Unconventional Waters: The Quiet Revolution in Federal and Tribal Minimum Streamflows

Abstract:     
The most contentious natural resource issue in the West involves streamflows. Legal rights to streamflows were long nonexistent under the region's dominant water law doctrine of prior appropriation, which historically required a diversion for a recognized water right (thus supplying no legal protection for streamflows). Prior appropriation also ignored long-range planning, conservation, water quality, the needs of Indian tribes, recreation needs, and wildlife habitat, among other things. For these reasons, many think prior appropriation is out-of-step with modern values.

Perhaps the polar opposite of state prior appropriation laws is the federal reserved rights doctrine, a judicially created principle aimed at protecting the purposes of federal reservations. These federal water rights require neither diversions nor conformance to state law definitions of beneficial use, and therefore offer opportunities to protect streamflows, especially in view of the fact that reserved rights often trump prior appropriation rights. Also threatening to destabilize Western prior appropriation rights are regulatory measures under federal statutes like the Clean Water, Endangered Species, and Federal Power Acts.

This article surveys developments in federal reserved and regulatory water rights which may threaten established Western water rights. The article forecasts the dawn of a new era in which states will have to accommodate these unconventional water rights.

Keywords: water law, natural resources law, property law, environmental law

JEL Classifications: K11., K32, O13, Q25, Q28

Accepted Paper Series