Water Efficiency for Instream Flow: Making the Link in Practice

Making the Linkin PracticeWaterEfficiencyforInstreamFlow:October 2011A joint project of the Alliance for Water Efficiency, American Rivers,and the Environmental Law Institute

Project PartnersAlliance for Water Efficiency300 W Adams Street, Suite 601Chicago, Illinois 60606www.allianceforwaterefficiency.orgAlliance for Water EfficiencyThe Alliance for Water Efficiency (AWE) is dedicatedto the efficient and sustainable use of water inthe United States and Canada. Based in Chicago,this nonprofit group advocates for water efficientproducts and programs and provides informationand assistance on water conservation efforts.AWE works with over 325 member organizations,providing benefit to water utilities, business andindustry, government agencies, environmental andenergy advocates, universities, and consumers.American Rivers1101 14th Street NW, Suite 1400Washington, DC 20005www.americanrivers.orgAmerican RiversAmerican Rivers is a conservation organizationstanding up for healthy rivers so that communitiescan thrive. With over 65,000 members andsupporters, American Rivers works in five keyprogram areas—rivers and global warming, riverrestoration, river protection, clean water and watersupply—to protect our remaining natural heritage,undo the damage of the past and create a healthyfuture for our rivers and future generations.The Environmental Law Institute2000 L Street, NW, Suite 620Washington, DC 20036www.eli.orgEnvironmental Law InstituteThe Environmental Law Institute (ELI) is a non-profit,non-partisan research and education organization.ELI’s mission is to advance environmental protectionby improving environmental law, policy andmanagement. Since 1969, ELI has been a preeminentsource of information on federal, state, and localapproaches to solving environmental problems.Through its research, practical analysis, and forwardlookingpublications, ELI informs and empowersopinion makers, including government officials,environmental and business leaders, academics,members of the environmental bar, and journalists.Project TeamMary Ann Dickinson, Alliance for Water EfficiencyCindy Dyballa, Alliance for Water EfficiencyMichael Garrity, American RiversAdam Schempp, Environmental Law Institute1 Water Efficiency for Instream Flow: Making the Link in Practice

AcknowledgmentsThe Walton Family Foundationprovided funding for this project.A dedicated and enthusiasticadvisory group gave invaluableadvice, insights and support.The findings are not endorsedby the advisory group or theirorganizations:Larry MacDonnellUniversity of WyomingCollege of LawSteve OlsonArizona Municipal Water UsersAssociationJay SkinnerColorado Division of Parksand WildlifeFrances Spivy-WeberCalifornia Water ResourcesControl BoardBrad UdallUniversity of Colorado andNOAA Western Water AssessmentMike WadeAgricultural Water ManagementCouncilMany throughout the westernU.S. provided insights andinformation through personalinterviews, phone conversationsand emails, sharing draft reports,or attending a one-day workingsession of experts. A specialthanks to Bill Christiansen andAlexa Loftus, Alliance for WaterEfficiency, and Brandon Souza,Agricultural Water ManagementCouncil, for assistance withthe sections on municipal andagricultural water use efficiency.Contents3 Summary6 Chapter 1 Water Efficiency for Instream Flow: OverviewAbout this ReportWater EfficiencyStreamflow17 Chapter 2 Lessons from Experience:Cases from Around the West35 Chapter 3 Legal Setting: The Colorado River Basin47 Chapter 4 Challenges, Incentives and Promising Opportunities:Linking Water Efficiency and Instream FlowsChallenges to Be MetIncentives and StrategiesCharacteristics of SuccessApproaches to PartnershipSetting the Stage for Local ActionConclusion59 AppendicesSeparate Resource Sections on municipal, state and agriculturalwater efficiencyReport and Resource Sections online:www.allianceforwaterefficiency.orgWaterEfficiency forInstream Flow:Making the Linkin PracticeOctober 2011Water Efficiency for Instream Flow: Making the Link in Practice2

SummaryThroughoutthe Colorado River basin, with ever-expandingdemands for multiple water uses and increasingly uncertainsupply, any promising opportunity to do more with less iswelcome. The importance of healthy instream flows, as oneof these uses, is more pressing than ever. Improved waterefficiency can in concept help stretch water supplies and contributeto protection of aquatic environments and the resources and servicesthat they provide.This report summarizes efforts to explore whether water efficiencyefforts can be linked in practice to improved instream flows inareas of the Colorado River basin. In brief, we found that practicalpossibilities to do this do exist within the current context of theriver basin. Given a stream stretch with a clearly identified need forimproved instream flows and a realistic opportunity for improvingwater efficiency, willing partners generally can build the bridgesneeded to overcome other challenges.Project partners Alliance for Water Efficiency, Environmental LawInstitute and American Rivers, each with a different perspective on theissue, posed several key questions which are addressed in this report:1. What is the practical experience in the western U.S. in achievinggreater water efficiencies and applying them to instream flows,and what lessons can we apply to the unique characteristics of theColorado River basin?2. What is the legal setting in each basin state for applyingconserved water to instream purposes?3. What are the practical challenges to using water efficiencyprograms to improve instream flows in the Colorado River basin?4. What are the most promising on-the-ground opportunities—incentives and strategies, characteristics of success, and approachesto partnership—in the basin?The Colorado River basin is perhaps the most challenging riverbasin in the nation: water demand now exceeding supply, valued butfragile ecosystems, and support for nearly every type of water-relevantinterest. Building on this urgency led to this one-year survey projectto explore the link between water efficiency programs and improvedinstream flows in the Colorado River basin. Much is already knownabout how to achieve greater water efficiencies in urban and agriculturalwater use in a given situation. Documented instream flow needsof priority aquatic environments are available in much of the basin.3Water Efficiency for Instream Flow: Making the Link in Practice

