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Improving Riparian Protection by Linking State Programs 1
Michael Mantell, Philip Metzger, and Christine Reid 2
Abstract.--All elements of the riparian setting-river flow, flora and fauna--are essential to maintain healthy riparian ecosystems.
Yet the few state
legal and institutional regimes to protect riparian
habitats and streamflows are fragmenmented.
Protection programs must be made more effective, better
coordinated, and informed by more complete data.
Riparian plants and animals are an important
component of riverine ecosystems. They enhance
water quality and aquatic habitat, protect against
erosion,· and provide food and nesting areas for a
host of important species.
The importance of riparian habitat, however,
has not been reflected in state legal and administrative initiatives. Only a few tax incentives
and wetland protection schemes have been adopted to
protect riparian habitat. States throughout the
country have developed a broad array of measures to
protect instream flow, flood-prone lands and scenic
rivers, and some incidental benefits accrue to
riparian habitat through these initiatives. But
most if not all such protection measures give inadequate attention to the relationship among flow
levels, land uses, and riparian habitat -- in other
words, to the fact that a combination of land and
water resources is necessary to sustain riparian
ecosystems. Riparian habitat largely has fallen
through the cracks of state resource programs.
While the federal government has taken a variety of steps-- for example, by designating parks,
wildlife ·refuges, and scenic rivers, regulating
wetlands and water quality, and protecting reserved
water rights and endangered species--to protect
riparian lands and water resources, this paper
looks at state initiatives, which ultimately will
be central to safeguarding riparian habitat. State
instream flow provisions and riparian land measures
are examined, and shortcomings of each are assessed. The paper concludes by suggesting a variety
of ways that these efforts can be strengthened,
including means to forge closer links among them.
STATE PROGRAMS TO PROTECT INSTREAM FLOW
One component of state riparian habitat protection is provided by programs to safeguard in1 Paper presented at the North American
Riparian Conference. (University of Arizona,
Tucsoq, April 16-18, 1985).
~ichael Mantell, Philip Metzger and Christine
Reid are Senior Associate, Associate and Research
Fellow, respectively, The Conservation Foundation,
Washington, D.C.
421
stream flow. Until recently, all state systems of
western water law required that, to gain water
rights, water must be diverted off-stream for specified beneficial uses (that did not include instream flow protection). With protection of instream flow as such still in its infancy and somewhat tenuous in practice, the quantification of
flow needs has focused on the stream itself to the
exclusion of adjacent, riparian concerns.
Methods to Protect Instream Flow
The techniques that states can adopt to protect instream flows can be divided into three distinct categories. One, indirect protection of
flow, involves state agency review of the effect on
instream resources of new appropriation permits,
water quality regulations, and state or basin water
plans, and though useful, its efficacy depends
largely on the transient presence of committed
agency personnel rather than on a statutory commitment that will last through times of controversy
and shortage. (Tarlock 1978) Two, the public trust
doctrine is a court-enforced principle of public
law that can preempt existing water rights to limit
the ability of state or local governments to dispose of certain water and related land resources.
Because its remedy of displacing rights is so severe, the doctrine is likely to be used only in
instances where there is a major public interest in
instream flow. (Sax 1981)
The third category, direct set-aside of
rights, includes the three most widely effective
techniques: appropriation of water rights, state
reservation of unappropriated flows, and establishment of minimum flows in streams by state agencies.
(Tarlock 1978, Huffman 1980) By placing instream
flow within the existing system of water rights,
specific quantities of instream flows can be defined--by state or private ownership of rights,
regulation, or both--and secured in an institutional structure that can withstand future conflicts.
(Thompson 1981)
The three "set-aside" techniques rely almost
exclusively on unappropriated flows and thus largely are devices enabling the state to maintain the
instream status quo. The principal characteristic
that seems to determine when and where each technique is used is the extent of unappropriated water
available for instream uses. Reservations of flow
and establishment of minimum stream levels have
been used in relatively well-watered parts of Montana, Washington, Idaho, and Oregon, where large
amounts of flow can be set aside without displacing
any present water users.
The direct appropriation of water has been
authorized in Colorado (for state agencies) and
Arizona, two arid states with essentially full
appropriation of most reliable flows below stream
headwaters. These appropriations do protect flows
directly on the few streams bypassed by the states'
long history of water appropriation, but, equally
important, allow agencies or organizations holding
instream rights to intervene in other users' proceedings to transfer water rights, especially into
other basins. As one commentator noted, in fully
appropriated states, "water transfers will ultimately be of greater importance" than new appropriations. (Kimsey 1975)
The fish and wildlife agencies do not themselves make the final decisions on their proposals
to safeguard instream flow, and thus political
limits are placed on the exercise of their administrative discretion. In the principal western
states with programs or authorities to protect
instream flow--Oregon, Colorado, Montana, Washington, Arizona, and Montana--wildlife agency proposals for minimum or base flows or for instream
appropriations must be reviewed and approved by
separate water boards or resource agencies.(Huffman
1980, Scribner 1979) In Idaho, the state legislature must ratify minimum flow proposals.(Huffman
1980) Thus, the wildlife agency effectively is
compelled to consult closely with the permit,
reservation, or flow granting body before formally
seeking protection of flow.
