Untying the gordian knot: Negotiated strategies for protecting instream flows in Texas

Natural Resources Journal

Volumn 38, Issue 1, 1998, Pages 157-196

  Kaiser, Ronald A ^a   Binion, Shane ^b  

^a TEXAS A AND M UNIVERSITY   (United States)

^b Terra Mar   (United States)

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EID: 0005270723     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (206)

1. The term "instream flow" refers to that amount of water flowing in a natural stream channel needed to sustain instream values at some acceptable level. The term "instream values" relates to the uses made of water in the stream channel: it includes maintenance of biological diversity, waste assimilation for water quality purposes, recreation and the maintenance of riparian habitats.
2. Water demands by sectors of the economy are identified in the 1990 State Water Plan. By the year 2010 agricultural, municipal and industrial water needs are projected to be about 15.4 million acre-feet annually. To meet this demand, planners suggest a combination of conservation measures, new reservoir development, water reuse and reallocation measures. See TEXAS WATER DEV. BD., WATER FOR TEXAS-TODAY & TOMORROW 3-2 (1990) [hereinafter, 1990 TEXAS WATER PLAN].
3. For an extensive biological bibliography, see TEXAS WATER DEV. BD., FRESHWATER INFLOWS TO TEXAS BAYS AND ESTUARIES: ECOLOGICAL RELATIONSHIPS AND METHODS FOR DETERMINATION OF NEEDS 347-386 (1994).
4. For articles discussing these benefits see generally, Richard Ausness, Water Rights, The Public Trust Doctrine, and the Protection of Instream Uses, U. ILL. L. REV. 407, 432 (1986);
5. Lynda L. Butler, Environmental Water Rights: An Evolving Concept of Public Property, 9 VA. ENVTL. L.J. 323 (1990);
6. Bonnie G. Colby, Enhancing Instream Flow Benefits in an Era of Water Marketing, 26 WATER RESOURCES RESEARCH 1113 (1990);
7. John Harbison, Waist Deep in the Big Muddy: Property Rights, Public Values & Instream Waters, 26 LAND & WATER L. REV. 535 (1991);
8. Peter N. Davis, Protecting Waste Assimilation Streamflows by the Law of Water Allocation, Nuisance, and Public Trust, and by Environmental Statutes, 28 NAT. RESOURCES J. 357 (1988);
9. Margaret Z. Ferguson, Note, Instream Appropriations and the Dormant Commerce Clause: Conserving Water for the Future, 75 GEO. L.J. 1701 (1987);
10. Joseph Q. Kaufman, An Analysis of Developing Instream Water Rights in Oregon, 28 WILLAMETTE L. REV. 285 (1992);
11. Berton L. Lamb, Quantifying Instream Flows: Matching Policy and Technology, in INSTREAM FLOW PROTECTION IN THE WEST 7-17 (Lawrence J. MacDonnell & Teresa A. Rice eds., rev. ed. 1993);
12. Berton Lee Lamb, Criteria for Evaluating State Instream-Flow Programs: Deciding What Works, 121 J. WATER RESOURCES PLAN. & MGMT. 270 (1995);
13. Alan B. Lilly, Protecting Streamflows in California, 8 ECOLOGY L.Q. 697 (1980);
14. Lori Potter, The Public's Role in the Acquisition and Enforcement of Instream Flows, 23 LAND & WATER L. REV. 420 (1988);
15. Corinne C. Sherton, Comment, Preserving Instream Flows in Oregon's Rivers and Streams, 11 ENVTL. L. 379 (1981);
16. JOSEPH L. SAX ET AL., LEGAL CONTROL OF WATER RESOURCES 153 (2d rev. ed. 1991).
17. See generally A. Dan Tarlock, Appropriation for Instream Flow Maintenance: A Progress Report on "New" Public Western Water Rights, 1978 UTAH L. REV. 211 (1978).
18. In Texas, statutory recognition was extended to protecting estuary inflows in 1985. See generally, TEX. WATER CODE ANN. §§ 11.147, -.150, -.152 (West 1988).
19. Nationally, very little water remains for appropriation. A1975 assessment of water supplies in the U.S. determined that 86 percent of the nation's average annual streamflows were used and in many western states water use exceeds the average annual renewal supply. See U.S. WATER RESOURCES COUNCIL, THE NATION'S WATER RESOURCES, 1975-2000: SECOND NATIONAL WATER ASSESSMENT (1978).
20. There is no water available for new appropriations because rivers are fully appropriated in stretches of the Canadian, Red, Cypress, Sabine, Neches, Trinity, Brazos, Colorado, Guadalupe, San Antonio, Nueces and Rio Grande rivers. See TEXAS NATURAL RESOURCE CONSERVATION COMM'N, A REGULATORY GUIDANCE DOCUMENT FOR APPLICATIONS TO DIVERT, STORE OR USE STATE WATER 26 (1995) [hereinafter, TNRCC, REGULATORY GUIDANCE DOC.].
21. See NAT'L RESEARCH COUNCIL, WATER TRANSFERS IN THE WEST - EFFICIENCY, EQUITY AND THE ENVIRONMENT (1992).
22. This agreement arose from an effort to engage in what has been labeled consensus water planning. Developing ways to provide for instream or environmental flows was part of this planning process. The primary proposal to come out of this inter-agency cooperative effort is the idea of requiring instream flow discharge levels for new water projects. See Consensus Water Planning, TEXAS WATER, Summer 1996, at 4.