Experience Acrossthe WestAcross the West, water from both agricultural andmunicipal water efficiency efforts has been usedto improve instream flows, often in combinationwith other water management efforts. Cases fromaround the West show that while an external legal orregulatory driver, or anticipation of one, can promptaction, cooperation can multiply benefits and aidsuccess. Water efficiency is often just one part of thewater management package. Funding often requirescreativity and multiple sources. Location and scaleof projects vary; successful projects come in all sizesfrom rural headwaters involving just two partners tomajor stream stretches involving many parties.The Legal SettingIt is possible to apply water from efficiency efforts toenhance instream flows in each Colorado River basinstate, but opportunities and legal protections aregreater in some states than in others. A wide arrayof federal and state programs can also affect watermanagement decisions in a single stream as well asacross the Colorado River basin, forming a difficultweb to navigate.The ChallengesA wide range and diversity of challenges arise whenpeople from the Colorado River basin contemplateusing water from water efficiency efforts to helpimprove instream flows. And the obstacles are many:legal, institutional and motivational, economic, andphysical.The traditional characteristics of the prior appropriationsystem of water allocation can appear to be aformidable barrier, particularly procedures associatedwith protection of other water right holders and theconcept of “use it or lose it.” For some, the biggestconcern is potential impairment of existing waterrights because of the complex interactions betweenwater uses. Polarized water interests exist in manyareas. Fear, uncertainty, and a lack of trust can dominateconversations about improved water efficiencyand the use of any resulting water.For others, the biggest question concerns who willpay for these efforts. A disconnect in costs, benefits,and impacts inhibits action. The timing and locationof instream flow needs may not match the water thatcan be made available. Similarly, following the physicaldrop of water may show that greater water efficiencydoes not result in additional water in a particular situation.And since all individual efforts take place in abasin context, unintended consequences may result.Incentives and StrategiesYet many of these apparently pervasive challenges canbe cooperatively addressed on a local or watershedbasis, particularly in cooperation with others. Thecontext is different in each case: the parties, the needs,the concerns, and more. As a result, the approach willvary for each situation. As different incentives motivatedifferent types of willing partners, it is important toidentify the challenges in a particular situation andconsciously find ways to address and even leveragethem.Attitude, trust, and willingness are the most importantkeys to success. These can counteract polarization,attitudes, and lack of motivation. Partnerships arekey for action—one water right holder can’t do thisalone—and leadership is key to partnerships.Initial motivation often comes from outside events,such as anticipated Endangered Species Act actions.While money can really motivate, it is not the only, oroften the primary, factor. Motivations to take actionWater Efficiency for Instream Flow: Making the Link in Practice4

can transcend money—“green” values, water basedrecreation interests, vista preservation, a sense oflegacy for the future.While it is more difficult in some Colorado Riverbasin states than in others, it is possible to link waterresulting from efficiency measures to streamflowimprovement in each state. Where conserved watercan be protected from forfeiture or transferred to aninstream flow use and protected from other waterusers, there is greater incentive to link efficiency andflow. It is important to distinguish between whatthe law allows and the perception of what is legallypossible. Clarifying this can be an important strategyin fostering this link.Promising OpportunitiesPractical possibilities for linking water efficiencyefforts and instream flows exist within the currentinstitutional context of the Colorado River basin.Given a stream stretch with a clearly identified needfor improved instream flows and a realistic opportunityfor improving water efficiency, willing partnersgenerally can build the bridges needed to overcomeother challenges. Creative funding, a defined legalpath, and short-term or pilot efforts are otherindicators of likely success.With a champion or catalyst, willing partners, anda locally tailored approach, more efficient wateruse can be linked to improved instream flows inareas of the Colorado River basin. To forge this linkon the practical level, incentives and approach arebest designed separately for each specific situation.Different incentives tailored to motivate various typesof willing partners are required: for communities,water suppliers, agricultural water districts, farmersand ranchers, nonprofit organizations, governmentpartners, and others.Nonprofits and government agencies can chooseto begin short term efforts that set the stage forlocal action, and strengthen the link between localinstream flow needs and water efficiency efforts.These efforts can work squarely within existinginstitutions.Opportunities can take the form of:An upstream farmer or rancher working witha nonprofit with an interest in streamflowprotection;A community with a direct connection to a streamstretch;An agricultural district seeking to modernize itswater management systems in a way that can alsoreduce or relocate diversions from a river;Three-way arrangements for water use, such astrades among agriculture, streamflow, and a statefish and wildlife agency;A nonprofit with strong local relationships willingto take the lead; andMultiple partners collaborating in a stream stretchto anticipate an upcoming environmental need,whether physical or regulatory.5 Water Efficiency for Instream Flow: Making the Link in Practice

