QUANTIFICATION OF INSTREAM FLOW NEEDS OF A WILD AND SCENIC RIVER FOR WATER RIGHTS LITIGATION1

ABSTRACT: The lower 4 miles of the Red River, a tributary of the Rio Grande in northern New Mexico, was designated as one of the “instant” components of the National Wild and Scenic River System in 1968. The Bureau of Land Management (BLM), as the managing agency of the wild and scenic river, was a participant in a general water rights adjudication of the Red River stream system. The BLM sought a federal reserved water right and asserted a claim to the instream flows necessary to protect and maintain the values of the river. Instream flows are not recognized under New Mexico water law. Instream flow requirements were determined by several methods to quantify the claims made by the United States for a federal reserved water right under the Wild and Scenic Rivers Act. The scenic (aesthetic), recreational, and fish and wildlife values are the purposes for which instream flow requirements were claimed. Since water quality is related to these values, instream flows for waste transport and protection of water quality were also included in the claim. The U.S. Fish and Wildlife Service's Instream Flow Incremental Methodology was used to quantify the relationship between various flow regimes and fish habitat. Experience in this litigation indicates the importance of using state-of-the-art methodologies in quantifying instream flow claims. The incremental methodology held up well under technical and legal scrutiny and is an example of the latest methodology that was applied successfully in an adjudication. On February 23, 1984, the parties involved in the adjudication entered a precedential stipulation recognizing a federal reserved right to instream flows for the Red River component of the National Wild and Scenic River System.     

ESTIMATING THE PUBLIC'S VALUES FOR INSTREAM FLOW: ECONOMIC TECHNIQUES AND DOLLAR VALUES1

ABSTRACT: Sound water resource management requires comparison of benefits and costs. Many of the perceived benefits of water relate to providing instream flow for recreation and endangered fish. These uses have value but no prices to guide resource allocation. Techniques to estimate the dollar values of environmental benefits are presented and illustrated with several case studies. The results of the case studies show that emphasis on minimum instream flow allocates far less than the economically optimum amount of water to instream uses. Studies in Idaho demonstrated that optimum flows that balance benefits and costs can be ten times greater than minimum flows. The economic benefits of preserving public trust resources outweighed the replacement cost of water and power by a factor of fifty in California. While it is important to incorporate public preferences in water resource management, these economic survey techniques provide water managers with information not just on preference but how much the public is willing to pay for as well. This facilitates comparison of the public costs and benefits of instream flows.     

ECONOMIC COSTS AND BENEFITS OF INSTREAM FLOW PROTECTION FOR ENDANGERED SPECIES IN AN INTERNATIONAL BASIN1

ABSTRACT: The U.S. Endangered Species Act (ESA) restricts federal agencies from carrying out actions that jeopardize the continued existence of any endangered species. The U.S. Supreme Court has emphasized that the language of the ESA and its amendments permits few exceptions to the requirement to give endangered species the highest priority. This paper estimates economic costs associated with one measure for increasing instream flows to meet critical habitat requirements of the endangered Rio Grande silvery minnow. Impacts are derived from an integrated regional model of the hydrology, economics, and institutions of the upper Rio Grande Basin in Colorado, New Mexico, Texas, and Mexico. One proposal for providing minimum streamflows to protect the silvery minnow from extinction would provide guaranteed year round streamflows of at least 50 cubic feet per second in the San Acacia reach of the upper Rio Grande. These added flows can be accomplished through reduced surface diversions by New Mexico water users in dry years when flows would otherwise be reduced below the critical level required by the minnow. Based on a 44‐year simulation of future inflows to the basin, we find that some agricultural users suffer damages, but New Mexico water users as a whole do not incur damages from a policy that reduces stream depletions sufficiently to provide habitat for the minnow. The same policy actually benefits downstream users, producing average annual benefits of over $200,000 per year for west Texas agriculture, and over $1 million for El Paso municipal and industrial water users, respectively. Economic impacts of instream flow deliveries for the minnow are highest in drought years.     

