Pohcy Studies Journal, Vol 19, No 3-4,199J (534-541)

Water for Wildlife:Integrating Science and Politicsin Wildlife Conservation

Matthew J McKinney

Water is one of the most cnacal habitat requirements for fish and wildbfe(Leopold, 1933, Henning & Mangun, 1989) However, western water law andpolicy has not historically recognized fish and wildlife values in allocating anddeveloping water (Wilkinson, 1989) Consequently, fish and wildlife have beenthreatened by diverting water out of streams for municipal, agncultural,"offstream" uses (West's fouled waters, 1989) In respcmse to this situaticoi,public and pnvate wgamzations have recently develc^d a vanety of strategies,programs, and policies for legally keying water "lnstream," unavailable fwdiversion and offstream use, for fish, wildhfe, and other benefits (MacDonnell,Rice. & Shupe, 1989)

While many of these recent policy developments have been created bygenuine ecological needs and are based on sound scientific information, theirformulation and lmplementauon have been fraught with confhct. Traditionaloffstream watw users, perceiving a threat to their water nghts and livehhoods, haveresisted attempts to integrate lnstream flow protection mto the legal and institutionalframework for managing west^n water (McKinney, 1989a). Although there areseveral success stones m protecting lnstream flows throughout the West, theseefforts illustrate the importance of effective pubhc involvement and conflictmanagement in developing and implementing fish and wildhfe policy

The purpose of this article is to illustrate that ecological needs and goodscience are necessary, but not sufficient conditions for fish and wildlife manage-ment Although certam programs and policies may be ecologically and scienbfi-cally justifiable, they may be unworkable if they are unaccq)table to affected partiesand the general pubhc The challenge is to develq) fish and wildlife pohcy that,from a scientific and ecological perspective will get the job done, and, frwn apolitical perspective, is generally acceptable to all affected parties.

The article begins by bnefly examming the science of mstream fiow protec-tion The pohtics of lnstream fiow {HX)tection is then reviewed by presenting severalcase studies The article concludes with two recommendations on how to mtegratethe science and poliucs of fish and wildhfe conservation.

The Science of lnstream Flow Protection

The science of lnstream fiow protection consists of a vanety of componentsHowever, the two most important components are. (a) technical methods toquantify the amount of water required to maintain fish and wildlife populations, and(b) legal and institutional strategies for maintaining and enhancing lnstream fiows

Symposium on W-ldhff '-in^emannn and Public Policy McKinney

(MacDonnell, Rice, & Shupe '989. McKmney. 1989a) These two issues definehow much water is needed to protect lnstream fiow values, and what managementstrategies are available withm a given >iait

Methods to Quantify FlowsOne of the first tasks in providing water for fish and wildlife is to determine

the need and goal ftx* lnstream flow, specify its location, and quantify the amountof water required (Beecher, 1990) To date, the development of methods to quantifyinstream fiow needs have centered on the requirements for fish (McKinney, 1989a)Very little effort has been devoted to developing methods for wildlife, npananhabitat, recreation, and other instream values

The methodologies available to quanufy instream flows for fish vary insophistication and precision, ranging from simple visual judgments about thesufficiency of histoncal flows, to elaborate computer models that can estimate thehabitat-flow requirements of selected fish species at vanous life-stages "Standardsettmg methods" identify a minimum flow required to protect a given fish species,while "mcremental methods" estimate the amount of suitable fish habitat as fiowchanges (Tnhey & Stalnaker, 1985) A variety of specific methods are availablewithm each of these general categones (Lamb, 1989)

The selection of which method to employ in a given situation is not an easydecision, and has been the subject of many articles (Gore & Nestler, 1988, Tnhey& Stalnaker, 1985) Lamb 0986) convincingly argues that the decision of whichmethod to employ is often influenced more by admimstrative and political forcesthan the ecological and scientific suitability of the method for a given situation

Strategies to Maintain and Enhance Instream FlowsAfter quantifying the amount of flow required to protect fish and wildhfe

habitat, the next step is to select a management strategy for legally providing waterThe strategies available for managing lnslream resources can be categorizedaccOTdmg to whether they are (tesigned pnmariiy for (a) mamtainmg a certainamount of existing (unappropriated) flow, or (b) lncreasmg flows m dewateredstreams (McKinney, 1989b)

