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Water Rights

Overview

Water rights are complex, vary from region to region, and are the subject of considerable litigation. As such, this toolbox contains general information and available resources, but cannot include all the details needed for a full understanding of the subject. You will need to work with a water rights expert, and legal counsel, to resolve water rights issues. Wilderness water rights training is available for free online.

The importance of water to wilderness character is not specifically addressed, but is implied in the Wilderness Act of 1964. Section 4(b) of the Act states "each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area" Wilderness character is described in the definition of wilderness found in Section 2(c) of the Wilderness Act, which identifies five qualities. These are Untrammeled, Natural Quality, Undeveloped, and Outstanding Opportunities for Solitude and a Primitive and Unconfined type of Recreation, and Other Features of Value (Landres et al. 2015). Preserving these five qualities preserves wilderness character as a whole, and because water touches each of these qualities, preserving water is essential.

Water provides the building blocks on which flora and fauna depend, and this in turn contributes to the uniqueness of each wilderness area. The forces of water shape the topography and create scenic and recreational opportunities found in a given wilderness. The water resource touches all five qualities of wilderness character. Perhaps the importance of water to wilderness goes without saying, but at least one court stated: "It is beyond cavil that water is the lifeblood of the wilderness areas. Without water, the wilderness would become deserted wastelands. In other words, without access to the requisite water, the very purposes for which the Wilderness Act was established would be entirely defeated" (Sierra Club v. Block, 615 F. Supp. 44 (D. Colo. 1985)).

In order to protect water rights for wilderness, agencies must be able to articulate that the purpose for which Congress designated wilderness can only be achieved through the protection of a specified quantity of water. Consequently, we will focus on the untrammeled and natural qualities of wilderness character, which are most closely linked with the need to maintain water rights in wilderness.

The Untrammeled Quality of Wilderness Character is described by the Wilderness Act in Section 2(c) in this way: "A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man..." The word untrammeled places unique restrictions on wilderness managers, requiring the wilderness ecosystem to be self-willed--that is, the conditions found in wilderness derive from natural processes rather than intentional human manipulation. Keeping it Wild 2 provides a working definition of the untrammeled quality, which is summarized as: Wilderness ecological systems are unhindered and free from intentional actions of modern human control or manipulation.

This principle applies to water resources as well as other biophysical resources. Examples of manipulation of water resources which would degrade the untrammeled quality include diversion of water, pooling of water in reservoirs, or cloud-seeding to increase the amount of rainfall.

The Natural Quality of Wilderness Character includes physical and biological resources. The Wilderness Act in Section 2(c) describes it in this way "...; retaining its primeval character and influence...", and "...; protected and managed so as to preserve its natural conditions ..." These statements mean that physical and biological functions and processes are in a condition that is not influenced by intended or unintended effects of modern civilization (Landres et al. 2008:5). Though change in natural ecosystems is essential, that change should only be minimally the result of modern civilization. Water in the wilderness is natural when its volume and timing in flow are unaltered by human activity.

Water Rights Doctrines

There are two primary water rights allocation systems in the US: the Prior Appropriation Doctrine and the Riparian Doctrine. Although they are implemented somewhat differently from state to state, they can be summarized by some general principles. It is important to know how water is appropriated for your wilderness.

Prior Appropriation Doctrine 

The majority of wilderness areas are in the western United States where the Prior Appropriation Doctrine is applied, and so most wilderness managers need to be familiar with this system. This system of water appropriation developed in the west where water is generally scarce. The basic principles of Prior Appropriation include:

  • The right to make use of water is based on diverting the water and applying it to a recognized "beneficial use."
  • Water rights are separate from the land and can be sold separate from the land.
  • The right to the use of water is based on who first used it. The first to use the water has the priority to its use thereafter and use cannot be interfered with by a junior water right owner.

Riparian Doctrine

Wilderness areas in the eastern United States fall under this system. This system developed in England, and was applied to the eastern United States where water is generally plentiful. The basic principles of the Riparian Doctrine include:

  • The right to make reasonable use of water by all landowners whose properties include or adjoin a body of water.
  • Water rights are appurtenant (belonging) to the land and, except under limited circumstances, are not sold or transferred other than with the associated land.
  • Water use by any one landowner cannot interfere "unreasonably" with another riparian landowner's lawful use of water.
 

Basis in the Wilderness Act

Water issues are addressed directly in two places in the Wilderness Act.

  • Section 4(d)(4)(1) creates Presidential authority to authorize water projects.

"Within wilderness areas in the national forests designated by this Act, (1) the President may, within a specific area and in accordance with such regulations as he may deem desirable, authorize prospecting for water resources, the establishment and maintenance of reservoirs, water-conservation works, power projects, transmission lines, and other facilities needed in the public interest, including the road construction and maintenance essential to development and use thereof, upon his determination that such use or uses in the specific area will better serve the interests of the United States and the people thereof than will its denial."

  • Section 4(d)(6) provides a statement on state water laws.

"Nothing in this Act shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from State water laws."