Problellls With Programs to Protect Instream Flow
Typically, instream flow schemes fail to include in their flow calculations the needs of riparian communities. Even when stream flow recommendations intended to maintain a certain discharge
level for fish do to some extent benefit riparian
vegetation, they often are set too low to sufficiently water that vegatation because their aim is
to protect aquatic life. (Schmidt 1983, Harwood
1981) Instream flow protection should also but
does not recognize the critical importance of riparian habitat to terrestrial and avian wildlife,
as well as the intrinsic importance of the diverse
plant life it sustains.
Another weakness shared in practice by all
set-aside approaches is the difficulty of turning
paper rights into real instream water. This requires a sophisticated monitoring system to detect
overuse, and enforcement must be effective and
swift once overuse is found. But monitoring and
enforcement are weak in practice because of the
high cost of monitoring, the scarcity of state
personnel, and the low priority generally accorded
to instream flow protection. In Washington, for
example, the Departments of Fisheries and Game must
request a public hearing before the Department of
Ecology can enforce minimum flows against overap-
422
propriating users--a slow process that is of little
benefit to fish stranded in low flow streams. The
enforcement problem is especially acute where offstream users have made appropriations junior to the
state's minimum flows (as in Oregon, Idaho, and
Washington), and in shortage periods either clamor
to have the instream flows suspended or, more
often, simply ignored. (Sherton 1981)
Eventually 1 the competition for water will
force states to monitor all water use more closely
and enforce instream rights more fully. Until
then, the main function of many instream flow programs will be to establish a legal and in~titution­
al foothold for instream values, which will become
more of a reality as the technical means and political will to assert those vaiues emerge.
STATE PROGRAMS TO PROTECT RIPARIAN LANDS
With one notable exception--Oregon--states do
not have specific, comprehensive programs to protect riparian habitat. Oregon uses a variety of
tax incentives, along with a requirement for local
inventories as part of its comprehensive land planning, to encourage the improvement of important riparian habitats. Among the most prominent approaches that states take to conserve riparian lands
are those measures that deal with wetland~, floodplains, and river conservation--all sites integral
to the preservation of riparian habitat.
Methods to protect riparian lands
Wetlands
Several states have established programs for
controlling development that may harm wetlands.
Because of development pressures and the impetus of
the federal Coastal Zone Management Act, coastal
wetlands have received more attention from state
programs than inland wetlands, although activity in
inland, freshwater areas has increased.
As of 1984, 11 states had measures specifically related to protection of inland wetlands. (Kusler 1984, Ketwig 1984). These programs vary widely
from state to state. Statutes generally provide
for state standards for local government regulation
or, in a few cases, for direct state regulation.
Wisconsin and Minnesota, for example, require local
governments to regulate inland shorelands (including rivers), up to 300 feet from the high water
mark or the landward side of the floodplain. (Kusler 1980). Several states condition wetland development permits on mitigation of impacts on wildlife
habitat or rare plants and animals. A few areas
have authorized income or property tax credits for
wetland and open space preservation. (Kusler 1984)
Floodplain protection
At least 30 states control uses of flood-prone
lands, but these controls are aimed at protecting
public health and safety from flooding, not at
conservation of wildlife habitat. Even when programs prohibit structures (as in most floodway
areas), they generally allow and may even encourage
uses such as agriculture and recreation (e.g., golf
courses and ball fields) that disrupt habitat.
Structural flood control measures, such as darns,
reservoirs, dikes, levees, and channel alterations,
which have been a part of many state programs,
actually contribute to riparian habitat destruction
in some ~ases.
State river conservation programs
The twenty-eight state river conservation
programs vary widely in content, support and effectiveness; some do little more than label rivers
while other provide a measure of protection from
streamside development and water projects.(Hoffman
1984, Diamant 1984) The regulatory objectives and
the strength of riparian habitat protection often
vary with the focus of the managing agency (for
example, natural resources, fish and game or parks
and recreation). While none of the state wild and
scenic river programs identify riparian habitat
protection directly as one of their goals, riparian
communities benefit from objectives to preserve
water quality and free-flowing river conditions,
protect natural features, scenic beauty, and fish
and wildlife species, and enhance recreational
opportunities in rivers.