The pr(Alem of maintaining existmg flows is how to set aside, withdraw, OTappropnate a particular level of unappropnated streamfiow below which no newoffstream or diversionary water nghts can be granted The purpose of such effortsIS to maintain the status quo and to deter future offstream divisions that maythreaten or harm instream values Several strategies are available to achieve thisobjective, mcluding (a) denying and condiuoning water use permits, (b) utilizingfederal regulator>' programs such as the Endangered Species Act and the CleanWater Act, (c) claiming mstream water nghts, (d) mitiatmg pnvate conmbuticHisand apiffopnauons, and le) prohibiting new diversions, such as through wild andscenic nvers (McKmney, 1989b) These strategies rarely create much controversybecause they generally result m the acquisiuon of junior water nghts that pose littlethre^ to existing water users However, while these strategies are generallyeffective in maintaining exisung flows, they are not apphcable to situations wherestreams are being dewatt red by overappropnation, drought,

Policy Studies Journal, 19 3-4

In contrast to mamtaming existing flows, the issue of increasing fiows indewatered streams is how to put water back into streams that are regtilaiiy otpenodically dewatered The purpose of these efforts is to retneve s(»ne water nowbeing diverted for offstream uses to enhance and protect instream values Onceagain, a vanety of legal and institutional strategies are available to accomplish thisgoal, mcludmg (a) transferring existing water nghts frcHn ofTstream uses toinstream uses, (b) cocwdinatmg reso^oir releases and water uses to coincide withmstream fiow needs, (c) constructing new water storage facdities. (d) claimmgfederal and Indian reserved water nghts, and (e) asserting the public trust doctnne(McKinney, 1989b, Shupe, 1989)

While all of these strategies are potentially effective in terms of putting wat^back m the stream, transfemng wat^ nghts and coordinating reservoir releases andwater uses are the preferred strategies because they are voluntary and [xotectexisting water nghts Other strategies to increase fiows in d e w m o ^ streams,particularly reserved water nghts and the pubhc trust doctnne, are more mandatory(l e , they may require existmg water users to alter theu* pattens of wat^ use,whethCT they want to or not) and regulatory and th^^by threaten the existingallocation and use of water

The search for an appropruue strategy to protect instream flows should bebased on an accurate definition of the mstream resource problem. Is the problemone of maintainmg existmg fiows or increasing flows in d e w a ^ ^ streams'' Oncethe resource problem is clanfied, the search for an approimate managemrat strategyIS then likely to be ccHiditioned by the m t ^ l a y of pohtical, admmistrative. andlegalforces, as explained m the next section of this article. To maccurately define theecological and scientific dunensions of the [Hoblon, however, is to run the nsk ofadoptmg and implementing an inappropriate strategy.

Other unpoiant components of the science of mstream flow protectioninclude (a) determinmg the economic value of mstream fiow uses (Colby, 1989),and (b) monitonng and enforcing mstream wat^ nghts (Shupe, 1989)

The Politics of Instream Flow Protection

In light of the scarcity and development of water in the West, voy few peoplewould argue against the ecological need for maintainmg s(»ne stream fiow for fishand wildlife (MacDonnell, Rice, & Shupe, 1989) The science of [vovidmg waterfor fish and wildlife is responding to this ecological need by testing vanous methodsfor quantifymg the fiows required to jvotect mstream values, and developingalternative management strategies to legally protect lnstream resources Neverthe-less, the overall tendency throughout the West has been to resist att»npts toincorporate instream fiow protection into the legal and institutional £ramew<»lE fcx'managing western water

This sectiCHi exammes some of the proUons exper^nced in trymg to formu-late and implement mstream flow programs m several western stfues It illustratesthat, although efforts to protect mstream fiows are based on ecological needs andvalid scienafic mformation, they are often molded and mfiuenced by admmistrativeand political forces

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Svmposium on '-^'ddhfe < onwrvation and Fuhlic Police McKmnev

Policy Formulation EffortsSeveral efforts to formulate mstream flow policies m the West have been

either sidetracked or significantly delayed because of overwhelming opposition byagncultural and other traditional oftstream water users New Mexico, for example,IS genially considM^ed to be ihe only western state that does not legally recognizesome frnm of mstream flowprotccuon (MacDonnell, Rice, & Shupe, 1989) Dunngthe 1989 legislative session, the Nauonat Wildlife Federation sponsored a bill thatwould have allowed unappropnated water to be approjMiated for instream flows,and existing water nghts to be transfered to instream purposes (Senate Bill 491,1989) From a technical perspecuve, as mentioned above, these are two reasonableand fair strategies HowevCT. after the bill passed the senate, it died m the house{Fish, wildlife, and strean^ov^, 1989) The bill was modified significantly bylegislatt»^ supportmg offstream water users and failed to gam full support from theenvironmental community by the end of the session According to several observersof New Mexico water politics, as the unchallengedmaster of New Mexico water lawand politics, the state engineer's opposiuon to the bill was all that was needed forthe legislaturc to scuttle the proposal rinsiream How proposal is diverted in NewMexico, 1989)

