A Senior Thesis By Kyle B. Jackson Under the Advice of J. Michael Jess

Instream Flows Purpose Water flows necessary to sustain one or more use within the stream channel Protection Encompasses the array of methods employed to protect water in a stream channel for a stated purpose Program The institutional entities and bodies of rules, laws, and statutes that govern instream flow protection (Gillian & Brown 1997)

Literature ReviewData CollectionCategorizationAnalysis Methods

Sources Academic Journals Natural Resource Management Contacts Agency staff Government Reports Bureau Land Management State Statutes State Government Websites

Limited Water Resources Have Instream Flows Prior Appropriation Diverse Geography, Demographics

Date, how it was established Changes that were made Establishment Methods of streamflow protection Tools in Use Involved agencies The role of each agency Participants & Process Unique policy or characteristic or program Notable Feature Description of State Programs

1973, state statute Removed diversion requirement Establishment Instream Flow Right Transfers, leasing, any contractual agreement Tools in Use Related agencies, recommend Colorado Water Conservation Board, applies and holds Water Courts, approve Division of Water Resources, administers Participants & Process CWCB active role in obtaining water rights, holds once a year conference Notable Feature Colorado

Kansas 1981, state statute Created “Minimum Desirable Sreamflows” Establishment Minimum Desirable Streamflows (MDS) Transfers, allow for flows to be retired Tools in Use Kansas Water Office, initiates collaboration Legislature, approves Division of Water Resources, administers Participants & Process 23 streams have MDS status, however, none have been granted since 1990 Notable Feature

Montana 1969, “Murphy Rights” laws 1973, state statute Created flow reservation system for many different uses Establishment Reservations Transfers, leasing Tools in Use Any state or federal entity, applies for and holds Board of Natural Resources and Conservation, approves and administers Participants & Process Reservation rights are for many different uses: irrigation, municipal growth, water quality, etc. Reviewed every 10 years Notable Feature

Nebraska 1984, state statute Recognized Instream Flow Rights Establishment Instream Flow Rights Transfers, ability to lease Tools in Use Game and Parks Commission and Natural Resource District, applies for and holds Department of Natural Resources, approves and administers Participants & Process Reviewed every 15 years Notable Feature

New Mexico 1998, Attorney General Opinion Allowed for instream flows to be a beneficial use Establishment Transfers Tools in Use Office of State Engineer, administers Any entity or individual, transfers Participants & Process Was for only one particular instance, there is not a “program” established Notable Feature

Oklahoma 1995, comprehensive water plan study No further progress has been made Progress to Date

South Dakota 1984, South Dakota Supreme Court Ruling recognized that instream flows were a “beneficial use” Establishment Instream Flow Rights Transfers Tools in Use Any state or federal entity, holds and recommends Water Management Board with Chief Engineer, approves Department of Environment and Natural Resources, administers Participants & Process Statutes do not expressly identify instream flow rights Notable Feature

Texas 1985, Added instream flows on to “Beneficial Use” list 2001, Brought agencies together to develop ISF rights 2007, Created review committees Establishment Conditions applied to new permits Transfers Tools in Use Texas Commission on Environmental Quality, reviews Advisory Committees, set environmental conditions Participants & Process While ISF rights do not exist, administrative review still protects river ecosystem Notable Feature

Wyoming 1986, statutory Added protection and maintenance of fisheries habitat on “Beneficial Use” list Establishment Instream Flow Right Transfer Tools in Use Game and Fish Department, recommends Water Development Commission, applies and holds State Engineer, approves and administers Participants & Process Fisheries habitat is only use applicable for ISF rights Notable Feature

A Policy that Protects Ecosystem Health Why is this specific policy important? How will the stream be impacted? Which states do and do not have this policy?

Beneficial Use Must first be recognized Is created for specific purpose: fish & wildlife habitat, aquatic creatures, water quality Needs to be diverse Wyoming Only fisheries habitat Kansas Fish, wildlife, other aquatic, water quality

Transferability Ability to go from consumptive to non-consumptive Occurs through contractual arrangements or conversions “Line” for resources is long, ISF near the back Means for ISF to become senior Kansas Only for purpose of retiring flows in basins Colorado, Montana Any contract agreement – lease, gift, purchase, etc.

Nebraska, Montana 15 years, 10 years Other states Do not have review requirement Permanence Ability to stay and protect river Habitat needs are ongoing and perpetual Review process poses ability to lose protection

Agency Responsibility Who can hold a right, approve, and protect Agency pursuing a right should be active in doing so Agency responsible for protection should do so To achieve, build interagency relationships Other states Either lack enforcement or pursuing rights Colorado CWCB, very active in pursuit and protection

Conclusion Many comparisons and contrasts among states Diverse uses, ability to become senior, permanent, active administration Continue to evolve, must continue to promote policies that protect

“About Us.” Oklahoma Water Resources Board. 11 September March Charney, Sasha. "Decades Down the Road: An Analysis of Instream Flow Programs in Colorado and the Western United States." Colorado Water Conservation Board "Draft Proposals for Stream Water." Oklahoma Water Resources Board “Environment and Natural Resources.” Water Rights Division, South Dakota Department of Natural Resources. Chapter March “Instream Flow Filings.” Wyoming Water Development Commission. March March “Instream Uses Program.” Texas Commission on Environmental Quality. 14 January March Kaiser, RA. "Untying the Gordian Knot: Negotiated Strategies for Protecting Instream Flows in Texas." Natural Resources Journal. Vol. 38: McKinney, Matthew. "Instream Flow Policy in Montana: A History and Blueprint for the Future." Public Land Law Review. Vol Neuman, Janet. "Beneficial use, Waste, and Forfeiture: The Search for a True and Lasting Relationship with the Land." Environmental Law. Vol. 28: "Programmatic Work Plan." Oklahoma Water Resource Board, Oklahoma Comprehensive Water Plan Rath, Mark. South Dakota Department of Environment and Natural Resources. 19 March Thomas, A.C. and D.D. Paul. "Water Management Unit Five-Year Plan; 2006 to 2010." Zuerlein, Gene. "Remember our rivers! An overview of instream flows in Nebraska." Prairie Fire. August Works Cited

Mike Jess Ann Bleed Bob Kuzelka Erin Frank Acknowledgments