability to enforce a water right to preserve the canyon as central to the duty the National Park Service to manage that resource. The state of Colorado and the U.S. Department of the Interior entered into a settlement agreement regarding instream flows for the Black Canyon of the Gunnison National Park.[150] In 1933, President Hoover set aside and reserved Black Canyon near Montrose, Colorado. The purpose of the reservation was to preserve and protect the unique scenic, scientific, and educational features associated with the canyon.[151] To carry out the federal purpose associated with this national park unit, the NPS determined that instream flow was necessary, including peak flows, to maintain the hydrologic processes that formed the canyon and to preserve the canyon's scenic value.[152] Colorado law recognizes instream flow as a beneficial use but provides that only the CWCB can hold and enforce instream flow rights.[153] In 2001, the United States agreed to amend its claim for a federal reserved water right then pending in Water Division 4 in exchange for a state-based instream flow right to be held by the CWCB.[154] The claimed federal reserved right carried a priority date of 1933. The state instream flow right carries a priority date of 2003.[155]
In addition to the issues regarding priority dates, the settlement agreement also raised questions about how the state instream right would be enforced.[156] In response to concerns that the Park Service was giving up its ability to enforce the instream flow right, the parties entered into an enforcement agreement that allowed the federal agency, here the NPS, to enforce the instream right in a court of competent jurisdiction in the event that the CWCB did not. While this enforcement agreement represented a step toward solving one of the primary structural problems for federal agencies under state instream flow law, it raised several unresolved questions, including whether the state administrative agency has the authority under existing statutes to allow the federal government to enforce. The 2003 settlement agreement stated that the NPS "shall have authority to enforce and protect the instream flows consistent with state law should the CWCB fail to do so."[157] Under Colorado's existing statute the legislature has made clear that only the state agency can hold and enforce water rights.[158] Thus, the enforcement agreement may be inconsistent with state law, specifically the delegation of authority by the state legislature to the state administrative agency.
Moreover, in states where only state administrative bodies can hold and enforce water rights, like Colorado, statutes and rules frequently give considerable discretion to the state water agency to limit the exercise of instream flow rights under certain circumstances.[159] In most states, the state agencies that manage instream flow may chose, in the exercise of their discretion, to waive an instream flow right in a particular year. In some instances, the state agency can subordinate or extinguish state-based rights.[160] Thus, without an enforcement agreement or similar mechanism, state law may allow the state agency who holds the right, not the federal agency with the congressional mandate, to protect the land, to make the final decision to enforce the instream flow right. Under this scenario, the federal agency may be exposed to claims of failure to meet its statutory obligations to carry out federal purposes similar to the claims raised by the plaintiffs in the Black Canyon litigation. In the absence of some kind of enforcement mechanism the federal agency may be unable to ensure that water reaches federal land when necessary to achieve legitimate federal purposes.
The 2003 settlement agreement and accompanying enforcement agreement for the water rights at Black Canyon were challenged in federal court. Ultimately, the district court invalidated the settlement agreement finding that the Department of the Interior violated the National Environmental Policy Act, improperly delegated authority over park resources to the state, illegally relinquished a United States' property interest and acted in an arbitrary and capricious manner in entering into the settlement agreement. [161] In reaching his decision Judge Brimmer was particularly concerned with the very structural problems identified in this article, including the different priority dates and the availability of enforcement.[162] Moreover, the Court interprets the National Park Service's obligation to carry out the congressionally delineated purposes for Black Canyon very seriously and finds that the agency failed to uphold that obligation in the context of this settlement agreement.[163] The court recognizes that an unquantified federal reserved water right constitutes a property interest of the United States that vested when the reservation was made.[164] The district court's decision indicates the lines that federal agencies must be within when confronted with the structural limitations of state instream flow provisions.
Although federal agencies cannot hold instream rights in some states, other states have made significant advances. In Arizona, Alaska, Nevada, and Wyoming, to a limited degree, the United States can hold state-based instream flow rights. In August 2005, the Arizona Supreme Court upheld the decision of the Arizona Water Resources Department to permit an instream flow right to the FS for Cherry Creek in Tonto National Forest.[165] Another promising example involves the Clarks Fork River in Wyoming, designated as a Wild and Scenic River in 1990.[166] Here, the state allowed the FS to hold a uniquely created right called a "wild and scenic water right" under state law to avoid the use of federal mechanisms, such as the reserved water rights doctrine. The right was designed to protect the water associated with the Wild and Scenic designation.[167] This "wild and scenic water right" differed in several significant ways from a typical state instream flow right. Most notably, the right was not restricted to a minimum, or base flow, for fish. Rather, the state permitted a dynamic hydrograph that approximated the timing and quantity of the natural hydrograph.[168] This approach maintains the form and function of the stream channel and floodplain. Thus, it preserves the wild and scenic character of the river.
In both Alaska and Nevada federal agencies hold state established instream flow rights as any other water user does. In May of 1989, the BLM secured an instream flow right in Alaska for Beaver Creek, a national wild river in the White Mountains National Recreation Area.[169] The FWS holds water rights to maintain spring discharge levels under Nevada's water code.[170] Despite these promising examples, significant challenges lie ahead. While the establishment of these rights under state law represents an important step forward, the real test will be how the state responds when the federal agency seeks to enforce a state instream flow right.