COOPERATIVE MANAGEMENT OF THE DUNGENESS WATERSHED TO PROTECT SALMON IN WASHINGTON STATE1

ABSTRACT: Over the last decade, the Jamestown S'Klallam Tribe has formed partnerships with their neighboring county government, irrigation districts, property owners, and state and federal agencies in an effort to save the dwindling runs of Dungeness River salmon. Although considerable progress has been made to begin the recovery process, the watershed is included in recent listings of Pacific Northwest salmon under the Endangered Species Act. Under the coordination of an active watershed council, significant improvements have been made in water conservation and the protection of instream flows. Cooperation between the Tribe, irrigation districts and the Washington Department of Ecology resulted in a trust water rights agreement and the reduction of late summer water withdrawals by one‐third.     

MONTANA'S EXPERIENCE IN RESERVING YELLOWSTONE RIVER WATER FOR INSTREAM BENEFICIAL USES - LEGAL FRAMEWORK1

ABSTRACT: The Yellowstone River historically has produced an ample supply of high quality water which is widely used for irrigation, municipal and industrial purposes, recreation, and fish and wildlife. Recently, energy companies have attempted to obtain water rights in the Yellowstone basin for energy conversion facilities in coal-rich southeastern Montana. Existing users fear that energy diversions will impair their rights, preclude expansion of present beneficial users, degrade water quality, and adversely effect fish and aquatic life. In response to these concerns, the Montana Legislature enacted several laws to regulate water appropriations in the Yellowstone River basin, including means by which state and federal agencies could apply for reservations of water for future beneficial uses. Thereafter, both the Montana Fish and Game Commission and the State Water Quality Bureau formally requested relatively large instream flows to protect fish and wildlife and to maintain water quality. This paper describes Montana's experience through December of 1977 with the administration of water in the Yellowstone basin under these laws; emphasis is placed on the major requests for instream flows. The final resolution of the reservation applications, and the related ramifications, will be discussed in a future paper.     

Irrigation-Dependent Wetlands Versus Instream Flow Enhancement: Economics of Water Transfers from Agriculture to Wildlife Uses

Irrigated agriculture throughout western North America faces increasing pressure to transfer water to nonagricultural uses, including instream flows for fish and wildlife management. In an important case, increased instream flows are needed in Nebraskas Platte River for recovery of threatened and endangered fish and wildlife species. Irrigated agriculture in the Laramie Basin of southeast Wyoming is a potential water source for the effort to enhance instream flow. However, flood irrigation of hayfields in the Laramie Basin has created many wetlands, both ephemeral and permanent, over the last century. Attempting to increase Platte River instream flows by purchasing water rights or improving irrigation efficiency in the Laramie Basin would transform irrigated agriculture, causing a substantial fraction of the Laramie Basins wetlands to be lost. A creative solution is needed to prevent the sacrifice of one ecosystem on behalf of another. A rotating short-term water-leasing program is proposed. The program allows Laramie Basin producers to contribute to instream flows while continuing to support local wetlands. Permanent wetland desiccation is prevented and regional environmental water needs are met without impairing local ecological resources. Budget analysis is used to provide an initial cost estimate for acquiring water from agriculture through the short-term leasing program. The proposed approach is more expensive than traditional programs but allows contribution to instream flows without major wetland loss. Short-term leasing is a more efficient approach if benefits from wetlands exceed the difference in cost between the short-term lease program and programs that do not conserve wetlands.     

