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

Abstract:     
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.

Keywords: instream flow, federal reserved water rights, national wildlife refuges, national parks, water rights

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