OverviewThroughout the Colorado River basin, withever-expanding demands for multiple wateruses and increasingly uncertain supply, anypromising opportunity to do more with lesswill allow the many uses that the river supports tocontinue. The importance of healthy instream flows,as one of these uses, is more pressing than ever.Improved water efficiency can in concept help stretchwater supplies and contribute to better protection ofaquatic environments and the resources and servicesthat they provide.Much is already known about how to achieve greaterwater efficiencies in urban and agricultural wateruse in a given situation. Documented instream flowneeds for priority aquatic environments are identifiedin much of the Colorado River basin. But addressingthese needs with water made available throughwater efficiency programs has not been adoptedas a ready, common solution, either in the basin orelsewhere.The Colorado River basin, a watershed of 246,000square miles, poses perhaps the greatest watermanagement challenges of any river basin in thenation: water demand exceeding supply, valued butfragile ecosystems, and support for nearly every typeof water-relevant interest. Water must serve multiplepurposes as it travels from headwaters at high mountainelevations to the delta at the Gulf of California.Millions make use of Colorado River water resources,many of them outside the physical boundaries ofthe basin. Uses range from water for agriculture andrangelands, residential and commercial development,industrial manufacturing, mining, energy production,and Native American communities, to ecosystemservices for water-dependent recreation and tourism,endangered and other water-dependent species,wetland health, water quality, broader ecosystemhealth, and more.Over the past few years, a wide range of groupshas called for innovation in addressing these oftenconflicting water uses. Building on this urgent appealled to this one-year survey project to explore thepractical link between water efficiency programs andimproved instream flows in the Colorado River basin.Project partners Alliance for Water Efficiency,Environmental Law Institute and American Rivers eachbring a different perspective and expertise to thisissue—water efficiency, western water law, and riverprotection. We posed several questions:1. What is the practical experience in the westernU.S. in achieving greater water efficiencies andutilizing the resulting water for instream flows,and what lessons can we apply to the uniquecharacteristics of the Colorado River basin?2. What is the legal setting in each basin state forapplying conserved water to instream purposes?3. What are the practical challenges to using waterefficiency programs to improve instream flows inthe Colorado River basin?4. What are the most promising on-the-groundopportunities—incentives and strategies,characteristics of success, and approaches topartnership—in the basin?This report summarizes what we found. In brief, practicalpossibilities for linking water efficiency effortsand instream flows exist within the current contextof the Colorado River basin. Given a stream stretchwith a clearly identified need for improved instreamflows and a realistic opportunity for improving waterefficiency, willing partners generally can build thebridges needed to overcome other challenges.About This ReportThis report is a practical assessment, presentingoptions for localized action, not a firm set of policyrecommendations. It is intended for a diverse audience,but may be most useful for municipal andagricultural water agencies and utilities, state andfederal water policy decision makers, and nonprofitorganizations working in water policy and waterresources management in the basin.This report first highlights current municipal andagricultural water efficiency efforts, to illustrateWater Efficiency for Instream Flow: Making the Link in Practice6

The Colorado River Basin7 Water Efficiency for Instream Flow: Making the Link in Practice

the range of common practice and identify whatworks and what doesn’t, regardless of the purposefor these efforts. It also summarizes availability ofinformation about high-priority streamflow needs inthe basin. This report uses a very broad concept of“water use efficiency” and “water conservation” sincethese terms are defined differently across states andcontexts.Six case studies follow in Chapter 2, drawn fromover 40 candidate examples documented by theproject team, to illustrate the link between waterefficiency programs and improved instream flowsaround the West. Lessons are drawn from this rangeof experience, based on personal interviews withthose involved in the highlighted cases, and availablematerials. Chapter 3 presents an analysis of thelaw relevant to using conserved water for instreampurposes in the basin.The challenges and incentives—legal, institutionaland motivational, economic and financial, physicaland environmental, and water use—to linking moreefficient water use and improved streamflows inthe basin are presented in Chapter 4. These weredeveloped from over 60 interviews of knowledgeableindividuals throughout the basin and the West,along with a one-day working session of selectedbasin experts. The promising opportunities identified,in terms of both characteristics of success andpromising approaches, are the result of analysis andsynthesis of all this information.While the focus is on local, practical opportunitieswith willing partners within the existing basincontext, we also include what we heard about howstates and nonprofits can potentially set the stagefor more local activities. Separate Resource Sectionscontributed by water efficiency experts lead thereader to more information on state level waterefficiency initiatives and examples of currentexperience with municipal and agricultural waterefficiency programs.More Efficient Water Use:Common PracticeMany communities, agricultural water districts,farmers and industries across the U.S. have significantexperience in increasing the efficiency of their wateruse to meet a variety of water supply and environmentalchallenges. Much is already known about howto achieve these greater water use efficiencies, therange of successful practices, and what’s best in agiven municipal or agricultural situation.Municipal Water EfficiencyMany municipalities throughout the U.S. face a widerange of water supply and water resource challenges.This is particularly true in the arid West and amongthe states withdrawing water from the ColoradoRiver, where environmental concerns are prominentand limited water resources are already spread thin.Even when a municipality has sufficient freshwaterresources to meet present needs, forecasts may reveala future demand that grows beyond an existing andperhaps less reliable supply. This imbalance can bepartly or fully addressed through water demand managementstrategies such as water efficiency programs,which are often also called water conservation programseven though the terms are technically different.Water “efficiency” refers to the efficient flow rateof a fixture or device, such as a showerhead; water“conservation” refers to the behavior of the customerthat is using that efficient device, as in taking shortershowers. However, at the municipal program level, theterms are usually used interchangeably.Water Efficiency for Instream Flow: Making the Link in Practice8