ASSESSING INSTREAM FLOWS AND RESERVOIR OPERATIONS ON AN EASTERN IDAHO RWER1

ABSTRACT: A methodology for assessing reservoir management was applied to the historical conflict between winter fish and wildilife flows below Island Park Reservoir on Henrys Fork of the Snake River and the fulfillment of storage water rights. The methodology consists of (1) identifying impacts of flow regulation, (2) quantifying relationships among variables affecting physical reservoir fill, and (3) assessing effects of these discharges on the fulfillment of water rights in the context of a larger system of interrelated reservoirs. Winter (storage season) flows are critical to management of fish and wildlife populations below Island Park Dam, but flow regulation has resulted in decreased winter discharge. Allowable winter flows are a function of inflow, length of storage season, reservoir content at the start of storage season, and potential for downstream capture of excess storage season water discharged at Island Park. Modeling results indicate that winter flows in the range of those recommended for fish and wildlife management are attainable during average years but not during years when initial reservoir content is low. The methodology was successful in quantifying information useful to decision makers in a variety of agencies and disciplines and could be applied to solve water management problems on other regulated river systems.     

FROM FLOW TO FISH TO DOLLARS: AN INTEGRATED APPROACH TO WATER ALLOCATION1

This paper details a case study of economic and natural system responses to alternative water management policies in the Cache La Poudre River basin, Colorado, 1980–1994. The case study is presented to highlight the value and application of a conceptual integration of economic, salmonid population, physical habitat, and water allocation models. Five alternative regimes, all intended to increase low winter flows, were investigated. Habitat enhancements created by alternative regimes were translated to population responses and economic benefits. Analysis concluded that instream flows cannot compete on the northern Colorado water rental market; cooperative agreements offer an economically feasible way to enhance instream flows; and establishing an instream flow program on the Cache La Poudre River mainstem is a potentially profitable opportunity. The alliance of models is a dynamic multidisciplinary tool for use in professional settings and offers valuable insight for decision-making processes involved in water management.     

Return to the River: Environmental Flow Policy in the United States and Canada1

Abstract: This paper provides an overview and summary of United States and Canadian federal, state, and provincial laws that offer some form of legal protection for environmental flows. Special attention is given to the new “second generation” law established in Texas and to ways western states are beginning to encourage transactions that help restore dewatered streams. Progress in the eastern states and some Canadian provinces to provide environmental flow protection is addressed. Based on this review, this paper presents recommended elements of a “model” environmental flow policy.     

SIMULATION AND DECISIONMAKING: THE PLATTE RIVER BASIN IN NEBRASKA1

Substantial conflict exists over water management and allocation in the Platte River Basin of Nebraska. An interdisciplinary computer simulation model, representing the water quantity, water quality, environmental, and economic dimensions of the conflict, was developed in order to analyze the tradeoffs among allocation scenarios. Most importantly, decisionmakers and interest groups were involved in model development. Simulation results for a base case and two scenarios are presented. One scenario favors protection of instream flow for wildlife; the other favors water diversions for agriculture. Impacts of the instream flow scenario, as measured by the amount of land irrigated, groundwater levels, the amount of wildlife habitat for cranes and catfish, and net agricultural benefits did not differ greatly from those of the base case. However, impacts of the diversion scenario were substantial. On the negative side, instream flows and wildlife habitat declined an average of 39 percent; while, on the positive side, groundwater levels and net agricultural benefits each increased 6 percent. The modeling process was successful insofar as it promoted an understanding among the highly diverse interest groups of the systems nature of the Basin. One agreement on a water diversion schedule among three of the parties has been reached, partly as a result of this process. More comprehensive compromises have not yet been forged. Our experience, however, indicates that modeling success at the policymaking level depends more on the extent to which the policymakers understand the model than it does on model sophistication.     

TREATING WATER INSTITUTIONS AS ENDOGENOUS VARIABLES: DEMONSTRATION OF A CONCEPTUAL MODEL1

ABSTRACT: Institutional innovation is central to many water resource problems. (In this context “institutions” refers to the laws and regulations governing water allocation and use.) Yet, typically, economic analyses treat institutions as exogenous and fixed. Unfortunately, this conventional assumption does not allow economists to address many modern problems. This paper develops an economic framework in which institutions are treated as endogenous. The model accounts for (1) factors that stimulate calls for formal institutional change, (2) the role of interest groups in policymaking, and (3) actual institutional change as it impacts choice domains and thus economic performance. The model is compared to a specific case of change in Colorado's water institutions, namely, instream water rights legislation in the 1970's. The empirical evidence is generally consistent with model hypotheses. The model promises to be useful to scholars and policymakers interested in institutional innovation.     

