Presentation Title

From Winters to Implementation; Tribal Water Rights Settlements and Instream Flow Protection

Authors' Names

Dylan DesrosierFollow

Presentation Type

Oral Presentation

Area of Focus

Social Sciences

Abstract

The instream flow protections expressed in tribal water rights settlements represent a massive collision between the historical canons of the prior appropriation system and the contemporary integration of tribal reserved water rights. At the foundation of this collision are tensions between water conservation and water consumption, and a fundamental tension between State authority and Tribal sovereignty. Since the McCarran Amendment and state court quantification of Winters reserved rights, Tribes have sought to quantify and protect reserved water rights through negotiated settlement agreements. Although the settlements have sought to bring certainty, resolution, and final integration of reserved water rights into contemporary western water law, the results for instream flow protection are far from clear. This paper takes a lessons learned approach by analyzing the language surrounding each tribe’s authority to protect instream flows in the settlements that have been federally legislated. Across the range of provisions related to protecting instream flows, the settlements that broadly define the tribe’s use of their quantified water right, reserve explicit authority to protect instream flows, and clarify jurisdictional responsibilities between the tribe and the state stand to avoid future ambiguity and conflict. This paper further explores the Warm Springs, Fort Hall, Nez Perce, and Taos Pueblo settlement instream flow provisions and assesses the context for their implementation. In doing so, this paper discusses some of the major barriers to implementing instream flow protection and identifies a few strategies for implementation and future management.

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Apr 18th, 12:40 PM Apr 18th, 1:00 PM

From Winters to Implementation; Tribal Water Rights Settlements and Instream Flow Protection

UC 333

The instream flow protections expressed in tribal water rights settlements represent a massive collision between the historical canons of the prior appropriation system and the contemporary integration of tribal reserved water rights. At the foundation of this collision are tensions between water conservation and water consumption, and a fundamental tension between State authority and Tribal sovereignty. Since the McCarran Amendment and state court quantification of Winters reserved rights, Tribes have sought to quantify and protect reserved water rights through negotiated settlement agreements. Although the settlements have sought to bring certainty, resolution, and final integration of reserved water rights into contemporary western water law, the results for instream flow protection are far from clear. This paper takes a lessons learned approach by analyzing the language surrounding each tribe’s authority to protect instream flows in the settlements that have been federally legislated. Across the range of provisions related to protecting instream flows, the settlements that broadly define the tribe’s use of their quantified water right, reserve explicit authority to protect instream flows, and clarify jurisdictional responsibilities between the tribe and the state stand to avoid future ambiguity and conflict. This paper further explores the Warm Springs, Fort Hall, Nez Perce, and Taos Pueblo settlement instream flow provisions and assesses the context for their implementation. In doing so, this paper discusses some of the major barriers to implementing instream flow protection and identifies a few strategies for implementation and future management.