A Private Fix for Leaky Trout Streams

Wednesday, June 1, 1988

June & December 1988
Volume 20

Giant troutFishing the Ruby River in southwestern Montana can be a joyous way to celebrate spring. But last spring was a different story.

Imagine the sickening feeling when we saw a pair of 16-inch brown trout floating belly-up in a trickle of water that was formerly the Ruby River. The dead trout were the remnants of a massive fish kill that occurred because most of the stream's flow had been diverted for irrigation. Minimal snow pack, little spring rain, and a heavy demand for irrigation in early May reduced the flow in an l.5-mile section of the Ruby to a trickle at best. Trout became stranded in pools that eventually heated up to temperatures that for them were deadly.

Unfortunately, such stream dewatering is a recurring problem in a number of Western states, and, sadly, the additional water needed to keep the streams flowing is often of little value to other users. Indeed, as fish were dying in the Ruby, six inches of water was standing in nearby fields. It was obvious to us that the problem could have been avoided easily if only small amounts of water were transferred from irrigation to instream flows.

Seeing the fish dying in the midst of water-logged fields caused us to delve deeper into the apparent paradox. The problem goes back to the evolution of water law on the mining and farming frontier of the American West. Out of this environment developed the "prior appropriation" water doctrine, under which the first people to claim and use water obtained a priority right to it. The doctrine allowed farmers and miners to divert water from streams to where it was needed. The result often diminished the quantity--and sometimes the quality-of waler, but with many streams and few recreational demands, there was little conflict.

It is important to note that under the prior appropriation doctrine, rights can be established only by diverting water and putting it to "beneficial" use. If a rights holder leaves water in the stream, it is not considered a beneficial use, and he would lose the right since water not diverted reverts 10 the public domain and can be claimed by other diverters.

To illustrate how this "use it or lose it" principle contributes to stream dewatering, consider this example. When a Montana rancher offered an environmental group a conservation easement for Madison River water rights on the condition that the water be left in the river for trout habitat, the legal counsel for the group advised that such rights would be considered abandoned and available for diversion by others. The water is still being diverted for irrigation because of the legal impediment. Similarly, efforts by The Nature Conservancy to purchase diversion rights and leave the water flowing in Silver Creek near Sun Valley, Idaho, have been stymied by the "use it or lose it" principle.

Today, this old doctrine is generating growing conflicts between instream and off-stream users. With population and economic growth, trout fishermen frequently face the Ruby River situation. The only way for sportsmen to express their demands for water is through state agencies and the political process. As long as there is unclaimed water, state agencies throughout the West have the authority to reserve water for instream purposes. On the lower Yellowstone River, for example, the Montana Department of Natural Resources and Conservation (DNRC) has reserved 5.4 million acre feet that cannot be claimed by private users. This, however, is not the blue-ribbon stretch of the river.

The real problem exists on the upper reaches of Western rivers like the Ruby where water rights are fully claimed, and in some cases actually exceed normal flows. On these streams, sportsmen can expect tough opposition to state reservations from a coalition of agricultural, industrial, and municipal users.

With rights fully appropriated, condemnation and purchase of water rights is the only option for state agencies. The Montana Department of Fish, Wildlife, and Parks (DFWP) is empowered to purchase, condemn, or lease water rights for instream purposes, but this power has not been used widely because of the conflict it generates.

The Colorado Water Conservation Board has similar authority, but it too has to depend on reservations of unclaimed water. The board has filed applications for over 900 appropriations, but most of these are tied up in lengthy water adjudication processes. On streams where there is no unclaimed water, fishermen should be concerned that state agencies under severe fiscal constraints will not be able to continue preserving instream flows.

A recent study by the Western Governors' Association found that "states are reluctant to try ... to protect and enhance instream flows because to do so is to invite litigation." In addition, the report says that while states have the authority to acquire instream flow rights, budgetary constraints often prevent them from doing so. We are not optimistic that trout fishermen can rely on state agencies to reserve sufficient instream flows where they are needed.

In the Ruby River case, the DNRC was able to persuade farmers to leave approximately 100 cubic-feet-per second flowing in the stream. Unfortunately, the effort was too little, too late for the dead trout. The DNHC had to depend on the good graces of the irrigators. Short of these good graces, there was little else that could be done, and any legal action by the state agency would have undoubtedly resulted in litigation.

