FOR WILDLIFE AND RECREATION
A. Dan Tarlock
Professor of Law
IIT/Chicago Kent College of Law
IIT/Chicago Kent College of Law
I. WHAT ARE INSTREAM USES AND WHY WORRY ABOUT THEM?
A. Definition. Instream uses are non-consumptive
uses of water that are confined to the banks and bed
of a stream or lake.
B. Rationale For Protection. Instream uses are a
matter of public (and thus legal) concern because of
the growing realization that historic water use pat-
terns based on impoundments, consumptive withdrawals
and the use of watersheds as sinks for waste disposal
have high social costs in the form of foregone recre-
ational and environmental values. See Final Report
of the National Water Commission, Water Policies For
the Future 19-37 and 271-292 (1973)
II. HOW ARE INSTREAM FLOW NEEDS CALCULATED?
A. Who Should Decide To Protect? Because existing
legal regimes allow or recognize the right to acquire
private property interests in the use of water out
of a stream, instream flows must be affirmatively
protected. The options are (1) legislative protect-
ion of specific streams, (2) administrative allocation
of water for this use, and (3) private initiatives
to acquire and maintain rights for this purpose.
Congress and state legislatures have intervened in
specific "dam-it" versus "preserve it" Controversies
to withdraw specific rivers or reaches from develop-
ment. However, the modern rationale for the recogni-
tion of instream uses is that they are a method of
recognizing basin-wide environmental values and
therefore stabilizing basin-wide development. Thus,
the issues are both technical and judgmental, and the
legislature is not the ideal forum for such decision-
making. Private initiative through the claim of in-
stream flow rights, while theoretically possible, has
high opportunity costs. Because in the western states,
the right to use water is relatively costless, there
would be few cost constraints on the ability of pri-
vate interests to claim instream rights in unappro-
priated waters. Because the benefits of instream
uses accrue to the public generally, it seems appro-
riate that they be protected only by public bodies,
and by default water allocation agencies seem to be
the best choice.
B. Purpose of Recognition. The purpose of in-
stream flow preservation are generally stated as
(1) fish and wildlife preservation, (2) recreation
enhancement, (3) aesthetic enhancement, (4) pol-
lution abatement and (5) the stabilization of
water availability for consumptive uses.
C. Role of Department of Interior. The Coopera-
tive Instream Flow Group, United States Department of
Interior, Fish and Wildlife Service is (was?) the
lead federal agency in developing instream flow
measurement methodologies and coordinating federal-
state cooperation. In brief, the Instream Flow
Group initially used fish or other species protect-
as a proxy for all instream flow values and assess-
ment methodologies for setting instream preserva-
tion flows. Such flows are defined thatht range
of flows within a stream required to preserve the
existing levels of fish, wildlife, other aquatic
organisisms and related recreational opportunities."
The Group uses a PHABSIM (Physical Habitat Simu-
lation) model to produce technical recommendations.
The two major variables are (1) depth and (2) velocity.
D. Technical References:
1. C. Stalnaker and J. Arnette, Methodologies
For the Determination of Stream Resource Flow
Requirements: An Assessment (U.S. Fish and
Wildlife Service, 1976).
2. K. Boveee and R. Milhous, Hydraulic Simu-
lation in Instream Flow Studies: Theory and
Techniques (Instream Flow Information Paper:
No. 5, 1978).
3. Various other technical papers and state
by state surveys of preservation flow strategies
that exist in draft form.
III. HOW ARE INSTREAM USES PROTECTED IN A RIPARIAN OR
A. Who May Claim? Instream flow rights may only
be claimed by a private riparian or a public entity
that owns riparian land.
B. Natural Flow Theory and Reasonable Use Theory.
Instream uses are recognized under the natural flow
theory and reasonable use theory.
1. A riparian may claim a right to enjoy the
natural flow of a stream for recreational and
aesthetic purposes under the natural flow
theory. Collens v. New Canaan Water Co., 155
Conn. 477, 234 A.2d 825 (1967).
2. Recreational use and a limited right to
view are reasonable uses but, to prevail
against other users a riparian must prove
that there has been a total destruction of
the use. City of Los Angeles v. Aitken, 10
Cal. App. 2d 460, 52 P.2d 585 (1935), hearing
denied. (loss of view). Under this theory,
a riparian may not claim a right to the natu-
ral or uninterrupted flow for recreational use
or view. Dunlap v. North Carolina Power &
Light, ____ N.C. ____, 195 S.E. 43 (1938).
