Title: Maintaining Minimum Stream Flows For Wildlife And Recreation
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Title: Maintaining Minimum Stream Flows For Wildlife And Recreation
Alternate Title: Tarlock, A. Dan, Professor of Law, IIT/Chicago Kent College of Law. "Maintaining Minimum Stream Flows For Wildlife And Recreation,." with three pages of handwritten notes attached
Physical Description: 30p.
Language: English
Creator: Tarlock, A. Dan ( Author )
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 5, Folder 12 ( SF MINIMUM FLOWS AND LEVELS, Volumes 1 and 2 ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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A. Dan Tarlock
Professor of Law

IIT/Chicago Kent College of Law
IIT/Chicago Kent College of Law


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)


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.




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).



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."

(italics added).

H. Literature Sources

State Programs

1. Arizona. Note, Arizona Water Law: The Pro-

blem of Instream Appropriation For Environmental

Use By Private Appropriators, 21 Arizona L. Rev.

1095 (1979).


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.

263 (1976).

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).


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,

as amended.


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

U.S.C. S4331-44.

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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