23. Of these 5,700 reservoirs in the Texas system, there are 188 major reservoirs - massive "holding tanks" that contain more than 5,000 acre-feet of water each. A mere 74 of these major reservoirs contain 98 percent of Texas' conservation storage, which is the state's usable surface water supply. See TEXAS WATER DEV. BD., TEXAS WATER FACTS 4 (1991).
24. Instream flows are not specifically recognized as a beneficial use of water in the Texas Water Code and it was not until 1985 that instream flow need assessments were required in the permit process. See TEX. WATER CODE ANN. §§ 11.147, -.150, -.152 (West 1988).
25. For a discussion of the Texas public trust doctrine see Morrison & Dollahite, The Public Trust Doctrine: Insuring the Needs of Texas Bays and Estuaries, 37 BAYLOR L. REV. 365 (1985)
26. and Jackie Weaver, The Public Trust Doctrine and Texas Water Rights Administration: Common Law Protection for Texas' Bays and Estuaries?, 15(2) STATE BAR OF TEX. ENVTL. L. J. 1 (1985).
27. For a cogent historical overview of the origins of Texas water law, see Hans Baade, Historical Background of Texas Water Law - A Tribute to Jack Pope, 18 ST. MARY'S L.J. 1 (1986).
28. Texas v. Hidalgo County, WCID No. 18, 443 S.W.2d 728 (Tex. Civ. App. - Corpus Christi 1969, writ ref'd n.r.e.).
29. For a review of the case setting see Douglas Caroom & Paul Elliot, Water Rights Adjudication - Texas Style, 44 TEXAS BAR J. 1183, 1184 (1981).
30. Act of Apr. 13, 1967, ch. 45, 1967 Tex. Gen. Laws 86, now codified as TEX. WATER CODE ANN. §§ 11.301 to -.341 (West 1988).
31. Now the Texas Natural Resources Conservation Commission.
32. See In re Adjudication of Water Rights of the Upper Guadalupe Segment, 642 S.W.2d 438 (Tex. 1982); In re Adjudication of Water Rights of Brazos III Segment, 746 S.W.2d 207 (Tex. 1988).
33. While the Texas Water Code recognizes recreation, pleasure and game preserves as a purpose for which state water can be appropriated, it does not explicitly recognize instream flows as a beneficial use of water. See TEX. WATER CODE ANN. § 11.023 (West 1988).
34. See Corwin Johnson, Legal Assurances of Adequate Flows of Fresh Water into Texas Bays and Estuaries to Maintain Proper Salinity Levels, 10 HOUS. L. REV. 598, 605 (1973).
35. Instream flow consideration was explicitly mandated as part of the permit process in 1985. See TEX. WATER CODE ANN. § 11.147(c) (West 1988).
36. See TEX. WATER CODE ANN. § 11.023.
37. Id. § 11.024.
38. Scientific recognition of the linkage between rainfall, freshwater inflows into Texas bays and estuaries and fish production was first recognized in 1953. See H. Hildebrand & G. Gunter, Correlation of Rainfall with Texas Catch of White Shrimp, Penaeus Setiferus, 82 TRANSACTIONS OF AMERICAN FISHERIES SOCIETY 151-155 (1953).
39. For the statutory planning authority, see TEX. WATER CODE ANN. § 16.051 (West 1988).
40. See TEXAS WATER DEV. BD., THE TEXAS WATER PLAN (1968);
41. TEXAS WATER DEV. BD., CONTINUING WATER RESOURCE PLANNING & DEVELOPMENT FOR TEXAS (1977);
42. TEXAS DEP'T OF WATER RESOURCES, WATER FOR TEXAS - A COMPREHENSIVE PLAN FOR THE FUTURE (1984);
43. TEXAS WATER DEV. BD., WATER FOR TEXAS: TODAY AND TOMORROW (1990).
44. TEX. CONST., art. III, § 49-D. The constitution was further amended in 1962, 1966, 1969, 1971, 1976 and 1985 to broaden the Water Development Board's authority to construct reservoirs.
45. In part through this effort, more than 180 reservoirs have been constructed.
46. TEXAS WATER DEV. BD., THE TEXAS WATER PLAN: SUMMARY 33 (1968).
47. The 1968 Plan called for an estimated 2.5 million acre-feet of supplemental freshwater inflows annually to be delivered to Texas estuaries through a coastal canal system. Funding for this system was never approved. See TEXAS WATER DEV. BD., THE TEXAS WATER PLAN, III-14 to -21 (1968).
48. See TEXAS WATER DEV. BD., CONTINUING WATER RESOURCE PLANNING AND DEVELOPMENT FOR TEXAS, II-58 (1977);
49. TEXAS DEPT. OF WATER RESOURCES, WATER FOR TEXAS - A COMPREHENSIVE PLAN FOR THE FUTURE, II-33 (1984);
50. 1990 TEXAS WATER PLAN, supra note 2, at 1-10.
51. As part of the new consensus water planning process the Texas Water Development Board (TWDB), the Texas Natural Resource Conservation Commission (TNRCC) and the Texas Parks and Wildlife Department (TPWD) have reached agreement on new reservoir release criteria to quantify the amount of water to be passed through for instream flow needs during times of drought. See Consensus Water Planning, supra note 10, at 4.
52. Ronald Kaiser & Sharon Kelly, Water Rights for Texas Estuaries, 18 TEX. TECH L. REV. 1121, 1137 (1987) (Following a 1984 summer drought the Commission ordered the release of 10,000 acre-feet of fresh water from Lake Texana to the Lavac-Matagorda bay and estuary system to reduce the high salinity levels that were threatening the habitat of white shrimp).
