Volume 36, Issue 4

SYMPOSIUM INTRODUCTION

Western Instream Flows: Fifty Years of Progress and Setbacks

Courtney Watts, Symposium Editor

SYMPOSIUM ESSAY

The First Half Century of Western Water Reform: Have We Kept Faith with the Rivers of the West?

Charles Wilkinson

The role of water advocates in protecting instream flows has been shaped as much by the attitudes of the public and policymakers as by the events in water law history and development in the West. This Essay explores some of the challenges facing river restoration efforts—including public understanding of both water law and the complexity of watersheds—as well as potential areas of flexibility and opportunity in the future of river protection and restoration. The Essay provides both lighthearted anecdotes and serious motivation for anyone interested in protecting the waters of the West.

SYMPOSIUM ARTICLES

Sometimes a Great Notion: Oregon's Instream Flow Experiments

Janet Neuman, Anne Squier, & Gail Achterman

Throughout the State’s history, Oregon has taken initiative to protect instream flows, ultimately giving explicit recognition of instream water rights in 1987. Though not always successful, those measures have recently begun to achieve their goal of protecting and restoring Oregon’s waters. This Article examines the history of Oregon’s attempts to protect instream flows, and how the most successful measures have been adopted by other States to rejuvenate their rivers, as well.

The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled

Michael C. Blumm, David H. Becker, & Joshua D. Smith

This Article reviews the effect of the McCarran Amendment, which the Supreme Court has interpreted as subjecting tribal reserved water rights to state court adjudications. By examining water right adjudications involving the Klamath, Wind, Yakima, Gila and Snake Rivers, as well as Pyramid Lake, the Article chronicles the new legal principles fashioned by state courts to limit or diminish tribal water rights. The Article concludes that as a result of the McCarran Amendment Era adjudications, tribes have been forced to pursue extrajudicial means of restoring the streamflows reserved for them by their treaties.

Perspectives from the Field: A Review of Western Instream Flow Issues and Recommendations for a New Water Future

Charlton H. Bonham

This Article examines instream flow issues at a state and regional scale, and recommends dialogue, regulatory certainty, promotion of physical solutions, and bold action as the impetus for a new Western instream flow paradigm. The Article concludes that the burden of implementing these solutions rests on stakeholders at a regional scale.

The Use of State Instream Flow Laws for Federal Lands: Respecting State Control While Meeting Federal Purposes

Adell Louise Amos

This Article examines the relationship between the four major federal land-managing agencies—the National Park Service, the United States Fish and Wildlife Service, the United States Forest Service, and the Bureau of Land Management—and state water law. It concludes with a five-part recommendation for finding a balance in the tension between the state and federal governments over water rights for federal lands.

"Adequate Progress," or Rivers Left Behind? Developments in Colorado and Wyoming Instream Flow Laws Since 2000

Reed D. Benson

Colorado and Wyoming have much in common in regard to water supply and water use, and both states have followed the western states' traditional approach in their instream flow laws. This traditional approach, however, has serious practical shortcomings in restoring and protecting instream flows. This Article asks whether Colorado and Wyoming have made "adequate progress" since 2000 in addressing these shortcomings in their instream flow laws. For one of these states, the answer is clear: Wyoming has made no progress on its instream flow laws in recent years. Colorado, by contrast, has clearly made progress in strengthening its laws—especially as to recreational in-channel water rights for local governments—but it is hard to call much of this progress "adequate" in practice. The Article concludes by suggesting two areas where both states could improve their programs for restoring flows in depleted streams.

Instream Flow Protection and Restoration: Setting a New Compass Point

Ruth Mathews

This Aritcle summarizes the results from a survey of state instream flow programs commissioned by The Nature Conservancy are summarized. By comparing the status of current instream flow protection and restoration activities with the goal of ensuring the long-term maintenance of healthy river, floodplain and estuarine ecosystems and the native species they support, the areas in most need of change are highlighted. The survey results provide direction for the community concerned with instream flow protection and restoration and recommendations for meeting this goal are presented.

ARTICLE

ESA Reductions in Reclamation of Water Contract Deliveries: A Fifth Amendment Taking of Property?

Douglas L. Grant

Professor Grant analyzes two recent United States Court of Federal Claims cases that gave different answers to the question posed in the title of this Article. He argues that water users supplied by the Bureau of Reclamation will often have Fifth Amendment property rights, and he explains why Supreme Court takings jurisprudence leaves uncertainty about whether reduced deliveries to water users are per se physical takings. He also explores ramifications of the rule that there can be no governmental taking of property if an owner’s title was always subject to a preexisting limitation that authorized the governmental action affecting the property.

COMMENTS

At the Confluence: Oregon’s Instream Water Rights Law in Theory and Practice

Robert David Pilz

This Comment explores impediments to streamflow protection raised by the prohibition against legal injury to others’ water rights. By illuminating the practical, regulatory, and legal parameters of injury analysis and superimposing this framework on the realities of Oregon’s administrative and legal regulation of water distribution, this Comment seeks to assist parties in navigating the complexities of instream water right transfers.

The Row on the Ruby: State Management of Public Trust Resources, the Right to Exclude, and the Future of Recreational Stream Access in Montana

Sarah K. Stauffer

In this Comment, Ms. Stauffer highlights the problems associated with recreational stream access in Montana and examines a range of potential solutions. The Comment argues that the state has an affirmative duty to provide for reasonable access to the state’s streams because access is necessary for the public’s enjoyment of its water ownership.