Water Use - Aquatic Life—an Old And New User

Since the enactment of the 1972 Federal Water Pollution Control Act, with its emphasis on maintaining the physical, chemical, and biological characteristics of the nation's waters, there has been an increasing awareness of the need to protect and maintain the insects, plants, and animals that make up the ecosystem of surface water bodies. Since life on Earth first began in the ancient seas, aquatic life has been an integral part of overall water resources. This fact has frequently been ignored as human civilizations evolved, resulting in widespread change in and annihilation of aquatic systems.

In the United States, allocating water to maintain aquatic systems was rarely recognized as a legitimate use until the last two decades of the twentieth century. Before that time, dam construction frequently disrupted whole ecological systems by reducing the water available to aquatic life in large stretches of rivers and streams below dams, interfering with the life cycles of migrating fish and other organisms, and flooding habitats. In some river systems, such as the Colorado River, the entire flow was allocated and appropriated, resulting in drastic changes to the lush waterscape observed decades before at the delta of the Sea of Cortez, where the Colorado River deposited its rich silt. Rivers and streams have been lined with impermeable surfaces such as concrete or channelized to conserve water, control flooding, or provide passage for boats.

These practices are slowly changing. Permits issued for dam construction or reissued for dam operation are beginning to contain a provision for maintenance of minimum flow below the dam at a level sufficient to protect the natural system. In several cases this has required reduction in the water allocated to other users. Many states have programs to restore natural systems by removing abandoned or obsolete dams and other waterway obstructions, and to construct fish ladders to facilitate fish passage, recognizing this as a legitimate water use. Water allocation decisions in areas where water is a scarce resource are increasingly designating a portion for aquatic life protection. Proposals to divert or use water are more closely scrutinized to avoid adverse impacts to aquatic life. Recognizing aquatic life protection as a legitimate water use will have a profound effect on future water allocation decisions.

Except for a few rare instances, water is owned by the states, not the federal government. Therefore, the U.S. Fish and Wildlife Service (USFWS) has adopted a policy of obtaining water rights. The objective is to obtain water supplies of adequate quantity and quality, and the legal rights to use that water from the states, for development, use, and management of USFWS lands and facilities and for other congressionally authorized objectives, such as protection of endangered species and maintenance of in-stream flows.

Here are some examples of the evolving recognition of aquatic life protection as a legitimate water use:

• A February 26, 2003, news report issued by the National Marine Fisheries Service (NMFS) stated that for the second consecutive year federal agencies had made substantial progress in implementing the National Marine Fisheries Service's 2000 Biological Opinion (BiOp) for the Federal Columbia River Power System. Hundreds of millions of electric rate-payer and taxpayer dollars each year have been used on a performance-based approach aimed at achieving the highest biological results at the lowest cost. These efforts have resulted in the protection of hundreds of miles of habitat, and a record return of adult fish to the Columbia River in 2002.
• A 2002 EPA Region 9 Progress Report discussed the success of the salmon recovery project in Northern California's Butte Creek. The project, undertaken by CALFED Bay-Delta Program, has resulted in an average spring salmon spawning of about 6,000 fish—up from about 1,000 fish per spring from the 1960s through the 1990s. The removal of four small dams that had blocked salmon passage was funded by the local Western Canal Water District and Southern California's Metropolitan Water District.
• On February 28, 2002, EPA administrator Christie Whitman signed a proposed regulation that would reduce the number of fish, shellfish, and other aquatic life harmed by the effects of the withdrawal of cooling water from rivers, streams, lakes, reservoirs, estuaries, and oceans. The regulation would apply to already-existing power-producing facilities that use large amounts of water to cool machinery and would establish requirements based on the best available technology. Under the proposed regulation, water bodies that are more sensitive or that have more extensive aquatic resources will receive increased protection. The regulation also would allow facilities to use restoration measures in addition to, or in lieu of, direct controls on the cooling water intake to protect aquatic life. Because several options are available in the proposal, the public is afforded the opportunity to comment on a range of potential scenarios for protection of fish, shellfish, and other aquatic life. A period of development and implementation followed, with information gathering, public comment, and standards development extending into 2005.
• According to the Connecticut River Coordinator's Office of the U.S. Fish and Wildlife Service (http://www.fws.gov/r5crc/Habitat/fish_passage.htm, September 19, 2004), removal of the Winchester Dam on the Ashuelot River in 2002 restored approximately fifteen miles of the river to free-flowing for the first time in one hundred years. The project was part of a river restoration plan intended to help bring back thousands of American shad, blueback herring, and Atlantic salmon to the river. One of New Hampshire's major tributaries to the Connecticut River, the Ashuelot is historically important for migratory fish. David Deen of the Connecticut River Watershed Council (one of the project's financial backers), cited the Ashuelot River restoration project as a model of public-private partnerships that can benefit the Connecticut River and the communities located within its four-state watershed.
• In March 2000 Thurston County Superior Court Judge Richard Hicks ruled that the Washington Department of Ecology had to implement a 1993 statute requiring metering of water use throughout the state. The implementation had to include both surface water and groundwater. The water metering statute was adopted as part of a larger salmon recovery package and was seen as an essential element in the wise management of the state's water resources for both people and salmon. Metering is viewed as the way to get the basic information about who is using the water and how much.