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Western Instream Flows: 50 Years of Progress and Setbacks


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Lewis & Clark Law School continues its celebration of the bicentennial of the Corps of Discovery’s extraordinary journey, focusing this year on “Restoring the Rivers of Lewis & Clark.” On April 20-21, 2006 at the Oregon Convention Center in Portland, Oregon, The Oregon Law Institute and Lewis & Clark Law School hosted a symposium entitled “Western Instream Flows: 50 Years of Progress and Setbacks.” This multi-faceted symposium brought together renowned national legal scholars as well as water resource managers, biologists, water policy advocates, tribal resource managers, and an audience of practicing attorneys and visiting professors. This edition of Environmental Law is rooted in that symposium and explores western water law as it applies to conservation efforts and the public interest in flowing rivers.

The rivers of the West have changed dramatically since the Lewis and Clark expedition made its way to the Oregon coast. As ever-growing populations in the arid West continually increase demands for water uses, our rivers have been dammed, diverted, and drained to meet the needs of cities, agriculture, ranching and industry. Water alone, however, is not the only resource in rivers and streams. These waterbodies, the lifelines of the West, are of fundamental importance to the natural ecosystems, as well as human cultural and recreational activities on the rivers.

For fifty years, western water policy has struggled to find a place for these instream uses within the doctrines of prior appropriation and beneficial use in western water law.  This symposium and its subsequent articles examine the development of instream flow rights and obstacles to their implementation, the interplay of federal and tribal instream flow protection with state water law, and innovative approaches for the future of instream rights. Each author discusses the issue of instream rights from his or her area of specialty. Charles Wilkinson[1] provides a moving discussion of the importance of instream flows and the advocates who work to protect our rivers. Janet Neuman[2] traces the history of Oregon’s instream flow protection legislation, and evaluates the failures, successes, and implications of Oregon’s statutes both within and outside Oregon’s borders. Michael Blumm,[3] David Becker,[4] and Joshua Smith[5] examine the efforts of six tribes to restore streamflows necessary to fulfill the purposes of their reservations, and the special problems tribes face by being forced to bring these challenges in state courts. Charlton Bonham[6] delves into the instream flow laws of California, Montana, and the Intermountain West (Colorado, Idaho, Utah, and Wyoming) and their developments specifically with respect to water for fish, and concluding with recommendations for balancing the interests of the many stakeholders on rivers. Adell Amos[7] examines the interplay between the four major federal land managing agencies and state water law, and provides a comprehensive set of recommendations to balance the tension between state and federal governments over water rights for federal lands. Reed Benson[8] compares the water law systems of Colorado and Wyoming and answers the question whether these states have made “adequate progress” since 2000 in improving their instream flow laws. And finally, Ruth Mathews[9] provides a survey of state instream flow laws, looking beyond the legal framework to capacity, public awareness, science and technical tools, and monitoring and enforcement.

As demands on water resources increase with population growth, and climate change impacts the ecology of the rivers, the place for instream flows in water law is by no means certain. We hope these articles will give readers an understanding of instream flows as well as inspire discussion on the impact and future of these flows to the restoration of the rivers of the West. Our rivers will never be what they were when the Corps of Discovery followed the mighty Columbia to the Pacific, but the vitality of the West’s incredible resource in the rivers themselves depends in large part on this element of water law. Environmental Law would like to thank all of our authors and the symposium planning committee–John Devoe, Janet Neuman, Anne Squier, Lin Harmon-Walker, Janice Weis, and Charles Wilkinson–for all of their hard work.

[1] Distinguished University Professor and Moses Lasky Professor of Law, University of Colorado.

[2] Professor of Law and Associate Dean of Faculty, Lewis and Clark Law School.

[3] Professor of Law, Lewis and Clark Law School.

[4] Staff Attorney, Western Resource Advocates, Salt Lake City, Utah.

[5] Judicial Clerk to United States District Court Judge James A. Redden, Portland, Oregon.

[6] Senior Attorney and California Director, Trout Unlimited.

[7] Assistant Professor and Director, Environmental and Natural Resources Law Program, University of Oregon School of Law

[8] Winston S. Howard Distinguished Professor, University of Wyoming College of Law.

[9] Founder, River Matters, Bellingham, Washington.

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