53. TEX. WATER CODE ANN. §§ 15.3041, 16.1331 (West 1988).
54. Telephone interview with Gary Powell, Division Chief, Envtl. Section, Tex. Water Dev. Bd. (Aug. 14, 1996). According to Powell, there are no reservoirs that are operated under this rule. Lake Texana and the Choke Canyon and Lake Corpus Christi water supply systems are both being operated under TNRCC orders developed by the TNRCC, TWDB, and TPWD for environmentally safe operations of the impoundments. These operating rules involve multi-stage operations and in the case of Lake Texana, multi-level outlet works. In both cases, instead of appropriating 5% of the firm yield to the TPWD for use on demand as a freshwater release to the bays and estuaries, the agencies developed "pass-through" rules that result in about the same yield loss but provide substantially more environmental flows and living resource benefits than would have been possible to obtain with a simple 5% appropriation and on-demand release from storage. Future reservoirs that may be affected include: Cibolo Creek, Lindenau, Cuero, Goliad, and the Allens Creek projects.
55. In Texas, the right to divert and beneficially use water is granted through an administrative permit process administered by the TNRCC Changes in the place, purpose or time of use, point of diversion, rate of diversion or acreage to be irrigated require state approval and the approved changes can be subject to new conditions. Prior to 1985 the Texas Water Code did not specifically require that the Commission consider or impose permit terms to protect instream flows, consequently, terms were seldom attached to storage or diversion permits. See TEX. WATER CODE ANN. §§ 11.025, -.121, -.122 (West 1988 & Supp. 1997).
56. TEX. WATER CODE ANN. §§ 11.147, -.150, -.152 (West 1988).
57. TEX. WATER CODE ANN. § 11.147(c) (West 1988).
58. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 45.
59. For purposes of this paper, the range of actions, legal techniques, or management options are termed strategies.
60. Several states use the reservation option including Alaska, ALASKA STAT. § 46.15.145 (Michie 1996); California, CAL. WATER CODE § 1257.5 (West Supp. 1997); Kansas, KAN. STAT. ANN. § 82a-703a (1989); Montana, MONT. CODE ANN. § 85-2-316 (1997); North Dakota, N.D. CENT. CODE § 61-04-31 (1995); Oregon, OR. REV. STAT. § 536.410 (Supp. 1996); South Dakota, S.D. CODIFIED LAWS § 46-5-38 (Michie 1987); Texas, TEX WATER CODE ANN. § 11.147 (West 1988); Utah. UTAH CODE ANN. § 73-6-1 (1989); and Washington, WASH. REV. CODE ANN. § 90.54.050 (West 1992).
61. Tarlock, supra note 5, at 8-4.
62. Butler, supra note 4, at 349.
63. Richard Wahl, Acquisition of Water to Maintain Instream Flows, 1 RIVERS 195, 196 (1990); Kaufman, supra note 4, at 304.
64. MONT. CODE ANN. § 85-2-601 (1997).
65. Wahl, supra note 45, at 196.
66. COLO. REV. STAT. ANN. § 37-92-102(3) (West 1990 & Supp. 1997); IDAHO CODE § 67-4307 (1995).
67. CAL. WATER CODE § 1707 (West Supp. 1997).
68. TEX. WATER CODE ANN. §§ 11.147, -.150, -.152 (West 1988).
69. TEX. WATER CODE ANN. §§ 15.3041, 16.1331 (West 1988 & Supp. 1997).
70. For a discussion of the merits of this approach, see Kaiser & Kelly, supra note 34; Johnson, supra note 21.
71. Kaufman, supra note 4, at 297.
72. Federal agencies may apply for and hold instream rights. For example, the Nevada Supreme Court in 1988 held that the federal government could hold instream rights in that state. See Nevada v. Morros, 766 P.2d 263 (Nev. 1988). For a discussion of this option see Steven J. Shupe & Lawrence J. MacDonnell, Recognizing the Value of In-Place Uses of Water in the West: An Introduction to the Laws, Strategies and Issues, in INSTREAM FLOW PROTECTION IN THE WEST 1-13 (Lawrence J. MacDonnell & Teresa A. Rice rev. eds., 1993).
73. Tarlock, supra note 5, at 241.
74. ALASKA STAT. § 46.15.145 (Michie 1996); ARIZ. REV. STAT. ANN. § 45-151 (West Supp. 1996); IDAHO CODE § 42-1501 (1990); MONT. CODE ANN. § 85-2-316 (1997); NEB. REV. STAT. § 46-2, 108 (1993); NEV. REV. STAT. ANN. § 533.030 (Michie 1995); OR. REV. STAT. § 537.336 (Supp. 1996); UTAH CODE ANN. § 73-3-3(11)(a) (Supp. 1997);WYO. STAT. ANN. § 41-3-1003(c) (Michie 1997).
75. COLO. REV. STAT. ANN. § 37-92-102(3) (West 1990 & Supp. 1997).
76. Id.
77. TEX. WATER CODE ANN. § 16.1331 (West 1988).
78. Id. § 12.112 (West Supp. 1997).
79. ALASKA STAT. § 46.15.145 (Michie 1996); ARIZ. REV. STAT. ANN. § 45-151A (West Supp. 1996).
80. See Potter, supra note 4, at 440; Kaufman, supra note 4, at 301.
81. COLO. REV. STAT ANN. § 37-92-102(3) (West 1990 & Supp. 1997).
82. See OR. REV. STAT. §§ 537.348, 537.455, 540.510 (1988 & Supp. 1996). For a discussion of the efficacy of this program see Mark Honhart, Carrots for Conservation: Oregon's Water Conservation Statute Offers Incentives to Invest in Efficiency, 66 U. COLO. L. REV. 827 (1995).