3. Because riparian rights may be exercised
at any time, it is theoretically possible for
a present upstream riparian use to be enjoined
in order to protect the future needs of a down-
stream riparian, but the courts in both pure
riparian states, Pyle v. Gilbert, 245 Ga. 403,
265 S.E. 2d 584 (1979), and dual systems are
limiting this possibility. In Re Waters of
Long Valley Creek System, 158 Cal. Rptr. 750,
599 P.2d 656 (1979).
C. State Wild and Scenic Rivers Programs. States
along the Pacific Coast and in the Mid-West and East
have enacted state wild and scenic river programs
modeled on the Federal Wild and Scenic Rivers Act
of 1968. e.g. Calif. Pub. Res. Code S5093.50-65;
Ore. Rev. Stat. S390.805-.925; Kentucky Revised
Stat. SS146.200-.360; Minn. Stat. Ann. SS104.31
.31-.40; and N.Y. Envir. Conser. Law, Art. 15,
tit. 7 SS429-k-v. These acts are primarily con-
cerned with preventing impoundments, diversions,
and with the control of land use in the river
corridor. The constitutionality of Minnesota's
legislation was upheld in Pine County v. State
Department of Natural Resources, 280 N.W.2d 625
(Minn. 1979). See also Commonwealth ex rel
Department for Natural Resources v. Stephens, 539
S.W.2d 303 (Ky. 1976).
IV. HOW ARE INSTREAM FLOWS PROTECTED IN APPROPRIATION
A. Direct State Methods. There are three direct
methods of protecting instream flows under state
law. These are:
1. Instream Flow Appropriations. These
appropriations are generally claimed by public
bodies pursuant to specific enabling legisla-
2. Instream Flow Reservations. In some
states the legislature has withdrawn specific
waters from appropriation; in other states
the legislature has authorized state agencies
to withdraw and reserve water for instream
uses. A reservation has the effect of denying
private and public appropriation of surplus
water but technically the state holds no water
right to the flow so the method of protection
is different from an instream flow appropri-
ation and may have different consequences.
3. Permit Conditions. Appropriations for
direct diversion or impoundment may be con-
ditioned on the maintenance of a schedule of
2. Legislative Authorizations. The legis-
latures of Colorado, Colo. Rev. Stat.
37-92-102(3), Idaho, Idaho Code 42-1501-1505,
and Washington, Rev. Code of Wash. Ann.
S90.03.345. allow state agencies to make in-
stream appropriations. The following challenges
have been raised with respect to instream appro-
priations of unappropriated waters:
a. The use is not beneficial. Compare the
plurality and concurring opinions in Depart-
ment of Parks, supra.
b. The legislation is an unconstitutional
delegation of legislative authority because
there are insufficient standards to guide the
state agency in making the appropriation.
Colorado Water Conservation Dist., supra.
c. A physical diversion of the water is
required, e.g. State ex rel Reynolds v.
Miranda, 83 N.M. 443, 493 P.2d 409 (1972).
This argument has been rejected where the
legislature has expressly or impliedly
abolished the requirement, but two California
intermediate appellate courts have held that
neither private associations, California
Trout, Inc., v. State Water Resources Control
Board, 90 Cal. App. 3f 816, 153 Cal. Rptr.
672 (1979), nor the state, Fullerton v. State
Water Resources Control Board, 90 Cal. App.
3d 590, 153 Cal. Rptr. 518 (1979) can appro-
priate instream flows absent specific enabling
legislation because a physical diversion is
a necessary condition for a perfected appro-
D. State Reservations. Montana has authorized
the Board of Natural Resources and Conservation to
reserve water. Mont. Code Ann. 85-2-316. This
procedure used to reserve substantial amounts of
water in the Yellowstone Basin. See Tarlock, The
Recognition of Instream Flow Rights: "New" Public
Western Water Rights, 25 Rocky, Mt. Min. L. Inst.
24-1, 24-36-39 (1979). The statue was amended in
1979 to limit minimum flow reservations "to a maxi-
mum of 50% of the average annual flow of record on
gaged streams. Ungaged streams can [sic] be
allocated at the discretion of the board." Mont.
Code Ann. 85-2-316(5).