C. Administrative Limitations
In some states, the water code provides definitional and structural mechanisms to protect federal interests, but questions arise in the administration of the instream flow program. Often the state lacks the funding, staff, or political will to establish and enforce instream flow rights.[171] For example, Alaska's state water code defines instream flow very broadly and allows for any person, including the federal government, to hold an instream flow right.[172] Rather than assert federal reserved water rights, the FWS took advantage of Alaska's instream flow statute. The FWS filed nearly 200 instream flow claims, primarily for lakes in the Arctic, Yukon Flats, and Kodiak National Wildlife refuges, to protect water resources as required by the Alaska National Interest Lands Conservation Act.[173] Despite these numerous filings for state instream flow rights, the state administrative agency responsible for processing permits has acted on only a small number of the total number of applications and only one of the federal government's applications.[174] The state has granted twenty-four instream flow rights, to the Alaska Department of Fish and Game.[175] The state of Alaska has granted one instream flow right to a federal agency--the BLM for Beaver Creek, discussed earlier.[176] The state has not yet taken final action on other pending applications from federal agencies, including the nearly 200 filed by FWS.[177] Many factors likely contribute to the delay, including lack of resources, lengthy administrative process, and a lack of urgency since these basins are not over-appropriated. Similar administrative challenges exist in other states. As of 2001, the FS had filed applications for water rights based on state law in Colorado, Idaho, New Mexico, Nevada, and Arizona. With the exception of a recent long-fought victory in Arizona, the states have not granted the FS those rights.[178]
Regardless of the rationale for the delay, this administrative hesitancy leaves the federal agency without an adequate mechanism under state law to protect federal interests. State law may allow for the federal government to hold rights, but also may allow the state agency to avoid granting federal rights by leaving the decision to the discretion of the state engineer other administrative decisionmaker. The state engineer or the director of water resources may be unwilling to exercise the available authorities in a manner that protects competing and controversial uses of water by federal agencies.[179] Until more is known about how these states will implement their instream flow programs, federal agencies should be cautious about relying solely on state law mechanisms.
Finally, once a federal agency establishes a water right under state law, the question becomes whether states have the capacity to enforce these state-based rights. For example, at Quivira National Wildlife Refuge (NWR) in Kansas, groundwater pumping affected established surface waters on the refuge.[180] FWS holds the water rights under Kansas state law.[181] In response to the impact of groundwater on surface rights, the state initiated a series of negotiations with water users in the basin. Ultimately, the state designated an intensive groundwater user control area in a nearby basin. As a result of these state actions the parties reached a series of voluntary agreements to protect the Quivira NWR water rights. The FWS is waiting to see whether this voluntary program will protect the FWS's senior state-based surface water right. If the voluntary program fails, the state will be in a position to enforce a federally held, state-based right against state water users. In the end as this example indicates, federal agencies must consider what remedies and forums are available if the state system fails to protect an established right on federal land.[182]
D. Political Vulnerabilities
Water, especially in the West, involves politics. Conflict persists and with diminishing freshwater supplies and increasing demand for water, conflict is likely to continue and intensify. Western states have taken significant steps toward protecting instream flow rights and yet, despite increasing acceptance, meaningful instream flow protection remains controversial and limited throughout the West.[183] Western states face controversy and criticism when internal state parties seek instream flow protection. The level of concern only increases when a federal agency seeks instream rights for environmental purposes that differ from the state's traditional notions of beneficial use. Even in a state where definitionally, structurally, and administratively the federal government can hold and enforce an instream flow right, in reality the federal government's state based instream flow rights face political vulnerabilities. These vulnerabilities fall into three main categories including (1) the future legislative and administrative prerogatives within the state; (2) chronic under funding of state instream flow programs; and (3) the impact of an elected judiciary on the enforcement of federally-held state instream flow rights.[184]
State instream flow programs fall within the state's legislative and administrative control and responsibility.[185] As a result, the state legislatures and administrative bodies are free to alter state law, make decisions about enforcement, and prioritize particular uses during times of emergency or drought.[186] State administrative agencies often view their jobs as the protection of senior state-based diversionary rights, not instream flow rights. In some instances, assertions of instream flow rights resulted in administrative and legislative attempts to change state water law to limit instream flow protections.
In Colorado, the Colorado Water Conservation Board (CWCB), the state entity that holds instream rights under Colorado law, administratively waived enforcement of an established instream flow right.[187] The Colorado Supreme Court held that the CWCB lacked authority to waive established instream flow rights.[188] In response, the Colorado State Legislature amended the instream flow statute to give the CWCB that discretion.[189] In addition to legislative changes in reaction to instream flow rights, the water code frequently gives the state agency responsible for administering the instream flow program considerable discretion.[190] Through the exercise of this discretion agencies can forego enforcement of an instream right in dry years or enforce based on administrative judgments about whether the right is necessary under the circumstances.[191] The Colorado legislature responded to a judicial decision to enforce an established instream flow right by changing the CWCB's authority to forego enforcement.[192] Though this situation did not involve federal rights, it illustrates the problems a federal agency faces when seeking to secure instream flow under state law.
In other states, there have been attempts to retroactively change state water law to address concerns of in-state water users. Changes to state law result in negative impacts to state-based rights held by the federal government. Traditionally, North Dakota determined priority based on when the water was actually diverted and put to beneficial use.[193] In 2001, the North Dakota legislature proposed a change to the requirements for establishing water right so that the initial planning stages of a diversion, not the diversion itself, would establish the priority date.[194]
In the context of a judicial determination that water rights for fish and wildlife required a diversion, a similar situation in Montana had the same effect.[195] Both federal and state agencies had purchased state-based diversionary water rights and had plans to convert them to the beneficial use of fish and wildlife as defined by state law.[196] Subsequently, the Montana courts ruled that a diversion was required for any pre-1973 water right, including those held for fish and wildlife purposes.[197] As a result, numerous rights held by federal agencies under state law were put at risk. Ultimately, the Montana Supreme Court reversed the lower court decision,[198] but this scenario demonstrates the risks for the federal land manager and for the taxpayer once federal funds are spent. The Montana Supreme Court ultimately held that no diversion was required to maintain a pre-1973 water right for fish and wildlife purposes.[199] Application of a contrary decision would have retroactively impacted a host of water rights held by the state and federal governments.
