Taking Back Our Rivers

by Mark Squillace

Justice Holmes once noted that "a river is more than an amenity — it is a treasure." That is no doubt how many of us feel about our favorite streams. But for too long we have squandered these treasures, not because we consciously decided to do so, but rather because we failed to take those affirmative steps necessary to save them. Here in Wyoming, we still have some pretty nice streams. But almost all of them are in the upper reaches of our river basins, before substantial diversions reduce those streams to a fraction of their natural flows. It may be daunting to even think about reclaiming steam flows in the lower reaches of some of our river systems. But if we care enough about our rivers, we can make it happen.

Taking back our rivers does not require that we deny existing water users their reasonable needs — even assuming we might find some lawful way to do so (which we won’t). But it will require that we rethink the prior appropriation doctrine in a manner that recognizes the legitimate needs of the stream. For obvious political reasons, this will not be an easy task. But the prior appropriation doctrine does not itself pose insurmountable roadblocks to this approach. And if our streams really matter, we must make the effort.

The Prior Appropriation Doctrine

At the turn of the century, when prior appropriation was coming of age, little thought was given to the need to protect natural stream flows. If water was needed for agricultural or mining or domestic purposes, then allocations were freely made from whatever water was available.

However, most states, including Wyoming, recognize at least two significant limits on the right to use water. First, the water must be put to a "beneficial use." This means that the particular type of use (e.g., agricultural or domestic) must be appropriate, and that the amount of water used for that purpose must be reasonable; that is, not wasteful.  In addition to beneficial-use limits, most states, including Wyoming, provide that water allocations can be limited or denied in the public interest.

 Wyoming has never defined the term "public interest" and it seems to have had little effect on water allocation decisions. On the contrary, it has historically been thought that the allocation of water for consumptive uses was almost by definition in the public interest, and thus no further inquiry was necessary. The idea that the public interest might be used to deny a water right to protect instream flows has never seemed to be on the state’s radar screens.

Wyoming’s failure to consider the impact of water allocations on stream flows is perhaps most obvious from the state’s "surplus" and "excess" water laws. These statutes allow most agricultural users to take twice their original water allocation so long as sufficient water exists in the stream. Indeed, agricultural users are effectively given the right to divide all of the water that remains in a stream, even after the double allocations have been made. Water users are fond of noting that most of these admittedly excessive diversions eventually find their way back to the stream, often later in the irrigation season when water supplies are low. But it can hardly be denied that these diversions severely disrupt natural stream flows, and when they do eventually return to the stream they often pollute it with residual amounts of pesticides, herbicides and fertilizers.
Over the last couple of decades, most western states, including Wyoming, have come to recognize that instream flows embody important values that the state should protect. In 1986, following the first successful ballot initiative in Wyoming, the Wyoming Legislature enacted an instream flow law that allows stream segments to be designated following a recommendation by the state Game and Fish Department.

But the state law seems almost a grudging recognition of instream flow rights. Under Wyoming’s law, only the state Game and Fish Department can seek to protect instream flows. Furthermore, these rights may only be used to protect fish habitat, and then only for existing fisheries (unless the water is coming from a storage project). Also, unlike all other water rights holders, the Game and Fish Department cannot seek abandonment of more senior upstream water rights that have not been used for many years, and they cannot enforce minimum stream flows needed for the fishery unless they make an independent showing that the failure to enforce the right will damage the fishery. Indeed, by the time sufficient evidence can be gathered to support enforcement, substantial harm to the fishery may have already occurred.

Finally, the current instream flow law favors providing instream flows through storage projects rather than encouraging the preservation of natural stream flows. The statute goes so far as to suggest that natural stream flows may not be protected unless a determination is made that providing those flows through storage projects is not "feasible." Fortunately, the State Engineer has construed the statute to allow him discretion to designate natural stream flows even where a storage project might be possible. But the risk of a future legal challenge to this approach remains.

Prior Appropriation as if Stream Flows Mattered

First, we should define the terms "beneficial use" and "public interest." As suggested above, beneficial use was a concept that was developed largely to guard against wasteful water practices. What constitutes "waste," however, is not self-evident, and most states, including Wyoming, recognize that the determination of waste depends, in part at least, on competing needs for water. Put another way, water uses that might have been reasonable during an era when water was plentiful may no longer be reasonable given competing needs for water. If we are only willing to acknowledge that minimum stream flows are a competing water need then we will have taken a giant step toward recognizing that water uses that divert more water than is necessary out of the stream are wasteful and thus not a reasonable, beneficial use of the water. Significantly, redefining beneficial use will not require that we alter existing water rights. It only requires that we strictly enforce traditional, beneficial use principles. Thus, the simple process of defining beneficial use so that it plainly recognizes the competing needs of the stream environment has the potential for restoring significant natural stream flows to all parts of the State.

Redefining beneficial use might well offer a means for addressing excessive diversions by current users. But the "public interest" offers a vehicle for avoiding the problem in the first instance. If minimum stream flows necessary to protect natural stream environments were recognized as one of the public-interest values that must be considered when making initial water-allocation decisions, water rights could be denied or restricted so as to protect these minimum flows.

Second, we should amend the instream flow law to allow anyone to hold an instream flow right, and we should offer incentives to encourage existing water users to transfer all or part of their rights to instream flows. This could be done without adversely affecting any existing water users. And we should not restrict preservation of stream flows to maintaining or improving fisheries. Rivers are a treasure to us for many different reasons and the law should recognize the many aesthetic values that rivers provide. The law should also be changed to promote the preservation of natural stream flows. There is nothing wrong with managing stream flows from existing water projects to promote conservation, but we ought not encourage the development of new projects as an excuse for protecting instream flows. Natural stream environments can best be protected with natural stream flows. Finally, instream flow rights should be placed on a par with all other water rights. This means allowing the persons who hold instream flow rights to seek the abandonment of other water rights, and to enforce their water rights without having to meet difficult evidentiary burdens. Indeed, since the public is the beneficiary of instream flow rights, any interested member of the public should be allowed to seek the abandonment of unused water rights for the benefit of instream flows.

Third, we should deny agricultural users any future right to divert water beyond their vested rights. While this may include, at least for the time being, surplus and excess water rights, it need not include any more water. As noted above, the beneficial-use doctrine can potentially be used to bring agricultural users well below the amounts that they might otherwise expect under the surplus and excess water laws. But at least we should insist that something be left for our streams.
If we join together with a common plan, we can take back our rivers. This effort need not be carried out in a punitive way that tramples on the rights of existing users. Rather, it can be accomplished by limiting existing rights to the extent that is legally permissible, and using the prior appropriation doctrine to demand that the public interest in natural stream flows be protected. The prior appropriation doctrine often gets a bad rap from conservationists for failing to recognize the value of natural stream environments. But it doesn’t have to work that way. We can use the doctrine to bring back stream flows that have long been lost. Stream flows matter.

Mark Squillace is a professor of law at the University of Wyoming College of Law.