Municipal water efficiency programs are a successfulway to deal with a wide variety of needs, and ourcollective experience with them spans over threedecades. Typically most water utilities first targetresidential customer end uses such as toilet flushing,clothes washing, showering, faucet use, lawn irrigation,and other outdoor water use. Water efficiencyprograms are also designed to target specificproblems in growing consumer demand: commercialand industrial water use, peak season demandand the growing phenomenon of outdoor wateruse, or leakage in the water delivery system itself.Municipalities and their water utilities usually employeducation and outreach programs, ordinances, andconservation rate structures as part of their efforts.Motivations behind the implementation of efficiencyprograms vary, but two common reasons are tofacilitate population and economic growth withoutgreatly increasing the need for new or expandedwater supplies and to avoid infrastructure expansionprojects such as building new treatment and storagefacilities for water supply or wastewater. In addition,environmental concerns and state regulatoryrequirements can be driving forces behind waterefficiency programs. And it’s worth noting that just asmotivations for undertaking water efficiency effortsdiffer, so do the results, in terms of reduced surfaceor groundwater withdrawals, the balance of watersupply sources for a specific water utility, and theimpact on streamflows.Targeting the Most Cost-EffectiveStrategiesHow do water utilities target specific end uses andreduce water consumption in their service area? Theycan undertake active water efficiency programs,conduct education and outreach activities, and adoptordinances affecting specific water uses. One of themost popular efficiency program strategies for waterutilities is the product rebate. Customers are givena monetary incentive for purchasing an efficienttoilet, showerhead, clothes washer, smart irrigationcontroller, or other water using device. Sometimeswater utilities offer a direct installation program; or inthe case of toilets or irrigation systems, may require alicensed plumber or contractor to conduct the installation.This insures the device is installed properlyand will perform as it should. Site surveys or auditsare also used to identify water saving opportunities.It is a great way to engage customers, and is veryeffective in commercial and industrial applicationsdue to the great variations in water use in thosesectors.Methodical planning for water efficiency programs isessential. This process is outlined in the diagram onthe next page. It is important that a water utility havean accurate understanding of its supply situation,how its customers use water, and how both of thesethings will change in the future. When the need forefficiency programs is documented and understood,targets and goals can be made. Following this,conservation measures that are suitable for theservice area can be identified and evaluated. At thecore of the evaluation process is the benefit-costanalysis, where the designed programs are evaluatedto ensure that they will save a unit of water moreeconomically than it can be purchased or producedthrough new supply creation. One exception to thisrule is the water efficiency education and outreachprogram. While the savings attributable to thesespecific programs are difficult to separate out fromother program efforts, educating and interactingwith the community is the backbone of any waterefficiency portfolio.Successful Municipal ProgramsResource Section 1 details successful municipalwater efficiency programs from 18 communities in 11states coast to coast. These examples illustrate whatis possible, and indeed practical, among municipalities.These can be used as a reference to identifyand understand the wide range and diversity of bestpractices in urban water efficiency, associated costsand savings, and the types of communities that haveundertaken water efficiency efforts. Information onprogram offerings and reported water savings wasdrawn primarily from each utility’s own website andprinted materials. Programs target mostly residentialcustomers, unless otherwise noted.In order to assist municipalities in planningcost-effective water conservation programs, AWEdeveloped a specialized model. The AWE WaterConservation Tracking Tool is an Excel-based modelthat can be used to evaluate the water savings, costs,and benefits of municipal conservation programs.Resource Section 2 illustrates the water efficiencyprogram planning process for a hypotheticalColorado River basin community using this tool.9 Water Efficiency for Instream Flow: Making the Link in Practice

Source: AWWARF Project 2935: Water Efficiency Programs forIntegrated Water Management, A&N Technical Services, Inc.It demonstrates that water utilities can plan to savea targeted amount of water and that this effort canbe cost effective, meaning the the benefits outweighthe costs. This example provides estimated changesin service area water demand from a sample group ofwater efficiency programs and discussion regardingthe results.State Initiatives and PoliciesIn October 2009 AWE completed a review of existingstate-by-state municipal water efficiency requirementsand initiatives in the U.S. 1 Information fromthe survey for the seven Colorado River basin statesis appended in Resource Section 3. In summary, allof the basin states provide technical assistance forimplementing water efficiency measures. Five of theseven states require municipal water conservationplanning and implementation of water efficiencymeasures for water utilities. And all but one offersome form of financial assistance. In California,both municipal water utilities and agriculturalwater districts signed agreements committing toimplement a suite of appropriate best managementpractices. Since the time of the survey, California hasadopted additional water conservation legislation,with a sweeping target of 20 percent reduction inper person urban water use by 2020, with additionalrequirements for both urban and agricultural watersuppliers, which will lead to more efficient water usein the state. 21 A summary of findings for all 50 states is posted in the AWEResource library: http://a4we.org/water-efficiency-US.aspx.An update is planned for spring 2012.2 California Water Conservation Act of 2009 (Senate Bill X7-7).Water Efficiency for Instream Flow: Making the Link in Practice10

State Water Conservation Initiatives andRequirements for Colorado Basin States, 2009Arizona California Colorado NevadaNewMexico Utah WyomingDoes the state require preparationof drought emergency plans bywater utilities or cities on any prescribedschedule?Does the state have a mandatoryplanning requirement for drinkingwater conservation separate fromdrought emergency plans?Does the state require implementationof conservation measures aswell as preparation of plans?Does the state have the authority toapprove or reject the conservationplans?Does the state have minimumwater efficiency standards morestringent than federal or nationalrequirements?Does the state regulate drinkingwater supplies and require conservationas part of its permittingprocess or water right permit?Does the state allow funding forconservation programs under astate revolving fund? (drinkingwater)Does the state allow funding forconservation programs under astate revolving fund? (wastewater)Yes Yes No Yes No No NoYes Yes Yes Yes No Yes NoYes Yes* Yes Yes No Yes NoYes Yes Yes Yes No No NoYes Yes Yes Yes No No NoYes Yes Yes No Yes No NoYes Yes Yes No Yes No YesYes Yes Yes No Yes Yes YesDoes the state offer other financialassistance? Bonds? Appropriations?Yes Yes Yes Yes Yes Yes NoDoes the state offer direct orindirect technical assistance?Yes Yes Yes Yes Yes Yes YesDoes the state provide statewideET microclimate information?Yes Yes Yes No No No NoSource: Alliance for Water Efficiency State Survey, Oct. 2009 at http://a4we.org/water-efficiency-US.aspx* While California does not literally require specific measures, its mandatory water use reduction goals cannot be met without action.11 Water Efficiency for Instream Flow: Making the Link in Practice