TU Should Lease Flows

The time has come for trout fishermen to become entrepreneurs, and we think we have a plan worthy of consideration. Our proposal is for an organization such as Trout Unlimited to get in the business of "renting" or "leasing" the small amounts of water necessary to prevent the Ruby River situation.

With the low snow pack, it was easy to anticipate the dewatering problem, so it would have been easy for TU to negotiate a water contract before the problem occurred. Given that the additional value of water standing in the fields is quite low, our calculations show that the amount of water necessary to have prevented the upper Ruby River kill could have been rented for less than $4 ,000.

For trout fishermen to use private options, a major legal obstacle to ownership of instream flows must be removed. Currently, strict adherence to the prior appropriation doctrine and 'the "use it or lose it" principle dictates that no Western states allow such ownership even on a temporary basis. Trout fishermen could have a positive impact by lobbying for removal of this legal obstacle.

With 50,000 members dedicated to bolstering trout populations, TU should be able to create a "dewatering fund." Unfortunately, TU's tactic for solving stream dewatering has been to rely on greater federal and state intervention. At the national level, TU's 1987 plan of action included seeking opportunities to increase flows for salmonoid fisheries via federally reserved water rights. Local chapters have lobbied for legislation granting states greater powers in controlling instream flows. TU has been active in litigation by the Montana DFWP, claiming that prior stocking of fish constituted a beneficial use for which the DFWP is entitled to an appropriation right with higher priority than existing diversion rights. Not surprisingly, the case has created more bad will with farmers and ranchers who would lose diversion rights.

We think it would be far more effective for a committed private organization such as Trout Unlimited to put its "money where its fish are" by renting or even purchasing water from farmers. Skeptics may charge that private organizations will not be able to come up with these funds, but funding figures show that TU is very adept at raising money for projects including lobbying and litigation. For example, last year TU nationally raised several million dollars in contributions through dues, banquets, and auctions of art, fishing equipment, and guided fishing trips.

A similar organization, Ducks Unlimited, illustrates how our proposal can be used to preserve wildlife habitat. DU spends much of its resources acquiring, leasing, and managing critical habitat. DU's track record is impressive. It has acquired more than four million acres of wetlands. To accomplish this, it has raised over $360 million since 1966 and $59 million in 1986 alone!

A recent example of DU's protection of wetlands is the 3,246 acres of marshlands purchased jointly with The Nature Conservancy from Father Flannigan's Boys Home of Omaha, Nebraska. The area lies between the 2,000-acre Hailstone National Wildlife Refuge and the state-owned, 6,000-acre Big Lake Wetland Complex in central Montana. The entire assemblage of federal, state, and private lands makes it one of the largest and most productive waterfowl areas in the country.

Anglers in England also rely on private initiative to protect valuable trout habitat. The Angler's Cooperative Association (ACA), an association of anglers' clubs, has assumed the job of monitoring the pollution of fishing streams since the l 950s-almost 20 years before the British public became concerned about pollution. Allen Edwards, director of the ACA, says: "In all, the ACA has handled over 1,500 cases of pollution and recovered hundreds of pounds in damages to enable club and riparian owners to restore their fisheries."

Trout fishermen cannot sit back and rely on the political process to meet their demands. The money is not there in state treasuries, and well established private rights make litigation inevitable if states try to "take water" for instream purposes. The above examples show it is not only possible but also practical for private concerns to address the stream dewatering problem.

If we can succeed in lobbying to remove the "use it or loose it" legal restrictions, organizations such as Trout Unlimited can move from the political arena, where games are always zero sum, to the market arena, where "win-win" situations are possible. Following the example of Ducks Unlimited, fishermen-like duck hunters· preserving wetlands-could devote resources to improving stream flows for water while working cooperatively with other water users. By augmenting public reservations with private water leasing, your next trip to the Ruby Rivers of our country can be more pleasant outings.

TERRY L. ANDERSON, author of Water Crisis: Ending the Policy Drought, is a professor of economics at Montana State University and senior associate at the Political Economy Research Center in Boseman, Montana. DONALD R. LEAL is a research associate at the Political Economy Research Center.


Forum Water, Trout, and Trout Unlimited

IN RESPONSE to the Forum ("A Private Fix for Leaky Trout Streams" by Terry Anderson and Donald Leal) in the June 1988 issue, while Anderson and Leal 's central theme is appropriate, the article is poorly researched and does not accurately report the efforts of Trout Unlimited in Montana.