83. See, e.g., Nevada v. Morros, 766 P.2d 263 (Nev. 1988)(allowing water to be appropriated for fish and wildlife purposes because Nevada Statutes, NEV. REV. STAT. ANN. § 533.030 (Michie 1995), requires only the application of water to a beneficial use).
84. See condemnation, infra notes 116-123.
85. The structural difficulties are illustrated by the Colorado approach of integration. In 1973 Colorado authorized an instream flow program to fit within the guidelines of the prior appropriation system. Thus, instream flow rights became vested rights on par with other rights but they were junior by 70 years to the senior rights on most rivers in the settled regions of the state. See COLO. REV. STAT. ANN. § 37-92-102(3) (West 1990 & Supp. 1997).
86. See Ronald Kaiser, Texas Water Marketing in the Next Millennium: A Conceptual and Legal Analysis, 27 TEX. TECH L. REV. 181 (1996); Wahl, supra note 45, at 203; Colby, supra note 4, at 6-16 to 6-21.
87. The Nature Conservancy has been at the forefront in purchasing water rights for dedication to environmental uses. See Bonnie Colby, Benefits, Costs, and Water Acquisition Strategies: Economic Consideration in Instream Flow Protection, in INSTREAM FLOW PROTECTION IN THE WEST 6-17 to 6-19.(Lawrence J. MacDonnell & Teresa A. Rice eds., rev. ed. 1993).
88. RICHARD DEWSNUP & DALLIN JENSEN, U.S. DEP'T OF INTERIOR, STATE LAWS AND INSTREAM FLOWS 38-39 (1977).
89. MONT. CODE ANN. § 87-1-209 (1997); COLO. REV. STAT. ANN. § 37-92-102(3) (West 1990 & Supp. 1997); UTAH CODE ANN. § 73-3-3 (Supp. 1997); WYO. STAT. ANN. § 41-3-1007 (Michie 1997).
90. OR. REV. STAT. § 537.348 (1988); COLO. REV. STAT. ANN. § 37-92-102(3) (West 1990 & Supp. 1997).
91. Wahl, supra note 45, at 197.
92. DEWSNUP & JENSEN, supra note 70, at 40-41.
93. See Christopher H. Meyer, Instream Flows: Integrating New Uses and New Players Into the Prior Appropriation System, in INSTREAM FLOW PROTECTION IN THE WEST 2-12 (Lawrence J. MacDonnell & Teresa A. Rice., eds., rev. ed. 1993).
94. Colby, supra note 4, at 1116.
95. For example, a Utah city paid $25,000 for an option to lease irrigation water in any year that it exercised its option. Over the 25 years that the arrangement was in effect the city used the water a total of three dry seasons. See Edward Clyde, Legal and Institutional Aspects of Drought Management, in DROUGHT MANAGEMENT AND ITS IMPACT ON PUBLIC WATER SYSTEMS 78, 87 (Nat'l Res. Council ed., 1986).
96. DEWSNUP & JENSEN, supra note 70, at 40-41.
97. MONT. CODE ANN. § 87-1-209 (1997).
98. John E. Thorson, Public Rights at the Headwaters, J. AM. WATER WORKS ASS'N, Oct. 1986, at 72, 77.
99. See OR. REV. STAT. §§ 537.336, -.348 (1988 & Supp. 1996).
100. For a discussion on buying and selling water rights in Texas, see Ronald Kaiser, Texas Water Marketing, supra note 68;
101. Mike Willatt, Buying and Selling Water Rights in Texas, 59 TEX. BAR J. 628 (1996).
102. An application to change the place or purpose of use, point of diversion, rate of diversion or otherwise alter a water right requires approval of the Commission. See TEX. WATER CODE ANN. § 11.122 (West 1988).
103. Whether a water right for an instream flow is authorized under the Texas Water Code has not been statutorily or judicially resolved. Under the Code, a water right is defined as a right to "impound, divert or use state water," which implies that use is possible without diversion. See TEX. WATER CODE ANN. § 11.002 (5) (West 1988).
104. Rules of the Commission recognize instream uses as a beneficial use of water. See 30 TEX. ADMIN. CODE § 297.1 (West 1988).
105. Although the Commission must give preference to applications which will effectuate the maximum utilization of water and are calculated to present the escape of water without a contribution to a beneficial public service, it seems clear from other parts of the code that inflows relate to public welfare See TEX. WATER CODE ANN. §§ 11.123, -.1351, -.147, -.152, 15.3041 (West 1988).
106. The Commission is obligated to give preference to applications according to a statutory priority list which ranks all other named uses above recreation and game preserves and does not list inflows protection at all. See TEX. WATER CODE ANN. § 11.023 (West 1988). But see 30 TEX. ADMIN. CODE § 297.1.8 (WESTLAW through Mar. 28, 1997) (rules promulgated by the Commission recognize instream uses as a beneficial use).
107. See Kaiser & Kelly, supra note 34, at 1130-34.
108. See TEX. WATER CODE ANN. §§ 11.036, 15.323 (West 1988).
109. 1990 TEXAS WATER PLAN, supra note 2, at 1-8. (About half of this 850,000 acre-feet of uncommitted supply is in the Sam Rayburn Reservoir).