As water supplies grow increasingly scarce and economic pressures force states to adopt tighter water administration systems, legislatures will face increasing pressure to make cuts somewhere. Understandably, the pressure to diminish instream flow interests is far greater than the pressures to shut down diversionary water rights held by individual citizens, municipalities, irrigation districts, or water supply organizations within the state. The temptation may be greater if the instream right at stake is viewed as benefiting the distant federal government or constituencies outside the state's legislative concern and authority.
The risks associated with the political vulnerabilities are significant for a federal land manager particularly in the context of a general stream adjudication. Assume that a federal agency secures an instream flow right under a state water code. Based on this right, the agency determined it would forego the assertion of a federal reserved water right[200] in a state-initiated general adjudication.[201] Once the United States is joined, the federal government must assert all claims under state and federal law. Once the adjudication is final and a decree issues, the federal government may be precluded from asserting those rights at a later time.[202] After the decree is finalized, imagine that the state legislature decides to suspend the exercise of instream flow rights due to drought conditions in the state.[203] In this scenario, the federal agency may no longer be able assert and enforce its state-based right as it was defined under state law. Moreover, the assertion of any federal reserved water rights may be precluded.
In addition to changes to instream flow programs, state legislatures also control the purse strings. Many state instream flow programs remain chronically under funded by state legislatures.[204] As a result, any state-based water rights held by the federal government face constant threat from the state budgetary process. If the federal agency relies on the state to establish and enforce instream rights, but the state legislature never funds the program, the federal lands are caught in a state battle of budget priorities. This is not to say, however, that federal agencies do not experience the same budgetary problems at the national level. But, significant questions arise as to whether a state can use the internal budget process, where federal interests are not directly represented, to the disadvantage of federal agencies.
Finally, decisions to recognize instream flow that may have negative impacts on traditional water users within the state can have consequences for administrative decision makers and elected judges. The dynamic between positive instream flow rulings and the impact to the state decisionmaker played out in at least two western states. Elected state court judges, who have made decisions in favor of federal rights, have been subjected to the politicized nature of water rights. In at least two situations, state court judges have lost re-election after authoring decisions in favor of water rights for the federal government.[205] Both of these cases involved claims under federal law, not the assertion of state-based water rights. Perhaps water rights under state law for federal lands would fair better. Nonetheless, federal agencies must consider whether a state court judge facing re-election will recognize and, more importantly, enforce a state-based water right held by the federal government.
Given the potential consequences for state decisionmakers when federal rights are upheld, federal agencies must consider the risks of asserting state or federal water rights in state court unless required by the initiation of a general stream adjudication. The water rights for Deer Flat National Wildlife Refuge in Idaho provide an illustrative example of the consequences when federal rights are adjudicated in state courts. As discussed earlier, the state of Idaho only allows the state to hold a right after legislative approval.[206] The Deer Flat National Wildlife Refuge,[207] established by executive order in 1909, needed to secure instream flow to maintain a series of islands in the Snake River that serve as a refuge and breeding ground for migratory birds.[208] This series of islands holds particular value as migratory waterfowl habitat because the surrounding water provides isolation from predators during nesting and breeding season.[209] Thus, in order to carry out the federal purpose of maintaining the islands for migratory bird habitat, the FWS needed to secure a non-consumptive water right to keep water flowing around the islands. Based on the structure of Idaho state law, the FWS could not secure and hold a water right under state law to achieve the purposes at Deer Flat Refuge.[210] Consistent with FWS policy, the United States asserted a federal reserved water right on behalf of the refuge in the Snake River Basin Adjudication (SRBA). The SRBA court denied the federal right and the Idaho Supreme Court ultimately upheld that decision.[211] Because the federal government cannot hold rights under state law, federal law was the appropriate tool for achieving federal purposes at Deer Flat National Wildlife Refuge.[212] In the end, the political nature of water allocation in the West remains an important consideration for the federal land managing agency in making a determination about the use of state law mechanisms to protect instream flow.
VI. Recommendations
To fulfill our national interest in preserving Our federal parks, refuges, recreation areas, and forests for future generations, state and federal leaders must come to terms with protecting instream flow on federal land. Without water, these specially designated areas fail to achieve the purposes set forth by Congress. The lessons learned throughout the development of water law in the West remain pertinent today--a delicate balance exists between state and federal authorities and between consumptive and non-consumptive uses. Relationships between the state and federal government matter and facilitating a sense of trust and understanding is critical. The federal government needs to understand the position of the states in controlling and administering a water allocation system in each state. States need to appreciate that the federal land manager must make decisions that best meet the congressionally mandated purposes for the land. Because of the relationship between the federal and state governments over water, federal agencies are in a unique position to utilize either state or federal law or some combination of both in achieving their purposes. But, in the end the federal agencies are required to manage the land and waters to achieve their purposes. As professor Eric Freyfogle commented, "an effective strategy needs to recognize this political reality and somehow deal with it. Yet, there are ways of dealing with it that do not require the [federal government] to roll over and lie mute."[213]
This Article explores the devil in the details of state instream flow water rights for federal agencies. By examining specific areas where state law poses challenges for federal land and water protection, this Article intends to bring the perspective of the federal land manager to the discussion about the progress and setbacks of instream flow in the West. In summary, federal land managers face four categories of challenges under state law. First, in some instances, the state may not recognize a particular use as within the definition of beneficial use under state law. Second, even in states that define instream water rights broadly, the state may not allow the federal government to hold and enforce the water right. Third, in states that allow the federal government to hold and enforce an instream right, questions arise regarding administrative delay, state agency discretion and enforcement capacity within the state. Finally, political realities within the state may make it difficult to hold or enforce instream flow rights. In light of these challenges, this Article makes a five part recommendation for moving forward and achieving the appropriate balance between state control and federal purposes.