The one saving grace in the article was its description of disincentives built into the present water rights system. Action is needed by the Montana legislature to provide irrigators with the incentive to conserve water for instream flows. More about that later.

Unfortunately, that point gets lost in the discussion of the current state of protections in Mont<ma, the problems on the Ruby River, and in the failure by Anderson and Leal in their discussion to acknowledge a number of ongoing cooperative efforts at instream protection between Trout Unlimited and a variety of agricultural interests.

Consider the problems on the Ruby River. Anderson and Leal correctly describe the dewatering of the Ruby River that has been caused by irrigation practices in two of the last three years. It is not correct to say, however, that the Montana Department of Natural Resources and Conservation (DNRC) persuaded farmers to release 100 cubic feet of water per second (cfs) down the Ruby in the summer of 1987. After the damage had largely been done, DNRC simply went in and released an additional 200 cfs from the Ruby River dam in addition to the 450 cfs already flowing from the dam. The Ruby is not, however, a good example of the dilemma facing farmers who might want to conserve water. The tools already exist on the Ruby to assure adequate flows, if all the interested parties cm reach a cooperative solution.

The Ruby River Dam, which is above the dewatered area, holds 38,000 acre-feet (an acre-foot is the amount of water needed to cover one square acre of land to a depth of one foot). The DNRC holds the water rights to that 38,000 acre-feet. In J 983, they made a contract with the Ruby River Water Users Association that allows the association to self the water "for irrigation, watering of stock, domestic and municipal purposes, and for other purposes." This language gives the Water Users the right to sell the water for any beneficial purpose, including fisheries. The Water Users Association passed bylaws, however, that limit the use of the water they sell to domestic and agricultural purposes only. A simple change in that limitation would allow the Water Users to sell water for protection of the fisheries.

Over the past year DNHC has made a series of proposals to the Water Users Association to limit the dewatering of the Ruby during the period in May that is typically the problem. As of April 12, 1988, while the Water Users Association had agreed to monitor the water levels in the Ruby, it had made no specific commitment to provide flows in the river sufficient to solve the dewatering problem. The irony is that the amount of water necessary to prevent dewatering is small relative to the total capacity of the reservoir. Fish and Game personnel have estimated that the amount of additional water needed from the dam to prevent a fish kill is approximately 20 cfs for ten days (400 acre feet). The tools to solve the problems on the Ruby are at hand without need of any additional legislative fix. All that is needed is cooperation.

The Anderson/Leal Forum made a number of misstatements that obscure its basic message. It said that the DNRC has a reservation for instream flows on the lower Yellowstone, a reservation that does not protect the blue-ribbon stretch of the river. Wrong. The reservation is held by the Department of Fish, Wildlife, and Parks. And a significant part of the reservation is in the blue-ribbon stretch of the river.

It is important to understand that water reservations are not a panacea for solving the problems of drought. Because instream reservations are a recent 1 y conceived management tool (legislated in 1973 ), the priority dates of water reservations are so late in relation to most of the existing consumptive rights on a stream that the reservations provide little protection in times of drought. (In Montana water-use law water users have priority of use based on the dates of their reservations. For instance, a rancher with an instream reservation dating back to 1900 would have the right to use water on a given river ahead of a landowner on the same river whose water reservation was dated later.) The recently legislated water reservations simply prevent more severe dewatering by future consumptive users.

The Forum also said that the Montana Department of Fish, Wildlife, and Parks has the power to condemn water rights. The department has never had the power to condemn water rights. To suggest that it has that power is a disservice to any effort to achieve the solutions that Anderson and Leal espouse. Anyone who has lived in the West for any length of time knows that the term "condemnation" is a word that immediately places people on the defensive. Use of the word can scuttle any attempt at cooperative solutions to landowner-recreationist problems.

Finally, the Anderson/Leal Forum misrepresented the efforts of the Montana State Council of Trout Unlimited. It implied that TU's efforts have been limited to seeking greater federal and state intervention. Wrong again. Certainly Trout Unlimited has intervened as a friend of the court in a water rights case on the side of DFWP. Contrary to what was implied in the article, the DFWP position in the case will have little effect on any existing diversionary rights. The rights sought by DFWP in that action would mostly protect against dewatering by future water diversions.