110. Sales can only be made if three conditions are satisfied: (1) an applicant has a permit issued by the Commission; (2) the sale is in the public interest; and (3) the sale "is fair, just, reasonable, and in full compliance with the law." See TEX. WATER CODE ANN. § 15.321(a) (West 1988).
111. For legislation creating the Bank, see TEX. WATER CODE ANN. §15.700 to -.708 (West Supp. 1997).
112. Legislation creating the Bank directed the TWDB, in coordination with the TNRCC and the TPWD, to study and report on ways to assist in providing flows to meet instream, water quality, fish and wildlife habitat, and bay and estuary inflow needs through the water rights marketing and transfer process. The inter-agency group which completed the report suggested three alternatives to the status quo method of providing and protecting instream uses. First, the legislature should fund the TWDB, or the TPWD, to purchase water rights that will go toward protecting critical aquatic and wildlife habitats. These funds could also be used to compensate rights holders for voluntarily agreeing to environmental (instream) conditions appended to their permits. Second, in order to eliminate the uncertainty in the TNRCC permitting process, the legislature should require a fixed percentage of flow, five percent for example, to be withheld from all new and amended permits. Third, since the state has not dedicated funds for the purchase of water for instream purposes, the legislature should provide funding to the Bank so that TWDB can make these types of purchases. See TEXAS WATER DEV. BD., A REPORT TO THE GOVERNOR AND MEMBERS OF THE TEXAS LEGISLATURE CONCERNING THE TEXAS WATER BANK (1995).
113. Experiences in California and Idaho indicate that banks can transfer a significant amount of water to meet environmental water needs. The 1992 California bank transferred 30 percent of its deposited water for environmental purposes. Data from the local banks in Idaho indicated that a large percentage of the water transferred in 1993 was used for environmental purposes. See Kaiser, supra note 68, at 189; LAWRENCE MACDONNELL, ET AL., WATER BANKS IN THE WEST 2-1 to -45 (1994).
114. See ALASKA STAT. § 46.15.080 (Michie 1996); ARIZ. REV. STAT. ANN § 45-153 (West 1994 & Supp. 1997); CAL. WATER CODE, §§ 1255-1258 (West 1971 & Supp. 1998); IDAHO CODE § 42-203 A (1990); KAN. STAT. ANN. § 82A-711 (1989); MONT. CODE ANN. § 85-2-311(2) (1997); NEB. REV. STAT. §§ 46-234, -235, 46-2,116 (1993); NEV. REV. STAT. ANN. § 533.370 (Michie 1995); N.M. STAT. ANN. § 72-5-6 (Michie Repl. Pamp. 1997); N.D. CENT. CODE § 61-04-06 (1995); OR. REV. STAT. § 537.170(4), (5) (1988 & Supp. 1996); S.D. CODIFIED LAWS § 46-2A-9 (Michie 1987); TEX. WATER CODE. ANN. § 11.147 (West 1988); UTAH CODE ANN. § 73-3-8 (Repl. 1989); WASH. REV. CODE ANN. § 90.03.290 (West 1992 & Supp. 1997); WYO. STAT. ANN. § 41-4-503 (Michie 1997).
115. N.M. STAT. ANN. § 72-5-23 (Michie Repl. Pamp. 1997) (allowing approval of transfers not detrimental to the state).
116. S.D. CODIFIED LAWS § 46-2A-12 (Michie 1987) (allowing for permit changes if not detrimental to public welfare).
117. NEV. REV. STAT. § 553.370 (Michie 1995) (allows for rejection of amendments that prove detrimental to public interest).
118. CAL. WATER CODE § 1253 (West 1971); UTAH CODE ANN. § 73-3-8 (Repl. 1989).
119. Tarlock, supra note 5, at 233; Ausness, supra note 4, at 431.
120. See TEX. WATER CODE ANN. § 11.147(d), (e) (West 1988).
121. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 45.
122. Since surface water is held in trust for the public welfare, the state has the general power to place restrictions on water uses to protect instream flow needs. See TEX. WATER CODE ANN. § 11.021 (West 1988).
123. See DEWSNUP & JENSEN, supra note 70, at 7-8, 36-37.
124. A threefold test is used to determine navigability: (1) is the river presently being used, or is suitable for use, or, (2) has it been used or was it suitable for use in the past, or (3) could it be made suitable for use in the future by reasonable improvements. See Rochester Gas & Electric Corp. v. FPC, 344 F.2d 594, 596 (2d Cir.), cert. denied, 382 U.S. 832 (1965); City of Centralia v. FERC, 851 F.2d 278 (9th Cir. 1988).
125. Butler, supra note 4, at 338.
126. Ausness, supra note 4, at 433.
127. For a discussion in Texas see RALPH WURBS ET. AL., TEXAS WATER RESOURCES INST., RESERVOIR/RIVER SYSTEMS RELIABILITY CONSIDERING WATER RIGHTS AND WATER QUALITY (1994).
128. See WYO. STAT. ANN. § 41-2-112(a) (Michie 1997).
129. See COLO. REV. STAT. ANN. § 37-92-103(4) (West 1990); MONT. CODE ANN. § 85-2-316(5) (1997); WYO. STAT. ANN. § 41-3-1006 (Michie 1997).
130. See Matthew Reynolds, Comment, Wyoming's New Instream Flow Act: An Administrative Quagmire, 21 LAND & WATER L. REV. 455, 456-57 (1986).