HYDROLOGIC AND ECONOMIC IMPACTS OF DROUGHT UNDER ALTERNATWE POLICY RESPONSES1

ABSTRACT: A severe sustained drought in the Colorado River Basin would cause economic damages throughout the Basin. An integrated hydrologic-economic-institutional model introduced here shows that consumptive water users in headwaters states are particularly vulnerable to very large shortfalls and hence large damages because their rights are effectively junior to downstream users. Chronic shortfalls to consumptive users relying on diversions in excess of rights under the Colorado River Compact are also possible. Nonconsumptive water uses (for hydropower and recreation) are severely affected during the worst drought years as instream flows are reduced and reservoirs are depleted. Damages to these uses exceeds those to consumptive uses, with the value of lost hydropower production the single largest economic impact of a severe sustained drought. Modeling of alternative policy responses to drought suggests three general policy approaches with particular promise for reducing damages. Consumptive use damages can be reduced by over 90 percent through reallocation from low to high valued uses and through reservoir storage strategies which minimize evaporation losses. Reservoir management to preserve minimum power pool levels for hydropower production (and to maintain reservoir recreation) may reduce damages to these nonconsumptive uses by over 30 percent, but it may increase consumptive use shortfalls.     

DEVELOPMENT OF A NONDEGRAIATION POLICY FOR HIGH QUALITY WATERS1

ABSTRACT: The development of a nondegradation policy for high quality waters is a complex and often controversial process. This paper discusses the development of a nondegradation policy for two components of the National Wild and Scenic Rivers System. Water quality in these reaches of the Delaware River is threatened by rapid growth and development and the cumulative impacts from numerous wastewater discharges and nonpoint sources of pollution. The Delaware River Basin Commission, with assistance from its member states and the National Park Service, conducted a highly public, six-year planning process to develop a nondegradation policy that protected existing water quality without impinging upon local and state economic development objectives. The resulting non-degradation policy includes such features as numeric definitions of existing water quality and measurable change; stringent point source requirements; nonpoint source requirements including watershed planning requirements; and other water quality management policies.     

DEVELOPMENT OF FEDERAL RESERVE RIGHTS1

ABSTRACT: The concept that has been termed “Indian Rights to Water” is one manifestation of the area of federal reserved rights that is a major concern of states in arid regions. The federal reserved rights are those that are reserved in fact or by implication in federal actions, acts, reservations, and treaties. Federal actions include such things as navigation improvement and flood control projects. The Federal Court System, since the Civil War has been promulgating, developing, and protecting federal reserved water rights. The development of those rights can be traced from early cases through the landmark cases such as U.S. v. Rio Grande and Irrigation Co. (1899); Winters v. U.S. (1908) with the origin of the Winters' Doctrine of Indian Rights; Federal Power Commission v. Oregon, commonly called the Pelton Dam Case (1955); Arizona v. California (1963); U.S. v. District Court for Eagle County (1971); to existing suits on surface water sources such as that on appeal in regard to reserved federal water rights on the Truckee River. It can be shown that the federal position has been consistent through all the years in that the federal rights have been protected, expanded, developed, and preserved in a more or less predictable manner.     