First, federal agencies are in a position to take the first step by developing revised policies that set out the relationship between state law and federal purposes. Clear guidance from the federal level will not only benefit the land manager who is trying to carry out the federal purposes on the ground, but will allow all parties to evaluate whether instream flow rights can be obtained and enforced under state law. The existing FWS policy provides a strong model. This policy directs managers to seek state-based water rights where those rights can achieve federal purposes. Where state law forecloses the achievement of federal purposes, the manager must turn to federal rights. These revised policies can also include criteria for evaluating state water law, mechanisms for interested parties to provide comments, standards for scientific input on quantifying instream flow, and methods for integrating water rights into the overall planning processes of the agencies. With regard to evaluating state water law, the policies can set criteria that address the scope, quantity, timing priority, duration, enforceability and permanence of water rights available under state law. These criteria would also be valuable because instream flow law varies from state to state and what may satisfy the federal criteria in one state may not in another. These criteria should be part of a policy that provides an opportunity for public comment and feedback. The adoption of specific policies might counteract the tendency for water rights decisions at the federal level to be made solely in the context of administrative discretion and often exercised under political pressure. By adopting an express policy, states may be more confident about federal agency motivations. In turn, this confidence may encourage states to implement stronger instream flow protection at the state level to avoid the assertion of federal rights.
Second, for their part, the western states need to demonstrate a commitment to protecting federal resources and need to eliminate provisions of state instream flow laws that function as limitations for the federal agencies. Without a firm commitment from the states to fix many of the challenges set forth in this Article, the prospects for federal resource protection under state law remain uncertain.[214] If states strengthen and modify instream flow programs to achieve federal purposes, the possibilities for federal agencies under state law become real and concrete. For too long, many states have advocated and pressured federal decision makers to seek water rights under state law rather than pursuing federal reserved water rights, without providing strong, meaningful, and enforceable mechanisms for protecting instream flow within their borders. In the absence of strong state instream flow laws, the pressure to use state law simply serves as a mechanism to keep federal lands from having any meaningful water rights. If states are serious about preferring state-based water rights over federal rights, then states must reform their own laws so that protecting federal purposes using state law is a viable option[215]
Third, until federal agencies update their policies and states reform their instream flow law, the federal government must maintain the ability to assert rights under federal law to achieve congressionally mandated purposes. Federal rights should not, and some would argue cannot, following the rationale set forth in High Country Citizens' Alliance v. Norton,[216] be relinquished or foreclosed by federal agencies until they achieve equivalent protection under state law. Many scholars have advocated for strong recognition and application of federal law mechanisms to secure water rights on federal lands and others have advocated for the elimination of these federal mechanisms.[217] This Article recommends that federal agencies seek, to the maximum extent available, water rights using the state system. When state water law, however, contains no mechanism for the federal agency to meet its mandate and fulfill its statutory obligation, then the federal agency must turn to federal law. Any policy or rule should make clear that federal mechanisms for securing water rights are still viable if state law solutions fall short of achieving federal purposes. Federal land managers must evaluate the use of their federal authority to assert and establish water rights to carry out their primary purposes. If state laws do not allow federal managers to meet their obligations, these managers must be able to fall back on the authorities available under federal law to assert and enforce water rights.[218] Without maintaining this dynamic between state and federal law, states have little incentive to adopt robust instream flow programs that recognize federal purposes and federal land managers may fail to meet their obligations to use existing authorities to achieve federal mandates. Until more is known about how state instream flow programs will be implemented and administered, federal agencies take a risk substituting potentially less protective and unenforceable state-based water rights.
A system of turning to state law first while preserving authority under federal law provides several positive results. Any express policy preference for state-based rights supports the states' efforts to administer the allocation of water within state borders. Federal recognition of the possibilities under state instream flow law encourages state legislatures and administrators to support and enhance mechanisms for instream flow protection under state law. A preference for state-based water rights, however, only works and creates the appropriate incentives when the federal mechanisms remain viable options. The incentives to protect federal interest using state law may shift if there is no threat that federal law can operate to replace state mechanisms. The long term application of state instream flow law may ultimately depend on the continued viability of the various federal mechanisms to protect non-consumptive uses.
Fourth, federal and state entities should continue to explore creative and innovative solutions that engage both state and federal law. In fact, many of the most impressive and innovative solution in the last several decades have come from "outside the box" of traditional thinking about water rights claims.[219] Federal agencies and interested parties, however, should carefully evaluate these creative solutions to ensure that protection of federal interests has not been compromised. The criteria set out in the revised water rights policy discussed above could be developed to help evaluate new approaches and innovative solutions. For example, while many have described the 2003 settlement and enforcement agreements between the state of Colorado and the Department of Interior, with regard to the water rights at Black Canyon of the Gunnison National Park, as the perfect solution to federal water rights,[220] others claimed that the agreement deprived Black Canyon of the Gunnison National Park of more senior, permanent water rights to preserve the historic, scientific, and scenic resources of the park. The federal district court agreed with these allegations and found the settlement to be invalid under various provisions of federal law.[221] The court based its decision, at least in part, on issues of priority and enforceability--two of the central problems identified in this Article for federal agencies. These are the very kinds of concerns that the agencies could address in revised water rights policies.
By contrast, the federal legislation addressing the water rights for Great Sand Dunes National Park serves as a good model for integrating federal and state law.[222] The Great Sand Dunes legislation required the federal agency to use the procedure of state water law, but the legislation set out the substance of the water right in federal law. Because state substantive law did not contain the necessary right to protect the sand dunes, Congress used federal law to define the scope and nature of the right. To establish the right, however, NPS is required to use the state administrative process. The claims are currently pending in the Colorado Water Court. If successful, the Great Sand Dunes legislation model may emerge as an appropriate resolution of the tension between state water law and federal purposes.