E. Denial of State Appropriation Permits. Most
state water allocation agencies have the power to
deny appropriation permits for public interest
reasons, e.g. Oregon Revised Statutes 537.170(3)
and Utah Code Ann. 73-3-8 (denial if permit
unreasonably affects public recreation or the
natural stream environment). This power has tradi-
tionally been used only to knock out inefficient
projects or to reserve water for a more efficient
or beneficial project, but it could be a source of
instream flow recognition in states that tie permit
applications to statewide water plans that include
minimum flows, e.g., Oregon Revised Statues
536.320(2). See Comment, Preserving Instream
Flows in Oregon's Rivers and Streams, 11 Environ-
mental Law (379, 390-406 (1981).
F. Conditions on State Appropriation Permits.
The power to deny includes the power to condition
and states use this power to require a schedule of
flow releases from diversions and impoundments.
Rev. Code of Wash. Ann. S90.03.247 imposes a duty
to impose such conditions to implement the state's
preservation flow program.
Whenever an application for a permit
to make beneficial use of public
waters is approved relating to a
stream or other water body for which
minimum flows or levels have been
adopted and are in effect at the time
of approval, the permit shall be con-
ditioned to protect the levels or
flows. No agency may establish
minimum flows and levels or similar
water flow or level restrictions
for any stream or lake of the state
other than the department of ecology
whose authority to establish is
exclusive, as provided in chapter 90.03
RCW and RCW 90.22.010 and 90.54.040.
The provisions of other statutes,
including but not limited to RCW
75.20.100 and chapter 43.21C RCW,
may not be interpreted in a manner
that is inconsistent with this
section. In establishing such
minimum flows, levels, or similar
restrictions, the department shall,
during all stages of development by
the department of ecology of minimum
flow proposals, consult with, and
carefully consider the recommendations
of, the department of fisheries, the
state game commission, the state
energy office, the department of
agriculture, and representatives of
the affected Indian tribes.
cf. State v. Crown Zellerbach Corp., 92 Wash. 2d 894,
602 P.2d 1172 (1979).
G. Modification of Reservation. Mont. Code Ann.
S85-2-316 (10) allows reallocation of a reservation
to another "qualified reservant" when "the board
finds that all or part of the reservation is not
required for its purpose and that the need for the
reallocation has been shown by the applicant to
outweigh the need shown by the original reservant."
H. Literature Sources
1. Arizona. Note, Arizona Water Law: The Pro-
blem of Instream Appropriation For Environmental
Use By Private Appropriators, 21 Arizona L. Rev.
2. California. Lilly, Protecting Stream Flows
in California, 8 Ecology L.Q. 697 (1979) and A.
Schneider, Legal Aspects of Instream Water Uses in
California (Staff Paper No. 6 Governor's Commission
to Review California Water Rights 1978).
3. Idaho. Note, In-Stream Appropriation for
Recreational Use and Scenic Beauty, 12 Idaho L. Rev.
5. New Mexico. Note, Appropriation By the State
of Minimum Flows in New Mexico's Streams, 15 Natural
Resources J. 809 (1975).
5. Nebraska. Comment, Minimum Stream Flows: The
Legislative Alternatives, 57 Neb. L. Rev. 704 (1978).
6. Oregon. Comment, Preserving Instream Flows in
Oregon's Rivers and Streams, 11 Environmental Law
379, 390-406 (1981).
7. South Dakota. Comment, Maintenance of Minimum
Stream Flows in South Dakota, 23 South Dakota L.
Rev. 181 (1978).
1. R. Dewsnup and D. Jenson, State Laws and In-
stream Flows (March, 1977) Western Energy and Land
Use Team, Office of Biological Services, U.S. Dept.
of Interior Contract No. 14-16-0008-2120 FWS).
-- 2. Johnson, Legal Assurances of Adequate Flows of
Fresh Water into Texas Bays and Estuaries to Main-
tain Proper Salinity Levels, 10 Houston L. J. 598
3. Tarlock, Recent Developments in the Recognition
of Instream Uses in Western Water Law, 1975 Utah
L. Rev. 871.
4. Tarlock, Appropriation for Instream Flow Main-
tenance: A Progress Report on "New" Public Western
Water Rights, 1978 Utah L. Rev. 211.
5. Tarlock, The Recognition of Instream Flow
Rights: "New" Public Western Water Rights, 25 Rocky
Mt. M. L. Inst. 24-1 (1979).