131. For example, the permit authorizing the Lake Texana Dam and Reservoir was issued subject to "the release of water for the maintenance of the Lavaca-Matagorda Bay and Estuary System," as determined by the Commission. See TEXAS WATER RIGHTS COMM'N PERMIT NO. 2776 (1972).
132. The conservation storage of new, on-channel water supply reservoirs would be divided into three zones with provisions for varying levels of instream flows downstream of the project. Zone 1 occurs when reservoir levels are greater than 80 percent of storage capacity and inflows will be released up to the monthly medians, calculated with naturalized stream flow estimates. Zone 2 occurs when reservoir levels drop to between 50 and 80 percent of capacity and inflows will be released up to the monthly 25th percentile flows. For zone 3, when reservoir levels drop below 50 percent storage capacity, inflows would be passed up to the established water quality standard for the downstream river segment. See Consensus Water Planning, supra note 10, at 4.
133. Unappropriated water and other water of the state permitted to the TWDB and stored in any facility under control of the Board may be released without charge to relieve any emergency condition arising from drought or other circumstance. These emergency releases could be used to provide water for instream uses and beneficial inflows for bays and estuaries. The Parks and Wildlife Department may petition the Commission to request such instream flow releases. See TEX. WATER CODE ANN. §§ 15.325, 16.195 (West 1988).
134. See TEX. WATER CODE ANN. § 16.195 (West 1988).
135. See Harbison, supra note 4, at 536; John Leshy, Instream Flow Rights: The Private and Public Rights, in AMERICAN LAW INST. & AMERICAN BAR ASSOC., WESTERN WATER LAW IN THE AGE OF REALLOCATION 171 (1991).
136. See Sherton, supra note 4, at 412-14; Harbison, supra note 4, at 570.
137. A. Dan Tarlock, Future Issues in Instream Flow Protection in the West, in INSTREAM FLOW PROTECTION IN THE WEST 8-8 (Lawrence MacDonnell & Teresa Rice, eds., rev. ed. 1993).
138. Id. at 8-7 to 8-8.
139. See Tarlock, supra note 5, at 211.
140. See, e.g., COLO. REV. STAT. § 37-92-102(3) (1988); WYO. STAT. ANN. § 41-3-1009 (Michie 1997). Wyoming views itself as a market participant rather than a sovereign when using its environmental permits; eminent domain is only permitted for municipal purposes. WYO. STAT. ANN. § 41-3-1013 (Michie 1997). In California, Montana and Oregon condemnation powers have been granted for river protection. OR. REV. STAT. § 390.845 (Supp. 1996); MONT. CODE ANN. § 87-1-209 (1997); CAL. WATER CODE § 11580(West supp. 1997).
141. See TEX. WATER CODE ANN. § 11.033 (West 1988) (All political subdivisions of the state and constitutional governmental agencies exercising delegated legislative powers have the power of eminent domain to be exercised as provided by law for domestic, municipal, and manufacturing uses and for other purposes authorized by this code, including the irrigation of land for all requirements of agricultural employment).
142. See TEX. WATER CODE ANN. § 11.033 (West 1988).
143. To commence such action, the state agency can initiate forfeiture or abandonment proceedings against the water right holder. Forfeiture involves the loss of rights to use water where an appropriator fails to make beneficial use of the water for a statutorily-defined period (e.g. five years). Although similar, abandonment involves an intentional relinquishment or surrender of water rights. The two doctrines, moreover, can serve as protection against speculation. A problem arises with those cases which go beyond administrative hearings and into the courts: not only will the state incur costs associated with litigation, but the courts have been reluctant to take water rights away from those who have not used them. See SAX, ET AL., supra note 4, at 271-86.
144. It is the legislature's clear intention that water not put to a beneficial use is to be considered not appropriated. TEX. WATER CODE ANN. § 11.025 (West 1988). The right to use an appropriation of state water can be forfeited, and the water is subject again to appropriation if the appropriation is "willfully abandoned during any three successive years." Id. Moreover, a permit may be canceled in whole or part if all or part of the water has not been put to beneficial use during any ten year period. Id., at § 11.173. See also 30 TEX. ADMIN. CODE § 297.73 (WESTLAW through March 28, 1997). In addition, a new permit for appropriation may be canceled in whole or part if no action is taken by the time specified in the permit or a maximum period of two years. TEX. WATER CODE ANN. § 11.146 (West 1988); 30 TEX. ADMIN. CODE § 297.47 (WESTLAW through March 28, 1997).
145. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 74-75. The TNRCC should be aware of permit holders who are not putting all or part of their appropriation of state waters to beneficial use. The legislature has explicitly directed the Commission to evaluate outstanding permits and certified filings and cancel those permits which are subject to cancellation. As part of this directive, appropriators are required to submit annual reports to the Commission See TEX. WATER CODE ANN. §§ 11.031, 11.032 (West 1988); see also 30 TEX. ADMIN. CODE § 295.202 (West 1997).
146. See Ronald Kaiser, Texas Water Marketing , supra note 68 at 254;
147. OFFICE OF THE STATE AUDITOR OF TEXAS, SAO REPORT No. 3-081, TEXAS WATER RESOURCES MANAGEMENT: A CRITICAL REVIEW 25 (1993).
148. TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 75.
149. See Davis, supra note 4.
150. 33 U.S.C. § 1251 (1997), Pub. L. No. 95-217, 91 Stat. 1567.