As another example, it took the State of Wyoming 14 years to enact a lawallowmg for the legal protecuon of mstream flows for tlsh (Reynolds, 1986) As mother western states, the lmpems for this effort was a perception that uncheckedwater development threatened high-valued fishenes After a considerable numberof attempts to draft legislation that satisfied all the affected parues, an agreementwas finally reached and instream flow legisiauon passed in 1986 However, somehave argued that the pohucal compromises required to pass the legislation havelimited thepotential effectiveness of the policy to protect instream values Reynolds(1986) argues that the policy will be difficult to implement given the number ofadmmistrative agencies required to parucipate in the program, as well as the needfor legislative approval of any jwoposed acuon to protect instream flows

Finally, after a considerable amount of involvement by affected parues and theg^eral pubhc, a bill was introduced in the 1989 Montana legislature to allow thestate Department of Fish, Wildlife and Parks to iease water nghts from willingoffstream wiuer users to increase flows m dewatered streams (HB 707,1989) Froma technical perspecuve, this proposal was potentially effecuve and protectedexisung water nghts However, it was overwhelmingly opposed by the agnculturalccmimimity, died, but was resurrected dunng the fmal days of the legislauve sessionA modiHed bill finally passed and was signed mto law. but is likely to be onlymarginally effecuve m providing water for fish and wildlife since it is a pilotprogram (four years) and limited to no more than five stream reaches fMcKinney,1989c)

In conuast to these and similar problems in fcamulaung programs and policiesto imjvide water for wildlife, several western states have develop)ed statutoryinstream flow programs, mcluding Alaska (AS 46 15 145), Colfwado (CRS 37-92-102(3)), Idaho (IC 42-1501), Montana (MCA 85-2-316), Oregon (ORS 538 300),Utah (UC 73-3-8), and Washington (RCW 90 22 and 90*54) However, as

Pohcy Studies Journal, 19 3-4

explained below, implementation of these irograms vanes and depends on a vanetyof factors

Policy Implementation EffortsAccording to McKinney and Taylor (1988a), Colo^do has acquired ova-

1 ,(XX) water nghts for instream flow purposes, while Oregon and Washmgton haveboth acquired and hold over 4(X) mstream water nghts McHitana has estabhshednearly 100 water nghts for mstream uses, Idaho 35, and Alaska and Wyoming haveacquired less than 10 instream flow water nghts Utah has yet to acquire any waternghts under their statutor>' mstream flow program

Although the protecuon of instream flows is well under way m the West,McKmney (1989a) obser\'es that such efforts are based less on ecological andscientific needs than organizauonal and pohtical forces. An examination of theimplementation of mstream flow programs in Colorado and Washington revealsthat the pnncipal variable shapmg implementation m both states is the organiza-tional disposition of the implementing agency—that is, the ag«icy's predispositicmto aggressively implement an instream flow program m light of their traditionalmission, consutuents, and standard q)eratmg procedures

The dispositions of the agencies in Colorado and Washington, however, arepolar opposites (McKinney, 1989a). The lmplemenung agency in Colorado hasadopted a relatively conservative approach to implementing the state's instreamflow program, due pnmanly to the role of offstream wat^ users on the agaicy'sgoverning board, and its tradition of supportmg water develc^mait In contrast, theimplementing agency m Washmgton, dnven by an environmentally-onented staffwith considerable autonomy, aXtmg with other orgamzzUional mandates to protectthe environment, has aggressively implemented Washington's mstream flowprogram

While organizational disposition has been the dnving force behind lmplemen-tauon m both states, this disposmon has been affected by a vanety of pohucal forces(McKinney, 1989a) InColorado,offstreamwaterusa^,asthetradiUonalconsUtU'ency of the lmplemenung agency, have uulized both legislauve and admmistrauvechannels to constrain and mold implementation of the instream flow program InWashington, by contrast, conflicung mterest groups have had only mmimal effectm shaping the implementation of the mstream flow inx)gram Instead, general publicsentiment and constituent groups have created an atmosphere of suppon for theinstream flow program in Washmgton Moreover, the courts have established ajudicial mandate for the protecuon of instream flows m Washington m response tolawsuits initiated by Indian tnbes In contrast, general public opinion and constitu-ency groups have not significantly influenced the implementation of Colorado'smstream flow program