Fifth and finally, the federal public lands are managed and the waters are protected for the benefit of the public. States and federal agencies must take the public's role, including non-water rights holders' role, in water resource protection seriously because of its unique legal, biological, spiritual, cultural, and hydrologic status. Many water users, including boater, fishers, hunters, property owners, and others, lack specific water rights but maintain significant and legitimate interest in water allocation and instream flow protection. Federal and state agencies, legislatures, and courts need to carefully consider the role of the public in water rights adjudications and conflicts. All too often the resolution of water rights results in de facto basin management plans with impacts to all citizens, not just those who hold water rights. States can integrate the public by allowing non-water rights holders to participate in some form in general stream adjudications. Federal agencies can integrate the public by giving interested parties a voice, through the revised policy described above, in the process for determining mechanisms for protecting federal interests. Increasing public participation also impacts the political dynamics that can emerge as state and federal agencies exercise their respective discretionary authority over water rights. The level of accountability for discretionary decisions increases when non-governmental entities are involved in the decision-making process. More fully integrating the public in the debate over consumptive and non-consumptive uses of water may also lead to more lasting solutions that recognize the significance and vitality of our nation's flowing waters. As Professor Charles Wilkinson so beautifully articulated at this Symposium, there is "inspiration that we know rides in the rush of every freeflowing watercourse" and the progress that has been made is the result of "patient and committed citizens and professionals who know they are in it . . . for the long-term."[223]
* Assistant Professor and Director, Environmental and Natural Resources Law Program, University of Oregon School of Law. I would like to thank my colleagues in the water law field, Robert Anderson, Tim Mayer, Dar Crammond, Tom Annear, John Trawicki, Alan Palisoul, Warren Keogh, and Randall Bramer, for their comments and insights on the article. I also extend my thanks to my colleagues at the University of Oregon School of Law: Heather Brinton, Suzanne Rowe, Joan Malmud, Keith Aoki, Richard Hildreth and Mary Wood. I appreciate the superb research assistance of Austin Williams, Lindsey Gillham, Ben Miller, Christina Davis, and Virginia Ryan. I also want to thank the editors at Environmental Law. This article would not exist without the unfailing work of Jill Forcier. Finally, all my thanks to Brian Killingsworth.
[1] Steve T. Miano & Michael E. Crane, Eastern Water Law: Historical Perspectives and Emerging Trends, 18 Nat. Resources & the Env't, 14, 14 (2003); Jeremy Nathan Jungries, "Permit" Me Another Drink: A Proposal for Safeguarding the Water Rights of Federal Lands in the Regulated Riparian East, 29 Harv. Envtl. L. Rev. 369, 385 (2005).
[2] See Robert Glennon, Water Follies 210 (2002) (stating that a "complete misunderstanding of hydrology has been memorialized in many states").
[3] See Tom Annear, Quantifying Instream Flow Needs, 31 Water Report 16, 18-23 (Sept. 15, 2006) (continuing scientific progress aides quantifying flow needs, but does not solve instream flow controversies).
[4] Id. at 17.
[5]Tom Annear et al., Instream Flows for Riverine Resource Stewardship xvii (rev. ed. 2004).
[6]David M. Gillilan & Thomas C. Brown, Instream Flow Protection: Seeking a Balance in Western Water Use 113 (1997).
[7] See id. at 112 (describing how state legislatures have enacted instream flow protection measures in western states).
[8] The Bureau of Land Management (BLM) administers 261 million acres (one-eighth of the surface area of the United States). Considered a multiple use agency, BLM has traditionally focused on grazing and the development of timber and mineral resources, but also manages wilderness areas, wild and scenic rivers, conservation areas, watersheds, historic, and archeological sites. The United States Forest Service manages 155 national forests and 20 national grasslands, totaling over 193 million acres. The United States Fish and Wildlife Service administers more than 535 refuges and over 3,000 small waterfowl breeding areas, totaling over 96 million acres. Finally, the National Park Service manages 388 individual areas covering more than 84 million acres. These areas include national parks, monuments, battlefields, historic sites, lakeshores, recreation areas, and scenic rivers. See U.S. Bureau of Land Mgmt., Nat'l Landscape Conservation Sys., NLCS Summary Tables, http://www.blm.gov/nlcs/summary_tables.htm#outstanding (last visited Nov. 7, 2006); U.S. Forest Serv., Meet the Forest Service, http://www.fs.fed.us/aboutus/meetfs.shtml (last visited Nov. 7, 2006); U.S. Fish & Wildlife Serv., America's National Wildlife Refuges (2002), http://www.fws.gov/refuges/generalInterest/factSheets/FactSheetAmNationalWild.pdf (last visited Nov. 6, 2006); U.S. Nat'l Park Serv., NPS Overview (Oct. 17, 2006), http://www.nps.gov/pub-aff/refdesk/NPS_Overview.pdf (last visited Nov. 7, 2006).
[9] See generally Robert B. Keiter,Ecological Concepts, Legal Standards, and Public Land Law: An Analysis and Assessment, 44 Nat. Resources J. 943 (2004).
[10] Id.at 943-45.
[11] Jungries, supra note 1, at 370.
[12] See also, David Gillilan, Will There Be Water for National Forests?, 69 U. Colo. L. Rev. 533, 562 (1998) (noting that Alaska, Arizona, Montana, and Nevada are the only states that allow the federal government to hold instream rights). However, the role of federal regulatory authority through statutes like the Endangered Species Act and federal facilities operation through agencies like the Bureau of Reclamation and the Army Corps of Engineers, also raise tensions with state law.
[13] State control over waters originated under the equal footing doctrine which provides that the federal government held in trust for the states beds of navigable waters. Shively v. Bowlby, 152 U.S. 1, 49-50 (1894). Upon entering the Union, title for the beds of navigable waters passed to the individual states for the benefit and trust of the people of the state. Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892), aff'd, 154 U.S. 225 (1894). See also Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471, 489-90 (1970); Joseph D. Kearney & Thomas W. Merrill, The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central, 71 U. Chi. L. Rev. 799, 828 -829 (2004). The 1877 Desert Lands Act worked to encourage the use and appropriation of water, but did not clearly delineate the rights of federal holders as a matter of statutory interpretation. See Cal. Or. Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 157-58 (1935). In California Oregon Power Co., the Supreme Court held that states control their water resources and may usurp common law with statutory regimes. Id. at 163-64. This holding specifically addressed the rights of federal patent holders. See alsoJoseph L. Sax et al., Legal Control of Water Resources 69-70, 318-24 (2d ed. 1991) (discussing generally the English common law riparian system and the emergence of the Western appropriation system).