Agricultural Water UseEfficiencyThere’s great experience, and interest, in both onfarmand delivery system water efficiency. Wateruse efficiencies in agriculture can be achieved bothwith refined on-farm distribution practices andimprovements to district-wide water managementand delivery systems. Managing farm water is morethan simply watering the crop once a week. Manyfactors influence how much water it takes to producea crop, including soil type, soil salinity management,temperature, the delivery schedule of irrigationwater and the type of irrigation system being used.Variables within each of these factors make irrigationmanagement a challenging and often difficult taskfor farmers.How Agricultural Water Use EfficiencyDiffers from Municipal WaterConservationMany agricultural districts and farmers, like urbancommunities, have experience with efforts to usewater more efficiently or to reduce the amount ofwater that they are consuming. Farmers use waterto produce food and fiber for the public to consume,much as factories might use steel to manufacturegoods. But as noted above, different factors influenceirrigation management and efficient agriculturalwater use. In agriculture, using more or less waterthan optimal can have serious consequences forproduction and the health of the crop.Agricultural Water ConservationWater conservation in agriculture may take the formof changes to the characteristics of agriculturalwater supply and demand. The Agricultural WaterConservation Clearinghouse at Colorado StateUniversity provides a broad definition of agriculturalwater conservation as including any of the following:Increased crop water use efficiencyImproved irrigation application efficiencyIncreased capture and utilization of precipitationDecreased crop consumptive useIncreased irrigation water diversion and deliveryefficienciesReduced water use through adoption of conservationmeasures and new technologies for watermanagement 3Agricultural Water Use EfficiencyThere are a number of methods commonly usedto help estimate or quantify on-farm water useefficiency. One common method is to consider theamount of water it takes to produce a certain amountof plant growth, a method often referred to as “cropper drop.”The “crop per drop” method, also known as agronomicwater use efficiency, recognizes that differentcrops serve different needs, and values the improvementof growing practices to ensure that farmersare matching water use to the specific needs of theirsituation. Those needs are met through a number offactors.”Crop per drop efficiency” includes a factor known asdistribution uniformity, or the uniform distribution ofwater across an entire field. This in turn affects efficiency.A field may have different soil characteristicsfrom one end to another or may not be perfectlylevel, which could reduce the potential distributionuniformity of the irrigation water applied to the field.Low distribution uniformity increases water use andin some cases the energy needed to pump the waterto produce a crop.3 Agricultural Water Conservation Clearinghouse at ColoradoState University, at http://agwaterconservation.colostate.edu/.Water Efficiency for Instream Flow: Making the Link in Practice12

available. The legal complexities resulting from theseeffects of agricultural water efficiencies are addressedin Chapter 3.Effects of improved agricultural water use efficiencyon instream flows depend on many variables, eachhaving the potential to substantially impact theinstream flow through their effects on water systemmanagement. Potential changes to water use efficiencypractices in agriculture on instream flows mayhave unintended consequences, including changes inthe timing and volume of water initially diverted foragriculture, the potential for increased direct diversionsfor downstream use, alterations to the qualityand quantity of return flows both positive and negative,as well as potential repercussions for conjunctivegroundwater management.Practical Experience with On-Farm andDistrict Water EfficiencyExperience with both on-farm and district waterefficiency for different types of crops and differentwestern U.S. climates and soil types is extensive.Agricultural water managers can turn to severalgovernment and nonprofit sources of information,as well as private sector experts, such as those citedin this section. Several western states have identifiedagricultural practices for water management andefficient use. California, for example, has adopteda list of “efficient water management practices” forwater districts, while the Texas State Soil and WaterConservation Board has a guidebook on best managementpractices for both on-farm water use and forwater delivery systems. 5Both the Natural Resources Conservation Service(NRCS) of the U.S. Department of Agriculture and theU.S. Bureau of Reclamation define and support agriculturalwater efficiency efforts. The NRCS AgriculturalWater Enhancement Program (AWEP), part of theEnvironmental Quality Incentives Program (EQIP),provides financial and technical assistance to farmersto plan and implement conservation practices onagricultural land in project areas that more efficientlyuse surface and ground water and improve waterquality. The Agricultural Management Assistance(AMA) provides cost share assistance to agriculturalproducers to voluntarily incorporate new conservation5 Texas State Soil and Water Conservation Board, 2004 atwww.tsswcb.state.tx.us/files/contentimages/water_conservation_bmp.pdf.Source: Meeting Colorado’s Future Water Supply Needs: Opportunities and Challenges Associated withPotential Agricultural Water Conservation Measures, Sept. 2008, Colorado Agricultural Water AllianceWater Efficiency for Instream Flow: Making the Link in Practice14