Neither of these statements provide much guidance for water rights. The former addresses installations allowed to develop water resources. The latter states that status quo applies in regard to water rights. On the first read, Section 4(d)(6) is not an easy sentence to understand. Because it is listed in the Special Provisions section, many assume it is excepting water rights from wilderness designations. In fact, the provision neither creates nor denies an exemption from state water law. It does not necessitate a state issued water right nor assert that one is not required. It does not expressly reserve a federal water right, or forgo the establishment of a federal water right. The provision merely maintains the status quo, which is that a federal reservation (such as a wilderness area) reserves the water necessary to accomplish the purposes of the reservation (while not affecting previously established water rights). In considering water's relationship to federal reservations, the Supreme Court has determined that federally reserved water rights exist for all federally reserved public lands, in a quantity sufficient to support the purpose of the federal reservation. The purpose of the wilderness designation is to preserve wilderness character.

What is the specific quantity of water needed for the purpose of a wilderness reservation? To understand the extent of water rights in wilderness, look at two other parts of the Wilderness Act, though neither of these sections specifically mentions water or water rights:

  • Section 4(c) affirms that the Wilderness Act is "subject to existing private rights" held prior to wilderness designation.
  • Section 4(b) establishes the mandate for "preserving the wilderness character of the [Wilderness] area."

Subjecting wilderness designation to existing private rights means any water rights existing prior to the designation of a wilderness area continue unaffected. Some wilderness areas will start their protected status with less water than would naturally occur there. Preserving wilderness character, however, means that the water not already allocated by a prior existing right must be protected. See the Overview section for a discussion on preserving the untrammeled and natural qualities of wilderness character.

Enabling statutes for individual wilderness areas may contain unique provisions for the areas addressed. Though not all enabling statutes address water rights, there may be provisions that 1) create an express federal reserved water right to preserve wilderness character (as compared to the Wilderness Act which results in an implied federal reserved water right); 2) explicitly forgo the creation of an express or implied federal reserved water right; 3) direct the agency to appropriate water rights under State Law; or, 4) state that other existing federal water rights are not affected by the statute.

Case Law (Water Rights)

 

When should I be concerned about water rights for my wilderness?

Protecting water in the wilderness is always important, but some wilderness areas are more susceptible to degradation caused by a change in water use on surrounding lands. The below list can help you understand when your wilderness may be at risk, and where to make water rights work a high priority.

Wilderness areas at the top of the watershed typically are at low risk of water rights issues. If there is a water right to a stream originating in a wilderness (which is almost always the case) the water right is fulfilled downstream and outside the wilderness. Only in the case where an existing diversion point or impoundment is located in the wilderness will the exercise of a water right impact a wilderness at the top of the watershed.

Wilderness areas low in the watershed and where upstream development is present or likely are at the greatest risk of being degraded by water rights issues. The wilderness may be impacted by a decrease of water generally, a decrease of peak flows, and or an increase of water seasonally (where rivers would have had very low flows in dry season, they maintain higher flows as reservoirs release water). Of greatest significance is where the wilderness is downstream of communities or other places where large amounts of water use occur.

Groundwater withdrawals occurring in aquifers that supply water to springs and seeps within wilderness areas have the potential to impact those water sources, especially with water withdrawal close to the wilderness water source. Groundwater pumping may have the effect of reducing flow, or even drying a spring up altogether. If monitoring reports available through the USGS, state, or county indicate the aquifer is being rapidly diminished, the wilderness is particularly at risk. This situation may become more common as a major area of interest for new sources of water is the aquifer.

Wilderness areas that have existing conveyance or storage facilities within them may be subject to changes in water management that further degrade wilderness character. Water management considerations well away from the wilderness could lead to changes in the timing of water storage and release in the wilderness, and those changes could conflict with the water timing needs of species within the wilderness. For example, dam discharges in the fall rather than in the summer when fish need greater quantities of water. Another consideration is the need to assure facilities are properly maintained. If a facility fails, enormous damage to the ecosystem may occur. Note that new diversion points, or conveyance or storage facilities are not allowed in wilderness (without special legislative or presidential authority).

It is important to understand if the surface water or an aquifer is fully utilized and, in the case of an aquifer, if it is being rapidly diminished. A highly-developed basin will create more threats to the wilderness. A common error by many agency staff is to focus exclusively within the wilderness. Water uses and proposals throughout the basin can have an effect on the wilderness, and so it is necessary to monitor state filings for new water rights or changes to existing water rights. It is important to be aware of new demands for water -- new agricultural fields, power plants (for example, solar plants require a lot of water), expanding communities, or oil and gas development that uses water for fracking, to name a few. New farming irrigation developments may be unlikely, but water rights for existing irrigation may be changed to new beneficial uses and may include changes to the diversion point or time of use that could degrade the wilderness. Be aware of flood control issues where storm water impoundment above the wilderness may be proposed. Water speculation is a more recent and frequent occurrence whereby applications for water rights are made with the purpose of transporting water to areas of high demand, even hundreds of miles away outside the basin.

Since streams are easier to access and have larger amounts of water available, they tend to be utilized more often than springs. Consequently, if not all water sources can be addressed, and if groundwater development in the basin is not a major threat, forgo work on spring water rights in favor of stream-based water rights.