[14] United States v. California, 332 U.S. 19, 42-43 (1947) (holding that coastal tidelands remain in federal ownership), and reh'g denied, 332 U.S. 787 (1947), and opinion supplemented by, 332 U.S. 804 (1947), and petition denied, 334 U.S. 855 (1948). The first case to clearly apply the public trust principles to the overlying waters, as opposed to just the beds, involved the Mono Lake in California. See generally Nat'l Audubon Soc'y v. Super. Ct., 658 P.2d 709 (Cal. 1983) (holding that the public trust doctrine offered an independent basis for challenging the Los Angeles Department of Water and Power's diversion of streams flowing into Mono Lake); Michael C. Blumm & Thea Schwartz, Mono Lake and the Evolving Public Trust in Western Water, 37 Ariz. L. Rev. 701 (1995) (discussing the effect of National Audubon Society on the reallocation of Western water resources). For a complete discussion of the relationship between federal legislative power and state water law see Federal "Non-Reserved" Water Rights, 6 Op. Off. Legal Counsel 328 (1982).
[15] Typically, riparian states in the eastern United States determined water rights based on ownership of land along a watercourse and reasonable use of that water. Miano & Crane, supra note 1, at 14-15; Restatement (Second) of Torts § 850(A) (1979) (defining criteria for determining if a use is reasonable). Thus any riparian owner along a watercourse has the right to use a reasonable amount of water in conjunction with the other riparian owners. The increasingly common water disputes in the eastern United States typically focus on whether one use of water is reasonable when compared to another use. As a result, many eastern states have adopted water codes to control use, as opposed to relying solely on the common law. Joseph W. Dellapenna, The Importance of Getting Names Right: The Myth of Markets for Water, 25 Wm. & Mary Envtl. L. & Pol'y Rev. 317, 366 -67 (2000) (discussing the emergence of "regulated riparianism"). According to Dellapenna, a regulated riparian system of water law treats water as a species of public property as opposed to treating water as common or private property. Id. at 329. Under regulated riparianism, water cannot be withdrawn without a permit. Id. at 367. The result is that the rights of the water user are determined by whether the factors required to acquire a permit (namely reasonable use) are fulfilled and not the riparian nature of the use. Id.; cf. Robert E. Beck, The Regulated Riparian Model Water Code: Blueprint for Twenty First Century Water Management, 25 Wm. & Mary Envtl. L. & Pol'y Rev. 113 (2000) (describing seven factors to be considered in determining whether a use of water is reasonable under the regulated riparian system of water law).
[16]Alaska Stat. § 46.15.050(a) (2006); Ariz. Rev. Stat. Ann. § 45-151E (2006); Colo. Rev. Stat. § 37-92.301(3) (2005); Idaho Code Ann. § 42-106 (2006); Kan. Stat. Ann. § 82a-717a (2005); Mont. Code Ann. § 85-2-401(1) (2005); Nev. Rev. Stat. § 533.040(2) (2005); N.D. Cent. Code § 61-04-06.3 (2005); Or. Rev. Stat. § 537.120 (2005); S.D. Codified Laws § 46-5-7 (2005); Utah Code Ann. § 73-3-21 (2006); Wash. Rev. Code § 90.03.010 (2005); Wyo. Stat. Ann. § 41-4-317 (2005). See generallyDavid H. Getches, Water Law in a Nutshell 7 (3d ed. 1997) (listing states where the prior appropriation doctrine governs water rights).
[17] For an excellent discussion of the history of state and federal relationships in the context of adjudicating water rights, see generally John E. Thorson et al., Dividing Western Waters: A Century of Adjudicating Rivers and Streams, 8 U. Denv. Water L. Rev. 355 (2005).
[18] See United States v. New Mexico, 438 U.S. 696, 702 (1978) (holding that FS does not hold federal reserved water rights for fish, wildlife, and recreation under the Organic Administration Act of 1897, ch. 2, 30 Stat. 11, 34-36 (codified as amended at 16 U.S.C. §§ 473-82, 551 (2000)), but that water for these purposes should be acquired in the same manner as any other public or private appropriator). See generally Sally K. Fairfax & A. Dan Tarlock, No Water for the Woods: A Critical Analysis of United States v. New Mexico, 15 Idaho L. Rev. 509, 510 (1979) (analyzing the Supreme Court decision to withhold federal reserved water rights); Lois G. Witte, Still No Water for the Woods, Stream Notes (Stream Sys. Tech. Ctr., Fort Collins, Colo.), Apr. 2002, available at http://stream.fs.fed.us/news/streamnt/pdf/SN_4_02.pdf (explaining the problems FS has faced using state law to achieve national forest purposes); see also Federal "Non-Reserved" Water Rights, supra note 14, at 331 (discussing the Department of the Interior's theory that the federal government may use non-reserved water on federal lands without complying with state law).
[19] SeeW. Water Policy Review Advisory Comm'n, Water in the West: The Challenge for the Next Century 3-38, 3-39 (June 1998); see also John D. Leshy, Water Rights for New Federal Land Conservation Programs: A Turn-of-the-Century Evaluation, 4 U. Denv. Water L. Rev. 271, 283 (2001) (discussing states' strong aversion to recognizing the water rights necessary for federal conservation).