151. See Davis, supra note 4; Sherton, supra note 4, at 399.
152. Leshy, supra note 116 at 166.
153. SAX ET AL., supra note 4, at 273-86.
154. See Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 473, 478 (1970).
155. See Martin v. Waddell, 41 U.S. (16 Pet.) 367 (1842); Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Barney v. City of Keokuk, 94 U.S. 324 (1876).
156. Illinois Cent. R.R. v. Illinois, 146 U.S. 387 (1892).
157. Nat'l Audobon Soc'y v. Super. Ct. Alpine Cty., 658 P.2d 709, cert. denied, 464 U.S. 977 (1983).
158. Id. at 728-29.
159. Id. at 732.
160. See Montana Coalition for Stream Access v. Hildreth, 684 P.2d 1088 (Mont. 1984), overruled on other grounds; Montana Coalition for Stream Access v. Curran, 682 P.2d 163 (Mont. 1984).
161. See Kootenai Envtl. Alliance, Inc. v. Panhandle Yacht Club, Inc., 671 P.2d 1085 (Idaho 1983); Shokal v. Dunn, 707 P.2d 441 (Idaho 1985).
162. See J.J.N.P. Co. v. Utah ex rel. Div. Wildlife Resources, 655 P.2d 1133 (Utah 1982); Caminiti v. Boyle, 732 P.2d 989 (Wash. 1987), cert. denied 484 U.S. 1008 (1988); United Plainsmen Assoc. v. North Dakota State Water Conservation Comm'n, 247 N.W. 2d 457 (N.D. 1976).
163. See, e.g., Motl v. Boyd, 286 S.W. 458 (Tex. 1926); Diversion Lake Club v. Heath, 86 S.W.2nd 441 (Tex. 1935).
164. See e.g. Lorino v. Crawford Packaging Co., 175 S.W.2d 410 (Tex. 1943); City of Galveston v. Mann, 143 S.W. 2d 1028 (Tex. 1940).
165. TEX. WATER CODE ANN. § 11.021 (West 1997).
166. Butler v. Sadler, 399 S.W.2d 411, 415 (Tex. Civ. App. - Corpus Christi 1966, writ ref'd n.r.e.).
167. See Diversion Lake, 85 S.W.2d at 448-49.
168. The model is a modified version of the Instream Flow Incremental Methodology (IFIM). See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 42.
169. Id. at 73-78.
170. A nomination process was used to select individual respondents from the target groups. Potential respondents were identified and chosen in part based on participation in the state's consensus water planning meetings. In order to minimize representativeness and data distortions an effort was made to seek nominations from a relatively large and diverse set of target group members.
171. Although river authorities, water districts, and municipalities are political subdivisions of the state, they control large amounts of water and sell it to smaller appropriators. As such, it was thought that inclusion of the group would accommodate the instream flow strategy preferences of direct consumers of the water resource.
172. All interview and questionnaire data is on file with the authors.
173. For the state agency group, 12 interviews and surveys were completed; 9 interviews were conducted and 7 surveys were returned by water rights holders; and 7 interviews and surveys were completed by the interest groups.
174. While informed minds make informed decisions, the solutions differ. Stakeholders are making informed decisions based on their different interests in the allocation of water among competing interests. Since the stakeholders represent regulatory, managerial and environmental interests, their solutions reflect these interests.
175. Data from the questionnaire comprised the quantitative aspect of the study and was analyzed through descriptive statistical procedures. Descriptive statistics are used to classify and summarize response frequencies. Measures of central tendency and variations among responses can be used to describe the data. The measure of central tendency used in this study was the median. With such a small sample size, the median is the appropriate measure. For a discussion of descriptive statistics see DENNIS E. HINKLE ET AL., APPLIED STATISTICS FOR THE BEHAVIORAL SCIENCES 18 (1994).
176. The following study limitations should be recognized. The respondents views are not necessarily the views of the agency or stakeholder group. This study specifically sought the "experts" who would be at the forefront of decisionmaking and policy formulation. It did not seek a representative sample of all possible stakeholders.
177. Confidential interview with a state official in Austin, Tex. (Apr. 16, 1996).
178. All respondents recognized this as a management issue.
179. Except for one respondent who thought that the Trinity River had major instream flow problems, no other stakeholder identified instream flow needs for East Texas Rivers.
180. See Raymond Mathews and Yixing Bao, The Texas Method of Preliminary Instream Flow Assessment, 2 RIVERS 295, 300 (1991).
181. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 26.
182. Confidential interview with an aquatic biologist in Austin, Tex. (Apr. 22, 1996).
183. Other basins or areas mentioned were the Brazos River Basin, the Corpus Christi area, the Sabine River Basin, the Nueces River Basin, and the Blanco River Basin. One respondent said every river that drains into the Gulf of Mexico is problematic, while two respondents did not feel knowledgeable enough to give an informed answer. The Rio Grande River Basin was mentioned by some respondents, and most of these respondents essentially had no hope of instream provision in this basin. Supra note 152.
184. The conservation storage of new, on-channel water supply reservoirs would be divided into three categories with provisions for varying levels of instream flows downstream of the projects. Category 1 occurs when reservoir water levels are greater than 80 percent of storage capacity and water for inflows will be discharged at a rate up to the monthly medians, calculated with naturalized daily stream flow estimates. Category 2 occurs as dry conditions drop reservoir levels to between 50 and 80 percent of storage capacity. In this category, water for inflows would be discharged only up to the monthly 25th percentile flow values, calculated with naturalized daily stream flow estimates. In category 3, when drought conditions drop reservoir levels below 50 percent storage capacity, water for inflows would be discharged to meet the established water quality standard (7Q2 value published by TNRCC) for the downstream segment. See Consensus Water Planning, supra note 10.