Within this general framework, river conservation programs utilize a wide range of implementation tools. One of the strongest measures is the
consistency provision (enacted in 13 states), which
assures that the actions of other state agencies
reflect the values for which the river was designated. Most programs include specific requirements
that benefit riparian communities, such as maintaining buffer strips against logging, prohibiting
mining, and establishing setbacks. These land use
controls vary widely in their strictness and enforcement. While some states encourage (and fund)
local governments to take over the planning and
management of river corridors, most states will
still intervene when local actions fall short of
state standards.
As federal initiatives in river protection
have faded, state and local efforts have experimented with protection strategies. Only a few states
have the monetary resources or separate budgets for
acquisition of riverside lands (for example, Florida's $32 million per year Save Our Rivers acquisition program, funded by a real estate transaction
tax). Most states have also found that landowner
resistance makes purchase of scenic easements costly and often unsuccessful. On the other hand, many
managers report that donated easements have worked
well since the landowner usually believes in the
concept of river preservation. Statewide comprehensive plans (Maine), state standard-setting for
local regulation (Minnesota), and tax incentive
programs (Oregon) also have been used to implement
more traditional approaches.
Problems With Programs to Protect Riparian Lands
State programs to protect wetlands and conserve rivers have proven difficult to implement,
423
even where strong laws exist. While growing public
recognition of the importance of wetlands has enabled some states to enact powerful protection
schemes, even these have not been problem-free. A
recent report by the U.S. Office of Technology
Assessment noted that state implementation of wetland laws has been hampered by lack of funding,
••tinimal monitoring and enforcement, and inadequate
legislative support. (Office of Technology Assessment 1984) Habitat conservation through wetland
measures has been especially thwarted by lack of
specific objectives, agency fragmentation, and
insufficient technical information and expertise.
Problems in mapping and identification of freshwater wetlands have been created by differences in
vegetation types, water levels, and the demands on
wetlands for flood storage and habitat, in addition
to the relatively small size of many wetlands.
Many of the state river conservation programs
now in existence have not proved overly successful,
either in the number of rivers designated or in the
enforcement of management objectives. The reasons
for this are varied, but include: the lack of
adequate support or concern for river conservation
in the state; state laws which are vague and erect
a number of stumbling blocks prior to river designation; landowner resentment of state intervention;
the lack of understanding on the part of landowners
as to the benefits of the program or of different
protection methods; and the lack of a coordinated
effort between state and local agencies, private
non-profits and citizens groups.
STRENGTHENING THE PIECES OF RIPARIAN HABITAT
PROTECTION
For the most part, state instrearn flow and
riparian land conservation measures are inadequate
to protect riparian habitat. As noted earlier,
instream flow schemes fail to consider the needs of
riparian ecosystems. The inadequacy of the several
state measures to protect riparian lands--by wetland, floodplain, and river conservation programs-have also made riparian communities vulnerable.
Even where strong programs exist, shortcomings such
as lack of funding and inadequate data and enforcement often preclude their effective implementation. Aside from creating strong laws where none
now exist, states can take several steps to remedy
these shortcomings.
Better Information
Virtually every state program stJffers from
inadequate data about riparian ecosystems. The
flow and land needs of flora and fauna, the precise
areas they occupy, and the potential effects of
proposed activities may not be known, much less
considered, when decisions are made, for example,
to grant instrearn flow rights or to permit development in a floodplain. More complete data are needed not only to identify critical resources but also
to monitor the effects of human activities on riparian habitat and to enforce regulations. Some
valuable information has been developed by recent
federal initiatives, such as the National Wetlands
Inventory, and states should seek these data where
applicable to their own programs. (Tiner 1984)
Requirements for Consultation and Coordination
Beyond the collection of data on riparian
ecosystems, states need to assure such data are
fully considered in decision-1naking processes.
These processes will vary among states, although
most have the programmatic means to ensure such
consideration. Some state environmental policy
acts (for example, in California and Michigan)
could be used to require the generation and consideration of data on the impacts of proposed activities on water resources and sensitive lands. Requirements for consolidated or joint permits are
another way to orient information-gathering towards
riparian ecosystems, and could also stimulate more
direct cooperation between the branches of an agency that are responsible for flow and riparian land
protection.
Two additional measures take the coordination
requirement a step further and warrant particular
consideration. One is to designate certain critical riparian areas and require that state agency
actions and decisions in such areas be consistent,
to the fullest extent practicable, with riparian
habitat protection. Another is to attach mitigation and habitat restoration requirements to permits or rights granted for activities that will
disrupt valuable riparian lands.