Perhaps more important, the Montana State Council of TU and a number of its local chapters have been in the forefront of efforts to promote cooperative solutions to the problems of protecting instream flows in Montana. TU is an active participant on the Governor's Drought Task Force, a group of diverse user groups ranging from Trout Unlimited to irrigators and stock growers. The focus of the Drought Task Force has been to work on cooperative approaches to the mitigation of drought impacts. The Task Force has discussed the introduction of legislation to permit consumptive water users to sell or lease water they have conserved to organizations dedicated to the protection of instream flows. That appears to be what Anderson and Leal proposed in their Forum.

Local TU chapters have also been active in cooperative efforts to protect instream flows. For example, the Bitterroot Chapter has been involved in the activities of a diverse group of water users working to protect instream flows on the Bitterroot River. And the Upper Missouri Chapter of TU has been active on the Upper Missouri Advisory Council, which addresses stream flows and reservoir operations on the upper Missouri River.

In addition, the DNRC has been developing an instream component to its state water plan. It includes a proposal to do just what Anderson and Leal espouse. Again, the State Council of TU has been active in that effort.

Mr. Anderson and Mr. Leal have touched on the heart of the water-use problem, and they appear to have some grasp of part of the solution. Nevertheless, they should inform themselves more thoroughly on what is currently happening. Then they can contribute their energies to a truly cooperative solution.

BILL CAIN, Chairman Montana State Council of Trout Unlimited Butte, Montana 


Idaho: Water Belongs to the People

The Anderson/Leal Forum was timely in that we in the West have just gone through the second successive dry winter. We have had more trout streams dry up this summer and can expect more this coming winter.

The authors' example of a trickle running down the otherwise dry bed of Montana's Ruby River while an adjacent field had six inches of water standing in it pales in comparison to what took place on Idaho's South Fork of the Snake River last fall and winter. In November flows from Palisades Reservoir were cut back from an inflow of 2,000 cfs (the usual winter flow below the dam) to 780 cfs to store water for the 1988 irrigation season. Miles of side channels were dewatered in a matter of days, resulting in the death of an estimated 600,000 trout (Idaho Department of Fish and Game estimate). In addition to this tragic loss of cutthroat and brown trout, the river's aquatic insect life has been equally hurt. Due to the inequitable legal system that governs water in the West, those of us who were aware of what was taking place could do little hut stand by and watch.

What makes this action by the traditional water user even more galling is the fact that Palisades reservoir, from which the South Fork flows, has a capacity of 1.2 million acre-feet of storage. (That's enough water to cover 1.2 million square acres with one foot of water.) A 1983 report prepared for the BuRec, the federal agency that mismanages water in the West, indicates that there is a yearly loss of 683,000 acre-feet of water through seepages from only four of the nine major irrigation canal systems that Palisades feeds. We can only assume that the other five systems account for a proportional quantity of water being wasted. There has been no effort by the ditch companies to conserve water for fisheries, irrigation, or any other purpose.

We believe that Anderson and Leal have failed to mention important facts relating to water in the West. The omissions in their Forum have led them to an overly simple and erroneous solution to the region's most serious and complex water-related controversies the conflict between instream flows and water appropriations. We believe your readers should be informed about the issue.

There are many streams in the West that historically had healthy populations of trout, other fishes, and aquatic life. The streams we allude to now have reduced flows or are dried up yearly, regardless of precipitation. Dams and stream diversions intercept the streams' natural flows and siphon them off for other purposes. Those purposes are collectively termed ''beneficial uses." What that really means is that a stream's flows are not "wasted" by allowing them to remain in a stream but are used for irrigation, mining, or domestic use. By law these beneficial uses do not include instream flows for fish, wildlife, or recreation.

Trying to amend state water laws to recognize instream flows as legitimate beneficial uses, which in turn would allow the "renting" of water appropriations as suggested by the authors, would be as difficult to achieve as changing the whole body of Western water law. Certainly some Western states have passed instream flow laws, but instream flows allowed by those laws are junior to all others. On streams where instream flows are needed those dried up by prior appropriation- they are not granted, because there is no unappropriated water.

Even under different legal circumstances one would be hard pressed to find a rancher or farmer who would rent water in dry years, the very dry years when instream flows for fish are most needed. Our question to Mr. Anderson and Mr. teal is why residents of a state should pay for what is already theirs. We propose an alternative to the Anderson/Leal solution, which is temporary at best and probably not workable.