185. Since 1985 the TNRCC has imposed conditions on new or amended water rights permits to include considerations for instream flows. Most appropriations in Texas were made before instream flow criteria were inserted into the permit process, and the burden of providing instream flow protection will only be borne by a relatively few rights holders. See TEX. WATER CODE ANN. § 11.147 (West 1988).
186. Confidential interview with state water agency administrator in Austin, Tex. (Apr. 16, 1996).
187. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 75
188. Concerns expressed by stakeholders from all groups, even the regulatory group, recognized the need for a basin-specific approach. Supra note 152.
189. See TEX. WATER CODE ANN. § 15.701-15.708 (West Supp. 1997).
190. See 31 TEX. ADMIN. CODE §359 (WESTLAW, through March 28, 1997).
191. See TEXAS WATER DEV. BD., A REPORT TO THE GOVERNOR AND MEMBERS OF THE TEXAS LEGISLATURE CONCERNING THE TEXAS WATER BANK (1995).
192. See MACDONNELL, supra note 94, at 4-79.
193. Other limitations on the Bank include depositor fears about placing their right(s) in the Bank because of uncertainty of how much water they will receive when they withdraw their right (e.g. through partial or full cancellation or a percentage set-aside). Three individuals said, however, that the Bank, as it is structured presently, only appears to prevent cancellation. One person, moreover, mentioned that the restriction of only depositing 50% of one's water right into the Bank is a major hindrance to participation. Finally, one respondent said the Bank will become more active only when water in Texas is exchanged on a market-price basis, rather than a cost of service basis. Supra note 152.
194. TEX. WATER CODE ANN. § 11.134(b)(2) (West 1988) provides that the Commission may grant an application for a new or increased appropriation if there is sufficient unappropriated water available in the river. Available water is the amount remaining in the river after taking into account complete satisfaction of all paper and vested water rights valued at their fully authorized levels. See Lower Colo. River Auth. v. Tex. Dep't of Water Resources, 689 S.W.2d 873 (Tex. 1984).
195. There is no water available for new appropriations [rivers are fully appropriated] in stretches of the Canadian, Red, Cypress, Sabine, Neches, Trinity, Brazos, Colorado, Guadalupe, San Antonio, Nueces and Rio Grande rivers. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 26.
196. This is a variant of importance-performance analysis developed for use in marketing. See James A. Martilla & John C. James, Importance-Performance Analysis, 41 J. MARKETING, Jan. 1977, at 77.
197. These strategies are outlined in Section III. Supra notes 42-147, and accompanying text.
198. For purposes of this study, 'preferences' refers to respondents' ideal choice(s), with all things being equal. 'Feasibility' refers to the viability or possibility of implementing these choices, considering such things as legal, political, economic, and/or social constraints and costs.
199. We used the Kruskal-Wallis nonparametric procedure (the parametric analog is the one-way analysis of variance F test). This test is applicable for three or more samples, and the null hypothesis tested is that the population distributions from which the samples were selected are the same. In analyzing the median "scores" given by the state agency, interest/citizen, and rights holder/water supplier stakeholder groups, it appears that there are no statistically significant differences among the groups in the strategies they selected for fully appropriated streams. For a discussion of this statistic see generally HINKLE ET. AL., supra note 155, at 102-24.
200. Respondents were neutral on preference and feasibility for both flow augmentation mechanisms and the public trust doctrine. Reservoir storage releases, while opposed by the sample as a whole, are questionable with respect to feasibility implementation. Conversely, two strategies located in the lower-left quadrant, condemnation and navigability definitions, were opposed and thought to be infeasible for implementation. Supra note 152.
201. Respondents in this study were presented a number of strategies that could be used to establish and preserve instream flows in Texas. Although there are many more strategies which the state can utilize, those presented were thought to be the most feasible in the state.
202. It is the legislature's express intention that water not put to beneficial use is considered not appropriated. See TEX. WATER CODE ANN. § 11.025 (West 1988).
203. The Kruskal-Wallis test detected significant differences, at the alpha= .05 level, among stakeholder group responses for (1) preference for navigability definitions (chi-square 7.657, d.f. 2, sig. .022); and (2) feasibility for reservoir storage releases (chi-square 7.086, d.f. 2, sig. .029). On preference for navigability definitions, the groups that were found to be statistically different were the interest/citizen group and the rights holder/water supplier group (test statistic 9.33, critical value 8.62). Differences regarding the feasibility for reservoir storage releases on non-fully appropriated streams were found between the state agency group and interest/citizen group (test statistic 9.29, critical value 8.59). Supra note 152.
204. The zoned approach for water releases from new reservoirs recently approved by the TNRCC, TWDB and TPWD is a belated attempt to follow this model. See Consensus Water Planning, supra note 10, at 4.
205. Indeed, one manifestation of this is the TNRCC recalcitrance to institute cancellation proceedings of unused or nonbenefically used water rights. See TNRCC, REGULATORY GUIDANCE DOC., supra note 8, at 75.
206. It would be naive to suggest that political forces do not insert themselves into the policy process. Likewise, it would be carefree to assert that agency personnel are immune to these forces. Perhaps the change that is called for is a political one and must originate in the legislature or the governor's office.