activities into their farming operations, includingwater management or irrigation structures. 6 The U.S.Bureau of Reclamation (USBR) supports its west-wideand California-specific lists of best managementpractices with two sources of technical assistanceand funding for implementation—the WaterConservation Field Services Program and theWaterSHARE effort. 7Non-profit, public benefit organizations also exist tohelp water suppliers and farmers improve water useefficiency. For example, in California the AgriculturalWater Management Council provides a voluntaryapproach to efficient water management practicesfor agricultural water suppliers and a system fordetermining which practices are most likely toprovide local benefit, as well as providing informationand resources to farmers working to improvewater use efficiency. 8SummaryEfforts by agricultural water suppliers and farmersto improve water use efficiency in agriculture canbe successful but require consideration of both thepossible benefits and impacts in a particular location.While the potential for improving agricultural wateruse efficiency to effect change on instream flows ingeneral is undetermined, it has worked to enhancestreamflows in specific situations (see for examplecase studies in Chapter 2). Improving agriculturalwater use efficiency intelligently can provideopportunities to maximize water use potential whilemanaging for the numerous variables that exist.Wise agricultural water use efficiency and conservationchoices will also maintain flexibility in farmers’crop selection. Farmers in irrigated regions of thewestern U.S. often must make annual changes totheir cropping choices to respond to water availability,market demands, and other factors. Threeexamples of on-farm and water district efficiencyefforts drawn from California, contributed by theAgricultural Water Management Council, are availablein Resource Section 4. These illustrate not only therange of possibilities in creatively managing wateruse but also provide some indication of the range ofvariables that can be accommodated through intelligentwater use efficiency programs.Instream Flow: How Much IsNeeded and WhenThis report does not attempt an evaluation of thehighly complex science of streamflow assessment.But some points are clear: not just the volume, butthe timing, duration, variation, and location of flowsare important factors in a particular stream reach.Almost every state has its own methodologies fordeveloping flow recommendations for localizedstream segments. The legal context of instream flowrights and protections is somewhat unique in eachstate as well (see Chapter 3 beginning on page35). Several Colorado River basin states have begunstatewide or regional efforts to identify streamflowneeds, including developing ranking systems to assistin identifying the most critical stream stretches. Forpursuing the intersection of water efficiency effortsand instream flow needs, these reaches and theseefforts may be the most relevant.The Arizona Department of Water Resources finalvolume of its state water atlas, for example, presentsa water sustainability evaluation of Arizona water,highlighting (or ranking) the most important environmentalwater resources needs by geographicarea (groundwater basin) in Arizona. 9 A separateUniversity of Arizona Environmental Water NeedsAssessment describes the geographic location and6 NRCS programs are accessed at http://www.nrcs.usda.gov/programs/.7 Agricultural Water Planning Guidebook, 2000, USBR athttp://www.usbr.gov/uc/progact/waterconsv/pdfs/Guidebook2000.pdf.USBR’s Mid-Pacific Region agricultural water conservationcriteria at http://www.usbr.gov/mp/watershare/documents.html.DOI’s WaterSMART website features projects funded by theprogram at http://www.doi.gov/watersmart/html/index.php.8 Agricultural Water Management Council atwww.agwatercouncil.org/.A statewide Memorandum of Understanding on agriculturalwater efficiency provides guidelines for water managementplans and implementation of cost-effective efficient watermanagement practices. A 2009 state law sets additionalgoals for all water users, including agriculture.9 Arizona Department of Water Resources, Arizona StateWater Atlas at http://www.azwater.gov/AzDWR/StatewidePlanning/WaterAtlas/default.htm.15 Water Efficiency for Instream Flow: Making the Link in Practice

focus of nearly 100 studies of environmental waterneeds in Arizona, to identify environmental waterneeds for some rivers and the connection betweenwater availability and ecological health. 10State fish and game agencies have also reviewedinstream flow needs. The Wyoming Game andFish Department five-year plan is one example. 11California’s Fish and Game Department’s InstreamFlow Program develops scientific information onthe relationships between flow and available streamhabitat, to determine what flows are needed tomaintain healthy conditions for fish and wildlife. 12Two related efforts are underway in the state ofColorado. Phase two of the Statewide Water SupplyInitiative identified environmental needs (2007). Andnine regional roundtables (groups of stakeholders)for each sub-basin provide input to the State’snonconsumptive water needs assessments (bothenvironmental and recreational water needs) foreach sub-basin. 13 Similarly, some of New Mexico’s16 locally developed regional water plans addressenvironmental water needs. 14California is embarking on a more complexwatershed-based approach to making the link inone watershed (outside the Colorado River basin)between quantifiable instream flow objectives,water quality standards and criteria, and water rightsadministration. The State Water Resources ControlBoard, in consultation with Fish and Game, developeda list in late 2010 of instream flow studies for138 rivers statewide, as required by state legislation.In August 2010 the Board adopted a flow study forthe Sacramento/San Joaquin Delta ecosystem. TheBoard is now doing the work to set flow objectivesfor the San Joaquin, focusing on the lower river; adraft is anticipated by early 2012 with flow objectivesfor the Delta and Sacramento River, formal adoption,and a water rights proceeding for the entire ecosystemto follow. Water users in each tributary river willneed to find ways to get to that target objective,including water efficiency measures. 15A wealth of other information is available from publicsources, for those interested in a specific location.Main stem Colorado River flows are driven by federalreservoir management and by endangered speciesneeds. Federal habitat conservation plans for endangeredor threatened aquatic species can identifycritical stretches. Biological opinions and environ-mental impact statements for federally sponsoredprojects can provide reach-specific information. TheUpper Colorado River endangered fish recoveryprogram has compiled available technical reports forflow recommendations by river (Gunnison, etc). Andseveral states have active instream flow programs andpolicies that secure these flows once needs aredefined. One is Colorado’s Instream Flow Programthat obtains and holds water rights (mostly junior)for instream flows in specific stream stretches.10 Arizona Environmental Water Needs Assessment Report,Joanna Nadeau and Sharon B. Megdal, University of Arizona,2011 at http://ag.arizona.edu/azwater/pdfs/AZEWNA_Assessment-Mar8-flat.pdf.11 Water Management Unit Five-Year Plan 2006–2010, WyomingGame and Fish Department, April 2006 at http://gf.state.wy.us/downloads/pdf/Fish/5yearplan2006.pdf.12 California Department of Fish and Game maintains a websitewith instream flow information at http://www.dfg.ca.gov/water/instream_flow_docs.html and has made recommendationson 22 priority streams at http://www.waterplan.water.ca.gov/docs/cwpu2009/0310final/v4c10a04_cwp2009.pdf.13 These Colorado efforts, including specific reports, aredescribed at http://cwcb.state.co.us/environment/nonconsumptive-needs/Pages/main.aspx.Statewide initiative reports are found at http://cwcb.state.co.us/public-information/publications/Pages/StudiesReports.aspx.14 New Mexico information is at http://www.ose.state.nm.us/isc_regional_plans.html.15 Personal communication with Frances Spivy-Weber, CaliforniaWater Resources Control Board, August 2011. The State WaterBoard has regulatory authority over both water rights andwater quality; its nine regional boards over water quality only,which includes instream flow levels.Water Efficiency for Instream Flow: Making the Link in Practice16