Water rights are not property rights, as implied by the authors. They are usufructuary rights-permission to use a resource held in trust, in this case held in public trust by the states. The public trust and associated rights exist in water, in fish, and in wildlife and associated ecosystems. The trust is predicated upon public ownership of all such resources with the state acting as trustee. A use of water that destroys its values for trust uses or purposes can constitute a waste or unreasonable use of water and should trigger the state's enforcement powers to take aggressive action to protect all associated resources, uses, and interests. When usufructuary rights arc used to adversely affect or negate the public trust, then those rights can be revoked without compensation to the holder.

We believe that appropriate litigation is the only means to permanently solve the problem of instream flows. We also contend that to seek permanent legal solutions to inequities through political action or through the courts is not, as Anderson and Leal phrase it, "sitting back."

We in Idaho intend to use the "public trust doctrine" to acquire instream flows that will give fish and wildlife equitable treatment. The public trust doctrine is the best and most useful legal tool for this purpose. It requires the appropriate state agency to consider how the appropriations of the waters of the state will affect that trust. The agency has the right and responsibility to consider both the new requests for water appropriations and past appropriations when considering the public trust. If certain appropriations adversely affect the public trust, then the agency must deny or cancel that appropriation. If the appropriation is an existing appropriation, no monetary compensation is required of the state.

Litigation based on the public trust doctrine, while lengthy and costly, will lead to a permanent and equitable resolution for all water uses in the West.

MARV HOYT, President Upper Snake River Chapter, Trout Unlimited Idaho Falls, Idaho 


Anderson and Leal Respond

We appreciate the interest that our article aroused, and we would like to respond in great detail to each comment. However, we have been asked to be brief.

Perhaps the most serious problem with Mr. Hoyt’s comment is his conclusion that water rights are not property rights because they are "usufructuary. " Usufructuary rights are property rights, but limited ones. Mr. Hoyt confuses the notion of the usufructuary right with the public trust doctrine, which until recently was confined to navigable streams and beaches. Using the public trust doctrine is a sure-fire method for conflict instead of cooperation. As residents of Montana, we have witnessed a schism between sportsmen and ranchers, because the public trust doctrine allowed the state to take property rights from landowners to give the public virtually unlimited access to Montana streams. About the only beneficiaries are those who sell fluorescent orange paint to mark property boundaries. As far as the "permanency" of this approach, Mr. Hoyt ignores the fact that when rights are retained by government, any political solution is reversible without compensation by the next legislature. One legislature cannot bind its successor, unlike a private seller.

Mr. Cain correctly sees that the limitation in state instream flow reservations is the fact that senior rights holders have priority. This is why it is critical for Trout Unlimited to negotiate water sales or leases directly with these individuals. Though, as Mr. Cain states, senior rights holders may sell water, state law does not allow sales to private individuals or groups such as Trout Unlimited. This restriction needs to be removed. Mr. Cain, too, is naive when he says that all that is needed is "a little trust and cooperation." He fails to recognize that other users depend on this water for their livelihood. They are far more likely to negotiate water deals when they can be made financially better off. That is why sales or exchanges are crucial.

In addition, the power to condemn private property in the name of eminent domain has long been a function of the state, and private water use is exempt from this power. Mr. Cain should check Montana code 87-1-209, which states that the Department of Fish, Wildlife, and Parks "may acquire by purchase, condemnation, lease " lands or waters, before contending that the department has no such power. Mr. Cain is correct in saying that condemnation creates conflict, but no more so than the use of the Public Trust Doctrine.

Finally, Mr. Cain discusses TU's efforts to acquire water for instream flow protection. TU's activity in stream access and as a “friend of the court" has hardly encouraged cooperation. If TU is truly encouraging private trades, rather than simply trying to promote state control of water, then this activity deserves publicity and is to be commended.


[The opinions expressed in Forum are those of the authors who appear here and do not necessarily reflect the editorial policies or views of FLY FISHERMAN magazine. We welcome polite reader response to the issues presented here.]

[Photo credits:Montanabw]

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Fly Fisherman Magazine
Terry Anderson is a senior fellow at PERC and the former President and Executive Director of PERC as well as the John and Jean De Nault Senior Fellow at the Hoover Institution, Stanford University. He believes that market approaches can be both economically sound and environmentally sensitive. His research helped launch the idea of free market...
Read More > More Articles by Terry Anderson >
Leal's research on natural resources and environmental issues spans nearly 20 years. His current focus is on preventing over-harvesting of marine resources and restoring ocean fisheries.Leal is working to build support for individual fishing quotas (IFQs) and fishing cooperatives as more effective alternatives to the current regulatory approach to...
Read More > More Articles by Donald Leal >