[20] See Gillilan, supra note 10, at 559-60; Witte, supra note 15, (detailing the state initiatives set forth in the amicus briefs for New Mexico for the protection of federal interests under state law); Todd A. Fisher, The Winters of our Discontent: Federal Reserved Water Rights in the Western States, 69 Cornell L. Rev. 1077, 1077-78, 1089-90 (1984) (discussing the conflicts between the federal reserved rights doctrine and the state system of prior appropriation).
[21]The federal reserved water rights doctrine, known as the Winters doctrine, was announced in the landmark case Winters v. United States, 207 U.S. 564 (1908). The doctrine was extended to non-Indian federal lands in Arizona v. California, 373 U.S. 546 (1963), modified, 376 U.S. 340 (1964), and modified, 383 U.S. 268 (1966), and modified, 466 U.S. 144 (1984), and modified, 530 U.S. 392 (2000), and modified, 531 U.S. 1 (2000).
[22]Winters, 207 U.S. at 577.
[23]See Arizona, 373 U.S. at 595 (holding that the federal government reserves water rights when it reserves land for particular purposes, while also upholding the Master's findings concerning the allocation of water to federal lands); Cappaert v. United States, 426 U.S. 128, 146-47 (1976), modified 455 F. Supp. 81 (D. Nev. 1978) (implying federal reserved water rights when upholding the federal government's claim to an amount of water in a limestone cavern in order to preserve a prehistoric species mentioned in the proclamation setting aside the land as national monument); New Mexico, 438 U.S. at 702 (holding that FS does not hold federal reserved water rights for fish, wildlife and recreation under the Organic Administration Act of 1897, but that water for these purposes should be acquired in the same manner as by any other public or private appropriator); see also D. Craig Bell & Norman K. Johnson, State Water Laws and Federal Water Uses: The History of Conflict, the Prospects for Accommodation, 21 Envtl. L. 1, 2-3 (1991) (summarizing that Western water planning, development, and management have traditionally been carried out under state law).
[24] After the Court's decision in United States v. New Mexico, 438 U.S. 696 (1978), the question arose of whether the federal government must use federal law to establish water rights for the primary purposes of the reservation. For the purposes of this Article, the author assumes that federal agencies can seek protection of primary purposes under state law if it is equivalent to rights available under federal law.
[25] National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee (2000). The National Wildlife Refuge System is unique in that it is the only network of federal lands managed with the specific goal of placing wildlife and their needs first. Id.
[26] Id. § 668dd (a)(3)(A).
[27] Id. § 668dd (a)(2) (emphasis added).
[28] Organic Administration Act of 1897, 16 U.S.C. § 475 (2000) (emphasis added).
[29] Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531 (2000); Witte, supra note 15, at 2 (describing the Organic Administration Act of 1897 and the Multiple-Use Sustained-Yield Act of 1960).
[30] Taylor Grazing Act,43 U.S.C. §§ 315-315o-1 (2000).
[31] Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785 (2000).
[32] Id. § 1701(a)(8) (emphasis added).
[33] 16 U.S.C. § 1 (2000) (emphasis added).
[34] Federal lands managed by the various branches of the armed services also have claims to water. This Article will not cover those claims, but they pose interesting issues of the use of state law to achieve federal purposes. See generally Michael J. Cianci, Jr., James F. Williams & Eric S. Binkley, The New National Defense Water Right--An Alternative to Federal Reserved Water Rights for Military Installations, 48 A.F. L. Rev. 159 (2000) (discussing Nevada's national defense water right as an alternative to the traditional federal reserved water rights doctrine); Mark S. Graham, Army Water Rights and the Judge Advocate, Army Law., May 1992, at 64 (emphasizing consideration of state water law as it applies to military installations).
[35] See also 2 Am. Jur. 2d Administrative Law §§ 223-226 (2006) (stating "it is generally held that administrative rules may not add to detract from, or modify the statute which they are intended to implement").
[36] The NPS manages the National Park System, including national monuments, wild and scenic rivers, national trails, and historic sites, pursuant to the National Park Service Organic Act and various other authorities. See 16 U.S.C. § 1 (2000) (The National Parks Service "shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations herein after specified"); Id. § 1271 (declaring "certain selected rivers . . . shall be preserved in free-flowing condition"); Paul Smyth, Conservation and Preservation of Federal Public Resources: A History, 17 Nat. Resources & Env't 77, 78 (Fall 2002) (discussing congressional enactment of the National Park Service Organic Act and the authority given to the NPS in general). The FWS manages the National Wildlife Refuge System pursuant to the National Wildlife Refuge System Administration Act, as amended, and various other authorities. 16 U.S.C. §§ 460k to 460k-4 (2000); Id. §§ 668dd-668ee; see Michael J. Brennan & Leah A. Kukowski, Managing the Wildlife Refuge System: Is Anything Compatible Anymore?, 20 Nat. Resources & Env't 51, 51-52 (Fall 2005) (discussing congressional enactment of the National Wildlife Refuge System Administration Act and the authority and discretion given to FWS in managing these lands). The National Forests are managed by the USFS pursuant to the Organic Administration Act of 1897 and the Multiple-Use Sustained-Yield Act of 1960. Act of June 4, 1897, ch. 2, 30 Stat. 11, 34-36 (codified as amended at 16 U.S.C. §§ 473-482, 551 (2000)); Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531 (2000). The Multiple-Use Sustained-Yield Act also governs BLM actions on the remaining unreserved public domain lands. Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528-531 (2000). In addition to these "organic authorities," each of these agencies also manages specific monuments, recreation areas, or other special designations pursuant to the specific enabling legislation or establishment documents associated with the designation.
[37] See generally Michael Asimow et al., State and Federal Administrative Law 6 (2d ed. 1998). For a full discussion of the binding/non-binding nature of agency policy statements on the agency, see Charles H. Koch, Policymaking By the Administrative Judiciary, 56 Ala. L. Rev. 693, 713-20 (2005); Peter L. Strauss, The Rulemaking Continuum, 41 Duke L.J. 1463, 1464-65 (1992); Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like--Should Federal Agencies Use Them to Bind the Public, 41 Duke L.J. 1311, 1355-56 (1992); Tom J. Boer, Does Confusion Reign at the Intersection of Environmental and Administrative Law?: Review of Interpretative Rules and Policy Statements Under Judicial Review Provisions Such as RCRA Section 7006(a)(1), 26 B.C. Envtl. Aff. L. Rev. 519, 529-31 (1999).