A small percentage change in flow to a small stream or river can have a greater effect on ecosystem conditions than the same percentage change to a large stream or river. However, keep in mind that large rivers are the most likely to be manipulated by human activity for all the reasons above. They tend to be highly altered and regulated, which prevents them from fluctuating and interacting with their floodplain.

Consider the priority date of the wilderness-related federal reserve water right as well as any other earlier federal reserved water right that overlays the wilderness. For newly designated wildernesses, if there is not an earlier priority date from an overlying federal reservation, the wilderness-related federal reserved water right may be so junior a water right as to not be useful in safeguarding water for the wilderness. Under these circumstances the unit needs to keep abreast of opportunities to acquire previously existing water rights, when available, and still assure that the junior federal reserved water right is quantified, as this maintains a position from which to comment during any water rights issues that later come up.

Conflicts may intensify in the face of a changing climate, especially when combined with ever-increasing demand for water to support growth and development. It is difficult to predict how precipitation will change in a given wilderness, but where there are predictions that climate driven water shortages may occur in the region, identifying water rights in the affected wilderness areas should be prioritized.

Water Storage and Conveyance Facilities in Wilderness

There may be facilities such as dams, ditches, pipelines, tunnels or other facilities associated with water rights in wilderness. However, a common misconception is that if an individual holds a state-issued water right, he/she is entitled to new or expanded facilities in wilderness to make use of the water right. On the contrary, the presence of a water right allows for water use, but it does not create a right to construct or maintain water diversion, conveyance, or holding facilities. In fact, even preexisting water facilities are prohibited by section 4(c) of the Wilderness Act, unless a special provision in law or a valid existing right provides for them. See the Inholding and Other Conveyances toolbox for information about managing rights-of-ways.

A person may obtain a water right for water originating in a wilderness, but to exercise that right, they would only be allowed to construct diversion infrastructure outside, or downstream of, the wilderness. Diversion infrastructure for a stream flowing into wilderness is the concern in preserving wilderness character, as that infrastructure can be built upstream, and outside of, the wilderness. Under this situation, a wilderness water right is critical to maintaining water flow into wilderness.

Rights-of-way for water storage or conveyance facilities do exist in wilderness. Historically, the United States granted rights-of-ways under several different statutes. Such statutes have expired or have been repealed so new rights are not allowed in wilderness, but rights previously granted remain valid unless abandoned or forfeited. For any right-of-way, it is important to identify the rights granted, and prevent activity that exceeds those rights.

Section 4(d)(4)(1) of the Wilderness Act gives authority to the President to authorize new water related facilities in wilderness. This authority can only be exercised by an express authorization from the President. In doing so, sufficient analysis would be required to demonstrate that the facilities would better serve the interests of the United States than would continuing to preserve wilderness character. No President has ever exercised this authority.

When they do exist in wilderness, water conveyance and storage facilities require regular maintenance and inspections. If the facility is not maintained and operated properly it could fail causing severe damage to the wilderness and a hazard to the safety of persons downstream. The owner of the facility is responsible for maintenance and operation of the facility. The federal land management agency is responsible for assuring that the maintenance and operation of the facility is consistent with authorizations, and to assure that wilderness resources and visitors are protected. States may have their own laws and regulations for facilities which must be complied with by the facility owner, where not in conflict with federal law or regulation. Where rights-of-ways exist in wilderness, assure that their operation does not exceed the terms and conditions specified in the right-of-way, and that inspection and maintenance occurs at intervals proper for maintaining safety.

Water cannot be diverted into wilderness to drain or dispose of excess water occurring on adjacent property without a flowage right-of-way or similar legal right established prior to wilderness designation. This situation may occur with wilderness areas adjacent to agricultural lands.

Actions Wilderness Staff Can Engage In

Claiming a given quantity of water for wilderness preservation is a process requiring the involvement of hydrologists, wilderness specialists, biologists, legal counsel, and other staff. Though the work is generally the realm of the agency's hydrologists, water rights specialists, and federal attorneys, there's a lot of work to be done, and other staff can help carry out parts of the work. Indeed, wilderness specialists can play a vital role in identifying wilderness needs and carrying out some monitoring functions. Because securing water rights is a specialized process that takes place in judicial proceedings, any work a wilderness specialist does must be under the oversight of a qualified hydrologist. Consider working with the hydrologist in the following tasks:

  • Inventory of water sources
  • Identifying the water rights created by wilderness enabling legislation
  • Prioritizing the places that most need water rights attention
  • Quantifying the amount of water present in springs and streams
  • Monitoring to assure the federal water right is fulfilled
  • Monitoring facilities in the wilderness to assure they are compliant with right-of-way terms

Case Studies in Preserving Wilderness Character

Resources and References

The USGS provides a number of valuable resources on water monitoring:

The Springs Stewardship Institute maintains a user updated database of springs across the western U.S. 

The Forest Service has developed two published, comprehensive protocols for inventorying and characterizing groundwater dependent ecosystems.

The National Park Service provides information on managing scientific data.

Other resources:

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