V. FEDERAL PROTECTION OF INSTREAM VALUES. The federal
government may protect instream values directly (1)
by claiming proprietary rights for instream flows,
(2) by withdrawing certain rivers from federal
development or FERC licensing jurisdiction, (3) by
denying or conditioning the right to divert or
impound pursuant to statutes such as the Endangered
Species Act and Section 404 of the Clean Water Act,
and (4) and through administration of the Clean
Water Act generally.
A. Federal Reserved Rights. Federal reserved
rights arise when Congress reserves public land for
a water-related purpose. The federal government
is entitled to the minimum amount of water necessary
to satisfy the purpose of the reservation.
Cappaert v. United States, 426 U.S. 128 (1976).
1. The standards for claiming instream flows
are very strict. United States v. New Mexico,
438 U.S. 696 (1978) denied Forest Services
claims for instream flows and set three thres-
hold standards that must be met. The right (1)
must relate to the original purpose of the re-
servation, (2) an implied versus an express
right must be necessary to prevent the original
purpose of the reservation from being frus-
trated, and (3) the use must be a primary, not
a secondary purpose. See Fairfax and Tarlock,
No Water For the Woods: A Critical Analysis
of United States v. New Mexico, 15 Idaho L.
Rev. 509 (1979).
2. To evade the primary-secondary limitation
announced in New Mexico, the Department of
Interior issued an Opinion claiming the right
to make federal appropriations of unappro-
priated waters arising on public lands for
secondary public land uses. Federal Water
Rights of the National Park Service, Fish and
Wildlife Service, Bureau of Reclamation and
the Bureau of Land Management, 86 Interior
Dec. 553 (1979). The Solicitor's reasoning
as to federal non-reserved rights is suspect
and for the present the Opinion is dead in the
West. See Trelease, Uneasy Federalism-State
Water Laws and National Water Uses, 55
Washington L. Rev. 751 (1980) and Fairfax and
Tarlock, Federal Proprietary Water Rights For
Western Engergy Development: An Analysis of
A Red Herring, J. of Energy Law and
Policy (1981) (forthcoming).
3. Reserved rights may be claimed by Indian
reservations. Winters v. United States, 207
U.S. 564 (1908). The original purpose of the
Winters doctrine was to give Indians sufficient
water to become integrated into a white irri-
gation society. However, Indians now claim
aboriginal water rights to maintain a tradi-
tional tribal culture and economic base such
as fishing and these rights may involve sub-
stantial instream flows. See United States v.
Adair, 478 F. Supp. 336 (D. Ore. 1979).
United States v. New Mexico, however, under-
cuts this theory. See generally Morrison,
Comments on Indian Water Rights, 41 Mont. L.
Rev. 49 (1980).
B. The Wild and Scenic Rivers Act of 1968. This
Act creates a system of federal wild and scenic
rivers. Reaches of rivers included in the system
are protected from dams and other inconsistent
water-related projects; reaches are protected to
some extent from inconsistent upstream or down-
stream developments; land use in the river corridor
is also regulated to enhance the values for which
the river was included in the system.
1. There are three (3) classes of rivers -
wild, scenic and recreational. 16 U.S.C.
2. A river may be included in the system by
an act of Congress, 16 U.S.C. S1274 as amended,
or by the Secretary of Interior's approval of
a state administered river. 16 U.S.C. 51273(a).
3. In addition to permanently designated
rivers. 16 U.S.C. S1276. These are Congress-
ionally designated rivers that must be
evaluated by the Secretaries of Agriculture
and Interior for possible inclusion. Study
Rivers are protected from FERC licensing for
three years after inclusion on the Section
1276 Study list unless a negative recommen-
dation on inclusion is made. 16 U.S.C. S1278,
4. Protection of included reaches from up
and downstream developments is provided by
16. U.S.C. 1278(a)-(b), as amended:
(a) The Federal Power Commission shall
not license the construction of any dam, water
conduit, reservoir, powerhouse, transmission
line, or other project works under the Federal
Power Act, as amended, on or directly affect-
ing any river which is designated in section
1274 of this title as a component of the
national wild and scenic rivers system or
which is hereafter designated for inclusion
in that system, and no department or agency
of the United States shall assist by loan,
grant, license, or otherwise in the construc-
tion of any water resources project that would
have a direct and adverse effect on the values
for which such river was established, as deter-
mined by the Secretary charged with its ad-
ministration. Nothing contained in the fore-
going sentence, however, shall preclude licens-
ing of, or assistance to, developments below
or above a wild, scenic or recreational river
area or on any stream tributary (hereto which
will not invade the area or unreasonably di-
minish the scenic, recreational, and fish and
wildlife values present in the area on October
2, 1968. No department or agency of the United
States shall recommend authorization of any
water resources project that would have a
direct and adverse effect on the values for
which such river was established, as determin-
ed by the Secretary charged with its administra-
tion,or request appropriations to begin con-
struction of any such project, whether hereto-
fore or hereafter authorized, without advising
the Secretary of the Interior or the Secretary
of Agriculture, as the case may be, in writing
of its intention so to do at least sixty days
in advance, and without specifically reporting
to the Congress in writing at the time it
makes its recommendation or request in what
respect construction of such project would be
in conflict with the purposes of this chapter
and would affect the component and the values
to be protected by it under this chapter.