Lessons from Experience:Cases from Around the WestAwide ranging search for practical experience in the western U.S. linking water efficiencyand instream flow protection yielded over 40 candidate case studies, from individualon-farm water efficiency measures to major city-wide conservation programs and largescaleagricultural district efficiencies. We gave particular attention to several cases thatwe feel shed the most light on this link and best illustrate the range of possibilities.Along with our featured cases we describe other, similar efforts that are also instructive, amongthem canal modernization projects in Washington, Montana and California; several projects ofWashington’s Office of the Columbia River; on-farm projects in Montana, Utah, and Idaho; andmulti-party municipal efforts in California.Cedar River, Washington (metropolitan Seattle)Impact of long-term municipal conservationDeschutes River Basin, Oregon(irrigation district and municipal efforts)Role of the non-profitWACedar RiverManatash CreekORMTNorth Fork Blackfoot RiverGrand Valley, Colorado River, Colorado(Government High Line Canal)Modernizing irrigation diversionsDeschutes River BasinIDWYManastash Creek, Yakima River Basin,Washington (Creek Restoration Project)Impact of agricultural efficienciesRussian RiverNVUTCONorth Fork Blackfoot River, Montana(Weaver Farm)Individual on-farm effortsCAGrand ValleyRussian River, California(Sonoma County Water Agency)More natural flows17 Water Efficiency for Instream Flow: Making the Link in Practice

While there are many successful water efficiency programswest-wide, if a program had no link to instreamflow, however indirect, we did not include it. Likewise,we opted to focus on cases with demonstrableresults rather than models and policies that are as yetuntested. Appendix 1 describes our criteria and liststhe cases we considered. Separate resource sectionsgive examples of successful water efficiency programsundertaken for other purposes.What This ExperienceTells UsSeveral lessons emerge from this wealth of experienceabout what works and what doesn’t in theapplication of water efficiency efforts to improvedinstream flows. The approach or model adapts to thesituation, the participants and their water managementgoals. While an external legal or regulatorydriver, or anticipation of one, can prompt action,cooperation can multiply benefits and aid success.Water efficiency is often just one part of the watermanagement package. Funding often requirescreativity and multiple sources. Location and scaleof projects vary; successful projects come in all sizesfrom rural headwaters involving just two partners tosignificant river stretches involving many partners.Urban and agricultural water efficiency efforts arepractical and can result in water available for otherpurposes, including instream flows.External Drivers OftenPrompt ActionFederal environmental requirements canserve as a driver of action.The Endangered Species Act (ESA) has forced orprovided incentives for many of the instream flowprojects that rely in part or entirely on water fromincreased efficiencies. This influence can come fromlitigation or its threat, or from requirements ofhabitat conservation plans (HCPs) or biological opinions.In some cases, water management actions havebeen undertaken in anticipation of such pressures.Other federal laws that could serve as drivers includethe Clean Water Act, Federal Power Act, FederalEnergy Regulatory Commission (FERC) relicensingprocedures, and U.S. Bureau of Reclamation (USBR)project authorities, though such drivers are not seenin the cases reviewed.Cases: Many, including Grand Valley, Manastash,RussianState water rights decisions can promptthe development of a project.Water right adjudications have prompted agreementsthat include water conservation measures andinstream flow benefits. Some cases involve a legalchange in water rights; others occur despite suchopportunities in law not being available.Cases: SunnysideKey Lessons and Cases That Illustrate ThemCase External driver Funding Cooperation Package ScaleCedarmediumDeschutesmediumGrand Valley largeManastashsmallNorth BlackfootsmallRussianmediummajor factorfactorWater Efficiency for Instream Flow: Making the Link in Practice18