[38]U.S. Nat'l Park Serv., Management Policies 2001 § 4.6, at 39 (2000), available at http://www.nps.gov/refdesk/mp/Chapter4.pdf.
[39] Id. § 4.6.2, at 39 (emphasis added); see also id. § 1.4.7, at 13 available at http://www.nps.gov/refdesk/mp/chapter1.pdf (requirement to avoid impairment); id. § 1.5, at 13 (external threats to park resources).
[40]U.S. Fish & Wildlife Serv., Fish and Wildlife Service Manual ch. 403, at §§ 1-3 (1993), available at http://www.fws.gov/policy/manuals/.
[41] Id. § 1.3 (emphasis added); see also 50 C.F.R. § 35.12 (2005) (stating that these regulations do not constitute an express or implied claim or denial of exemption from state water laws on the part of the Department of the Interior).
[42]U.S. Fish & Wildlife Serv., supra note 40, at ch. 403, at § 3.1.
[43] Id.
[44]U.S. Forest Serv., Forest Service Manual § 2541.03 (1990), available at http://www.fs.fed.us/im/directives/fsm/2500/2540.
[45] Id. § 2541.03(1).
[46] Id. § 2541.03(2) (emphasis added).
[47]U.S. Dep't of the Interior, Bureau of Land Management Manual Transmittal Sheet 7250 - Water Rights § 7250 (1984), available at http://www.blm.gov/nstc/WaterLaws/pdf/BLMWaterRightsPolicy.pdf.
[48] Id. § 7250.04 (emphasis added).
[49] Id. § 7250(1)-(2).
[50] Under state water law in the West, there is typically a distinction between diversionary/consumptive water use and non-diversionary/non-consumptive, or instream flow, use. 2 Owen L. Anderson et al., Waters and Water Rights § 12.02(c)(1) (Robert E. Beck ed., repl. vol. 2001).Instream or non-consumptive water rights are generally asserted to provide that sufficient water remains in a stream, lake, or waterway to preserve the ecological and biological systems, to protect fish populations, or to provide for recreational opportunities. Id. § 13.05(a). While federal agencies often seek traditional diversionary rights, the tension between the federal and state government usually arises when the federal agencies are seeking non-diversionary rights, or instream, non-consumptive water rights to carry out particular federal purposes and the purposes or mechanisms for which a state may allow instream uses is incongruous with the federal purpose.
[51]Ala. Const. art. VIII, § 13; Ariz. Const. art. XVII, § 2; Cal. Const. art. X, § 5; Colo. Const. art. XVI, § 5; Idaho Const. art. 15, § 1-3; Mont. Const. art. IX, § 3; N.D. Const. art. XI, §3; Neb. Const. art. XV, §§ 5-6; N.M Const. art. XVI, §§ 1-3; Or. Const. art. XI-D, § 1; Tex. Const. art. XVI, § 59(a); Utah Const. art. XVII, § 1; Wash. Const. art. XXI, §1; Wyo. Stat. Ann. § 97-8-001 (2005). Cf.Utah Const. art. XX, § 1 (public trust limited to land including the beds of navigable waterways). In several states the recognition of public ownership is found in the state water code. See Kan. Stat. Ann. § 82a-702 (2005); Nev. Rev. Stat. § 533.025 (2005); S.D. Codified Laws § 46-1-1 (2006).
[52] See Eric T. Freyfogle, Repairing the Waters of the National Parks: Notes on a Long-Term Strategy, 74 Denv. U. L. Rev. 815, 834 (1997).
[53] Steven J. Shupe, Keeping the Waters Flowing: Stream Flow Protection Programs, Strategies and Issues in the West, in Instream Flow Protection in the West 1, 4, (Lawrence J. MacDonnell et al. eds., 1989).
[54] Robert E. Beck et al., Elements of Prior Appropriation, in 2 Waters and Water Rights § 12.02(c)(2) (Robert E. Beck ed., 1991); Gillilan & Brown, supra note 4, at 31-32; Getches, supra note 14, at 75-76, 97-100, 118-29.
[55]Gillilan & Brown,supra note 4, at 31.
[56] Shupe, supra note 50, at 4.
[57]Or. Rev. Stat. § 536.300(1) (2005).
[58] In addition to the expansion of the definition of beneficial use, there are several mechanisms that states employ to address instream flow including minimum stream flow standards, state river programs that designate certain reaches of rivers as recreational or wild and scenic, public interest standards under existing administrative laws, instream flow water rights, conservation/waste prevention programs, water leasing/banking/transfer programs, and mechanisms for private agreements including modified operations for state and federal water projects. Or. Rev. Stat. §§ 390.805-390.925, 536.235, 537.332-537.360, 537.455-537.500, 537.348 (2005); Or. Admin. R. 690-076-0005 to 690-076-0035, 690-033-0000 to 690-033-0340 (2006); Wash. Rev. Code § 90.54 (Water Resources Act of 1971); id.§§ 90.42.030, 90.42.080(8)-90.42.100 (2006); Gillilan & Brown, supra note 4, at 138-45, 147-48, 157-64.
[59] Timothy J. De Young, New Mexico, in 6 Waters and Water Rights 831, 832 (Robert E. Beck ed., 1991); Gillilan & Brown, supra note 4, at 112, 116-17.
[60] State ex rel. State Game Comm'n v. Red River Valley Co., 182 P.2d 421, 434 (N.M. 1945).
[61] 98-01 Op. N.M. Att'y Gen. 11 (1998) (limiting analysis to cha