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Show Fish and Wildlife Will Suffer Unless Feds Win Water Rights Skirmish By ROBERT J. GOLTEN, Counsel NWF Natural Resource Clinic, Boulder, Colorado Anyone familiar with western politics knows that water is a "get your gun" issue. Those who control the water control the destiny of this region. Whether the West will continue con-tinue to be an area where space is open, streams teem with fish, irrigated farms prosper, and wildlife habitat abounds; or whether it will become a "national sacrifice" area for energy and military development, is being decided right now. Water allocations in the West are determined under the "prior appropriation" ap-propriation" doctrine. Streams are open to "appropriation" by the people on a first-come, first-served basis. Anyone can get a guaranteed right to "divert" unused water for a "beneficial purpose." Except for fish and wildlife. , Though there are several . notable exceptions -- California, Oregon, Montana, Colorado - to the general j rules that fish and wildlife conservation con-servation is not a "beneficial use" of , water in the West, and that dedication i of instream flow is not a "diversion," the ability of state wildlife agencies to t actually obtain and hold water rights I for fish and wildlife purposes is I severely constrained by political realities. For example, an amendment amend-ment to Colorado's in-stream appropriation ap-propriation law will be proposed in the next legislative session, which - if adopted - will substantially nullify the existing law. For another, Montana's reservation of 80 percent f the remaining flow of the , Yellowstone River is under attack in the legislature and the courts of the j state. j - Of course, the federal government, t ,ithe largest landowner in the West, ri0 controls a large share of the l-ater, both under its "reserved water rights" and under various regulatory Programs. However, the extent to which the "Feds" can effectively . exercise their authority to protect ! wldlife is questionable. Take the Riverside Irrigation case, for example. Riverside and the Public Service Company (of Colorado) want to build ; a dam-and-reservoir on a small tributary (Wildcat Creek) of the South Platte River. But to do so they need a 404 (dredgefill) permit from the Army Corps of Engineers. When . the Corps consulted with the U.S. Fish and Wildlife Service, it was advised that the proposed project would further .diminish an already precariously-small streamflow in the Platte River system, and consequently con-sequently could lead to further degradation of habitat downstream in Nebraska used by millions of waterfowl, not to mention the endangered en-dangered Whooping Crane. In response, the Corps had advised the project developers that they have to apply for an individual permit for their project, and that they might have trouble getting it - at least unless they agree to certain mitigation alternatives (i.e. water conservation) which would guarantee protection for the Whooper. As you might have guessed, the project developers have gone to court - challenging the right of the Corps of Engineers to tell them how much water they could and could not use from the South Platte River system. The developers are claiming that their slate water rights entitle them to use the water however they see fit, whether it destroys wildlife habitat or not. They argue, further, that if the United States wants to protect en- dangered wildlife, and their habitat, then the government should do so directly by buying up the river or doing something besides regulating the flow of water. The federal government's response is, first, that the Clean Water Act mandates that the Corps protect the "chemical, physical, and biological integrity" of the water of the United States; the Corps cannot do that without regulating streamflow. Second, the Endangered Species Act , requires that they not take any action (including issuing a permit) that might further jeopardize an endangered en-dangered species, or adversely modify its critical habitat. And third, all the developers have to do to get their permit is agree to conserve water, by using available technology (e.g. "dry" cooling towers) or by acquiring other comsumptive water rights and returning that water to the river. |