Any license heretofore or hereafter issued
by the Federal Power Commission affecting the
New River of North Carolina shall continue to
be effective only for that portion of the
river which is not included in the National
Wild and Scenic Rivers System pursuant to
section 1273 of this title and no project or
undertaking so licensed shall be permitted to
invade, inundate or otherwise adversly affect
such river segment.
Construction Projects on Rivers on
Rivers Designated for Potential
Addition to System
(b) The Federal Power Commission shall not
license the construction of any dam, water con-
duit, reservoir, powerhouse, transmission
line, or other project works under the Federal
Power Act, as amended, on or directly affecting
any river which is listed in section 1276(a)
of this title, and no department or agency of
the United States shall assist by loan, grant,
license, or otherwise in the construction of
any water resources project that would have a
direct and adverse effect on the values for
which such river might be designated, as
determined by the Secretary responsible for
its study or approval.
The relationship between Agriculture and Interior's
duties and Federal Energy Regulatory Commission
jurisdiction is not clear. The first major case
to consider the issue holds only that the FERC
could license a dam 11 miles upstream from a
study river and hold a separate proceeding to
consider the issue of proper downstream flows.
Swinomish Tribal Community v. Federal Energy
Regulatory Commission, 627 F.2d 499 (D.C. Cir.
C. Federal Permits and Other Federal Actions
Instream Values. Instream values are considered
in all planning and evaluation activity carried
on by the Water Resources Council (which may be
terminated by the Reagan Administration). There
are four major opportunities when the federal
government is required to consider and perhaps to
implement instream flow protection strategies in
connection with specific projects. These are:
(1) federal actions for which an environmental im-
pact statement must be prepared, (2) occasions when
consultation with the Department of the Interior is
required under the Fish and Wildlife Coordination
Act (this will often be done in connection with
NEPA), (3) the evaluation of projects that threaten
endangered species protected under the Endangered
Species Act, and (4) the issuance of Section 404
of the Clean Water Act permits.
a. NEPA. Almost any water resources-related
federal activity will trigger application of
the National Environmental Policy Act. 42
i. No action and enviornmentally ad-
vantageous alternatives such as flow
enhancement are mandated as part of the
requirement that a detailed EIS be
filed, e.g., Save the Niobrara River
Assoc., Inc. v. Andrus, 483 F. Supp.
844 (D. Neb. 1979). However, the Supreme
Court has indicated that NEPAS duties
are essentially procedural and that an
agency in making a final decision on
the merits is not required to give environ-
mental values priority over other values.
Stryker's Bay Neighborhood Council, Inc.
v. Karlen, 444 U.S. 223, (1980).
ii. A project that threatens instream
values may cannot be attacked indirectly
by arguing that the benefit-cost analysis
prepared in connection with the EIS is
technically defective. e.g., Robinson
v. Knebel, 550 F.2d 442 (8th Cir. 1977).
See C. Meyers and A. Tarlock, Water Re-
source Management 2d 577-78 (1980).
b. Fish and Wildlife Coordination Act. The
Fish and Wildlife Coordination Act, 16 U.S.C.
S661-666(c) was passed "to provide that wild-
life considerations shall receive equal con-
sideration and be coordinated with other fea-
tures of water resource development ."