However, if such measures are not crafted
carefully, they could lead to more interagency
disputes and less protection. Moreover, as the
competition for water supply to serve both instream
and off-stream uses intensifies across the country,
conflicts under federal and state statutes are
likely to increase as well. The federal Endangered
Species Act is an important model for providing
agencies incentives to work out mutually acceptable
solutions. It gives the u.s. Fish and Wildlife
Service a strong say over federal activities that
affect endangered species habitat, but it also sets
up a negotiation process that prompts agencies to
search for consensus on ways to reduce or avoid
adverse impacts. In turn, when disputes over federal programs reach an impasse, the availability of
state programs to safeguard riparian habitat can
offer a new means for resolving such disputes short
of litigation or legislative exemptions.
conditions, many land trusts are capable of permanently owning and managing the lands themselves.
Closer relationships with private land trusts
should be pursued, not as a substitute for adequate
state programs, but because agency and land trust
capabilities are complementary. (Metzger 1983)
State technical expertise in flow quantification
and habitat assessment and long experience in management are for the most part not duplicable by the
private sector. Land trusts, on the other hand,
often can act to protect threatened land (and, in
some states, water) resources more quickly and at
lower cost than can most government agenc~es.
Perhaps most important, as land trusts' local constituencies gain experience in protecting riparian
habitat, they build grass-roots support for vigorous state programs.
Thus, at a time of tight government budgets,
wildlife agencies should work to improve the authority and capability of nonprofit land trusts to
safeguard riparian resources. In the long run,
strong private sector efforts will be needed to
protect riparian resources and to help establish a
firmer political base for building cost-effective
state programs.
LITERATURE CITED
Diamant, Rolf, J. Glenn Eugster, and Christopher
J. Duerksen. 1984. A citizen's guide to
river conservation. 113 p. The Conservation
Foundation, Washington, D.C.
Harwood, John A. 1981. A legislative proposal
protecting riparian vegetation, an endangered
habitat: An unconstitutional taking? Arizona
Law Review 23:341.
Hoffman, Robert C., and
America's rivers:
river conservation
Conservation Fund,
Keith Fletcher. 1984.
An assessment of state
programs. 233 p. River
Washington, D.C.
Huffman, James L. 1980. The allocation of water
to instream flows. Final Report, u.s. Department of the Interior OWRT Grant 14-34-00018403 (Lewis and Clark Law School, July 1980).
Ketwig, Ken. 1985. Californians approve funds to
preserve rare wetlands. Audubon Action 3(1) :6.
Kimsey, Robert A. Water allocation in Utah - Pro
tection of Instream Uses. Utah Law Review
1975:697-698.
Public-Private Partnerships
Notwithstanding the improvements that should
be made in the implementation of and coordination
among state programs, the scope and amount of protection that they alone can offer to riparian habitat will likely be insufficient. At the same time,
the contribution of private, nonprofit groups to
riparian habitat preservation has been growing.
These groups--which include not only the well-known
Nature Conservancy but also many regional and local
land trusts across the nation--generally can acquire and retain riparian resources until a public
agency is ready to acquire them. Under appropriate
424
Kusler, Jon. 1980. Regulating sensitive lands.
Ballinger Pub. Co., Cambridge, Mass., p. 26.
Kusler, Jon, and Richard Hamann. 1984. Wetland
workshop summary: Innovative approaches,
unsolved problems, and future directions.
National Wetlands Newsletter, published by
Environmental Law Institute. Nov./Dec.:7-9.
Metzger, Philip C. 1983. Public-private partners
foster land conservation. Conservation Foundation Lett~r, July. 8p. Washington, D.C.
Tarlock, A. Dan. 1978. Appropriation for instream
flow maintenance: A progress report on "new"
public western water rights. Utah Law Review
1978:211, 225-247.
Sax, Joseph L. 1981. Liberating the public trust
doctrine from its historical shackles. University of California at Davis Law Review
14:188-193.
Schmidt, William E. 1983.
work restoring creeks.
gust 15, 1983:1.
Scribner, Tom.
problem of
mental use
Law Review
Thompson, Rick A. 1982. Statutory recognition of
instream flow preservation: A proposed solution for Wyoming. Land and Water Law Review
XVII :139, 148.
u.s.
puts beavers to
New York Times. Au-
1979. Arizona water law: The
instream appropriation for environby private appropriators. Arizona
2l:i095, 1112-1113.
Sherton, Corrine C. 1981. Preserving instream
flows in Oregon's rivers and streams. Environmental Law Review 11:395-396, 417.
Tiner, Ralph W., Jr. 1984. Wetlands of the
United States: Current status and recent
trends. 59 p. u.s. Government Printing
Office, Washington, D.C.
u.s.
425
Office of Technology Assessment. 1984.
Wetlands: Their use and regulation. 208 p.
U.S. Congress, Washington, D.C.