Buy Me a River: Purchasing Water Rights to Restore River Flows in the Western USA

In recent decades, public and private environmental entities have been purchasing or leasing water rights across the Western United States (U.S.) in efforts to restore river flows and aquatic ecosystems. The need to pay for flow restoration arises from the fact that state governments did not begin to reserve water for instream purposes until the 1970s, long after water rights had become over‐appropriated and flows were substantially depleted in most rivers. As a consequence, flow depletion has become the leading cause of fish endangerment in the U.S., including the imperilment of two‐thirds of all native fish species in the Colorado River system. This paper takes stock of the progress made in buying water for the environment, specifically by reviewing and analyzing more than 50 transactions executed by public and private entities and the sources of funding underpinning these transactions. We conclude that nongovernmental actors — such as environmental organizations and state water trusts — are integral to regional efforts to restore river flows; these nongovernmental actors executed more than two‐thirds of the transactions we documented. However, we also conclude that the long‐term success of these nongovernmental actors depends upon the availability of sustained public funding that enables them to build capacity and engage in the large number of transactions needed to restore flows across each state.     

CHARACTERIZATION OF HYDROLOGIC CONDITIONS TO SUPPORT PLATTE RIVER SPECIES RECOVERY EFFORTS1

ABSTRACT: Efforts are under way to recover habitat for several threatened and endangered species in and along the Platte River in central Nebraska. A proposed recovery program for these species requires a means of characterizing “wet” versus “normal” versus “dry” hydrologic conditions in order to set corresponding Platte River instream flow targets. Methods of characterizing hydrologic conditions in real time were investigated for this purpose. Initially, 10 watershed variables were identified as potentially valuable indicators of hydrologic conditions. Ultimately, six multiple linear regression equations were developed for six periods of the year using a subset of these variables expressed as frequencies of nonexceedence. The adequacy of these equations for characterizing conditions was assessed by evaluating their historic correlation to subsequent flow in the central Platte River (1947–1994). These equations explained 54 to 82 percent of variability in the observed flow exceedences in the validation datasets, depending upon the period of year evaluated. These equations will provide initial criteria for setting applicable flow targets to determine, in real time, whether water regulation projects associated with the species recovery effort can divert or store flows without conflicting with recovery objectives.     

THE CONTINUING EVOLUTION OF AN AUSTRALIAN WATER RESOURCES POLICY1

ABSTRACT: Australia's extremely limited water resources highlight the need for policy guidelines for management. During the 1970s, there was the gradual evolution of a national water resources policy, facilitated by a nationally agreed statement of objectives and culminating in a federal policy statement presented in 1979. However, the Australian constitution gives major responsibility for water resources to the states. Further, the federal policy statement seems to assume that each state has a water resources policy and that it accords with the nationally agreed objectives. This is not the case, and the practical management of Australia's water resources falls short of the principles set out in the policy document. The River Murray, the nation's major water resource, provides ample evidence of this fact. With very limited water resources, Australia urgently needs to reduce the disparity between principle and practice in their management.     

INSTREAM FLOW REQUIREMENTS IN THE POWDER RIVER COAL BASIN1

ABSTRACT: As coal resources are developed in the Northern Great Plains regions, new reservoirs are being considered to meet expanding water demands. The amount of water available for industrial diversion, however, could be limited by regulations that require minimum flow levels to be maintained downstream of the reservoir sites. Computer simulations of potential reservoirs were used to determine to what extent, if any, instream flow requirements might limit the ability of reservoirs to deliver industrial water supplies. Data on instream flow requirements, potential reservoir sites, and historic runoff were input for the simulation of the Powder River Region of Montana and Wyoming. Results of the simulations compared the maximum amount of water available for industrial diversion with and without requiring instream flow criteria.     

A CASE STUDY IN THE IMPLEMENTATION OF THE FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS1

ABSTRACT: A general model of the policy implementation process is utilized to facilitate a discussion of the way Section 208 of PL 92-500 is being carried out on an areawide basis. A study of four “208 areas” in the “New York-Philadelphia corridor” highlights the operation of several variables used in the model. The varying political and socioeconomic conditions in geographic areas which have similar water quality problems are leading to the evolution of vastly different implementing structures, or institutional arrangements. The analysis suggests that these differences may have important implications for the success of the program in each of these areas. A major underlying theme is that such problems are characteristic of the 208 process nationwide and reflect general difficulties associated with managing water quality in a federal system.