In both Colorado and Washington, ecological needs and scientiflc mf ormaticmhave taken a back seat to pohucal pressure The primary strategy adopted in eachstate to protect mstream resources, to claim water nghts, has limited the degree ofconflict and controversy since it results in jumor water nghts that threaten very few,if any, existing water nght holders As mentioned above, this strategy is designedto maintain existing, unappropnated water for instream uses

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Symposium on Wildlife Conservatior and Public Pohcy McKinney

McKinney (1989b), however, argues that this is not an effecuve strategy toprotect instream resources m the long run because the pnmary problem withmstream resource management, from an ecological perspective, is how to mcreaseflow m ^watered streams—not how to maintain existing flows which may or maynot be sufflcient to protect the resource Although Colorado has incorporated astrategy to increase flows in dewatered streams by transfemng existmg offstreamwater nghts to mstream uses, it has been spanngly used because traditionaloH'stream water users fear that it will threaten their water nghLs Washington hasonly recently addressed this issue

Although Colorado has acquired over 1,0(X) water nghts for mstream flowpurposes, the acquisition of these nghts appears to be based more on the potentiallevel of conflict and controversy than ecological needs and scienuflc informationMostof the instream flow water nghts m Colorado are located high m the watershed,where there is httle, if any, threat to either fish and wild! ife reserves OT exisung waterusers In addiuon, as mentioned above, there have been relatively few attempts toincrease flows in dewatered streams, a significant ecological need because of thelikely resistance from agncultural and often traditional water usere In Washington,mstream flow protection appears to be based more on ecological needs andscientific information given the general atmospheres of political and admmisu^tivesuppon for the program However, as mentioned above, Washington has onlystarted to address the more ecologically important and pohucally sensitive issue ofincreasing flows in dewatered stieams

Tlie pnmary message of this bnef discussion is that efforts to provide waterfor flsh and wildlife are conditioned by a host of institutional and political variablesAlthough the science and ecology of instream flow protection are generallyaccepted, efforts to protect and enhance lnstieam flov s are resisted by tiaditionalwater users, water development agencies, and other parties affected by this newlyrecogmzed use of water

Conclusion

Recent efforts to provide water for fish and wildlife in the West illustrate thatnew interests and values can be integrated into existing legal and mstitutiCHialframeworks for managing natural resources However, these efforts also illusti^tethat, while certain programs and policies may be ecologically and scientificallyjustifiable, they may be unworkable if they are unacceptable to affected parties andthe general public

Two rec(Mnmendauons emerge firom this obs^T^auon on how to integratescience and pohucs in fish and wildlife conservauon First, there is a need to developplanning and policymakmg processes that allow affected paities to jointly shapeprograms and pohcies proactively, befcffe full-blown disputes emerge and partiesbecome polanzed. Such processes should be based on the [Hinciples and techniquesof environmental dispute resolution, and should provide the opportunity forcollaborative problem solvmg and decisionmaking (McKinney, 1988b). Comparedto traditional planning and pohcymaking processes, collaborauve problem solving

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processes are more likely to result in an apjxopnate integration of science andpohucs b y (a) promoung the sharing of values and mterests. (b) enccmraging jomtfact finding, and (c) focusing on the issues and concerns raised by the parties. Theoutcomes of such processes are also more likely to be implemented given that allaffected parues have participated in the ixxKess.

The second recommendation is that resource manago^ and administratorsneed more traming m pubhc involvement and conflict managanent. In several areasofwildlifeconservation and management, scientifically wd ecologically justifiableplans and programs are opposed by affected paities who have not been adequatelyinvolved in their development While ineffective planmng and policymakii^pnxesses are part of the problem, most resource managers and admmistrators havehad httle. if any, trammg m pubbc involvement and conflict management They notonly resist the public telhng them how to do their job, but also lack the ess^tial toolsfor effectively mvolving the pubhc and resolving complex, multi-party disputes.

Insu^am flow protecuon, as well as other wildlife conservation goals, aremore likely to be achieved in the future by lncreasmg the commumcation, coopera-tion, coordmauon, collaboration, and consensus among a^ected parties, resourcemanagers, and policymakers

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Gore,J A,&Nestler,J M (1988) Listreun flow studies m perspective. Regulated Rivers Researchand Management. 2(1), 93-101

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Svmposium on Wtldhfe Conservation and Public Pohcy McKinney

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