The key enforcement mechanism is mandatory
consultation with the Fish and Wildlife Service
by any U.S. department or agency and any
federal permitted before the project is plan-
ned and constructed. The Fish and Wildlife
Coordination Action may be stronger than NEPA
because (1) it requires that fish and wildlife
values be considered earlier than the EIS
stage, (2) preservation of instream flows is
a legitimate project purpose and (3) mitigation
measures to preserve fish and wildlife may be
i. Mandatory consultation has resulted
in the modification of federal project
design. A Federal Water and Power Service
hydroelectric addition of a third unit
to the Anderson Ranch Power Plant on the
Boise River includes improved year-round
flows in the South Fork of the Boise
River as a result of the consideration
of three alternative operating plans.
Blumm, Hydropower vs. Salmon: The
Struggle of the Pacific Northwest's
Anadromous Fish Resources for a Peaceful
Coexistence with the Federal Columbia
River Power System, 11 Environmental Law
215 (1980) discusses the application of
the Fishland Wildlife Coordination Act
to preserve the Columbia's salmon runs.
ii. The relationship between NEPA and
Fish and Wildlife Coordination Act with
respect to mitigation plans is unclear.
One court has held that the Coordination
Act imposes a duty to include a mitigation
plan in the EIS. National Wildlife
Federation v. Andrus, 440 F. Supp. 1245
(D.D.C. 1977). But cf. Trinity County v.
Andrus, 438 F. Supp. 1368 (E.D. Cal.
c. The Endangered Species Act, 16 U.S.C
SS1531-43, as amended, requires that federal
agencies "ensure" that listed endangered
species are not impaired by a federal activity.
After the snail darter almost stopped the
Tellico Dam project, Tennasee Valley Authority
v. Hill, 437 U.S. 153 (1978), Congress amended
the Act to provide for cabinet level exemptions.
16 U.S.C. S1536.
i. Greyrocks. The first major contro-
"versey to be decided under the 1978 a-
mendments was the Greyrocks Reservoir.
After a district court enjoined construc-
tion of a reservoir in Wyoming to protect
the habitat of the Whopping Crane in
Nebraska (and incidently Nebraska ir-
rigators) and the exemption process was
started. A settlement involving flow re-
leases and a habitat preservation trust
fund was reached.
ii. Telico Dam. The dam failed to get
a committee exemption, but Congress au-
thorized the damn dam. Energy and Water
Development Appropriation Act of 1980,
Pub. L. No. 96-69, 93 Stat. 449. See
generally Harrington, The Endangered
Species Act and the Search for Balance,
21 Natural Resources J. 71 (1981). The
snail darter, however, lives and may even
be delisted. The Wall Street Journal,
May 6, 1981, p. 24, col. 1.
d. Section 404 Permits. It has been argued
that Section 404 of the Clean Water Act may
require the issuing agency to attach minimum
flow release conditions.
i. Navigable Waters are broadly defined,
United States v. Texas Pipeline Co.,
611 F.2d 345 (10th Cir. 1979) and Wyoming
v. Hoffman, 437 (D. Wyo. 1977).
ii. Section 101(g) of the Clean Water
Act, 33 U.S.C. S1251(g), provides that
nothing in the Act will impair state water
allocation law, but this may not immunize
404 diversions from environment con-
ditions. Blumm, The Clean Water Act's
Section 404 Permit Program Enters Its
Adolescence: An Institutional and Pro-
grammatic Perspective, 8 Ecology L. Q.
410, 467-69 (1980).
D. Flow Protection Under the Clean Water Act
1. Dilution is the Solution. A point
source discharger may not receive credit for
discharging into clean water. Weyerhaeuser
v. Costle, 590 F.2d 1011 (D.C. Cir. 1978),
aff.d on variance issue, Envir. Protection
Agency v. National Crushed Stone Ass'n,
U.S. 101 S. Ct. 295 (1980), but
flow levels are factors in setting effluent
limitations. See Township of Parsippany -
Troy Hills v. Costle, 14 ERC 1387 (D.N.J.
2. Non-Degradation. Federal designation
of a river for non-degradation protection may
be a basis to preclude further diversions, if
the effluent returned to the stream would im-
pair the value for instream uses. 43 C.F.R.
S130.17. But cf. 33 U.S.C. S1251 (g) which
expresses a policy against federal encroach-
ment of state water rights.
3. Storage. Pollution abatement is a per-
missible objective of storage, but it can be
a substitute for treatment at the source. 33
U.S.C. S1252. One district court has suggested
that dams may be point sources of pollution.
South Carolina Wildlife Fed'n v. Alexander, 457
F. Supp. 118 (D.S.C. 1978).
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