Funding Is Critical to SuccessFunding often requires creativity andmultiple sources.Funding needs for implementing efficiency measuresrange widely. But at least half the cases involveseveral funding sources and some financial creativity.Water efficiency projects often involve upfront investments.When these investments are not individuallyfinancially rational from the water user view, waterright users often are unwilling if not unable to absorbthe entire cost. This may be especially true of agriculturaldistrict costs for technological improvements.Cases: Deschutes, Grand Valley, Columbia BasinProject and many smaller projects such asthe North Fork BlackfootFunding for fisheries improvements can betapped for conservation.The ESA not only creates legal pressure to improveflows, but it often brings along a funding source.Cases we reviewed have tapped funding from theUpper Colorado Recovery Program, Bonneville PowerAdministration (BPA) Fish and Wildlife Program/Columbia Basin Water Transactions Program,ESA Section 6 (habitat conservation) money,Washington Department of Ecology’s ColumbiaRiver Water Management Program, and the PacificCoastal Salmon Recovery Fund. Mitigation fundsindependent of the ESA can also be used to boostflows—some BPA money goes to mitigate for speciesaffected by the federal Columbia River dams, not justfish and wildlife listed under the ESA, though theyare generally prioritized. Even funding for relativelysmall scale projects undertaken by non-profits cancome from fisheries mitigation funds—Montana’sClark Fork Coalition, Oregon’s Freshwater Trust, theWashington Water Trust and Trout Unlimited’s (TU)Water Projects in western states all depend in parton BPA money to work with farmers on farm waterefficiencies. Though our cases did not illustratethis, potential exists in tribal settlements and FERCrelicensing that funded instream flow improvementsin other settings, though not necessarily from waterefficiency measures.Cases: Deschutes, Manastash, North Fork BlackfootFederal and state funding sources forwater efficiency can assist streamflow.USBR WaterSMART programs, for example, havefunded agricultural water delivery system improvements,including more efficient district watermanagement. In some cases this has resulted instreamflow improvements, though flows are not themajor focus of these projects. Other federal and stateprograms targeted at water efficiency efforts couldalso be utilized in this manner.Cases: Sunnyside, Los Molinos, Yellowstone(all WaterSMART projects)Funds can be raised with the promise offisheries or environmental improvements.The raising of capital to support projects thatimprove instream flows, including those that do itthrough water efficiency efforts, can have the addedbenefit of reducing water demand if donations are atleast in theory linked to actual domestic water use.In this way, environmental or fishery improvementscan promote water efficiency. Even where there arenot ESA-listed species, it can help nonprofit groupsto raise money when their projects benefit rare butnon-listed fish like Bonneville cutthroat.Cases: Bonneville Water Restoration Certificates,Conserve to EnhanceCooperation Can MultiplyBenefits and Aid SuccessMultiple parties can work effectivelytogether.Given the complexity of some of these projects, thevarious benefits that result, and the funding needed,the involvement of multiple parties in the developmentand execution of projects can be vital andhas proved successful in a number of cases. Whilelaw and funding play integral roles in allowing andincentivizing projects, little is possible without waterright holders amenable to the changes. The lessencouraging the circumstances of law and funding,the more critical it is to be working with an interestedwater right holder.Cases: North Fork Blackfoot and similar cases,Manastash, Grand Valley, Central Oregon19 Water Efficiency for Instream Flow: Making the Link in Practice

Multiple benefits of a project, to multipleparties, can move it along.Most cases involve cooperation, coordination, and/ornegotiation amongst different parties who mustfirst identify and then act on common interests.Streamflow improvement may only be one of thoseinterests. Small hydroelectric projects, water fordevelopment, stream restoration, and other resultsmay also be a part of the plan. The multiple benefitscan bring additional partners and money and mayactually be the primary reason for the project. Whilethe other benefits have the potential to adverselyaffect the instream flow results, these cases show it’spossible to do both.Cases: Sunnyside (more reliable water supply),Manastash (habitat restoration),Rock Creek (habitat restoration),Deschutes (hydropower)Recreation and fishing interests canmotivate resource protection.Beyond ecological function or any sense of intrinsicvalue of or obligation to nature, human interest ininstream flows for recreation, fishing, or aestheticscan motivate action. More abstract concerns overfuture municipal water supplies and how humanneeds will be met under such conditions can alsomotivate water efficiency projects that have theeffect of increasing flows.Cases: Little Bear Creek, North Fork Blackfoot andsimilar cases, Manastash, Cedar RiverTechnical support and participation ofnon-water user organizations and statescan help.State and/or federal participation, or at least agreement,beyond funding was part of all but the smalleston-farm projects. Resource agencies can play aspecial role by providing information and science.In most cases, a local nonprofit or some other entityhad a role to play as a broker for cooperation andsource of funds. And especially with smaller projects,step by step external assistance with the legal andtechnological aspects of developing the projectimproves its feasibility and likelihood of success.Cases: Little Bear Creek, North Fork Blackfoot, andother similar projectsSuccess breeds success.Neighboring farms and communities are more likelyto borrow ideas and believe they can achieve resultsif success is achieved nearby.Cases: Little BearWater Efficiency Is Often JustOne Part of the PackageMultiple efficiency and watermanagement measures can net instreamflow support.Water for flows need not arise from a single actionfor a given project. A combination of water efficiencyand water management measures, meeting theobjectives of various participants, can result in moreflow and reduce the burden on a single water user orone aspect of water use.Cases: Manastash, Cedar, North Fork Blackfoot,Little Bear, Nine Mile, Badger Creeks,Mono Lake, and othersAgricultural district water managementimprovements can help streamflow.These agricultural district cases involve measures thatmeet a broad definition of agricultural efficiency, andsome do not involve any on-farm efficiency practices.Many involve a package of water managementactions, of which water efficiency (municipal or agricultural)is just one part. Water leasing and transfersare common project partners. Agricultural districtefficiencies achieved through modernization of conveyanceinfrastructure and undertaken for reasonsother than streamflow, while perhaps not reducingconsumptive use, still allow water to remain in astream stretch and rewater it for biological benefit.Cases: Grand Valley, Sunnyside, Los Molinos,Yellowstone, ManastashWater Efficiency for Instream Flow: Making the Link in Practice20

Municipal efficiency measures for otherpurposes can help streamflow.Municipal water conservation is often more aboutreducing the need to develop new supplies ratherthan improve instream flows. But in some instancesconservation has not only stretched the viability ofexisting water supplies well into the future and in theface of population growth but also allowed for moreflexible operation of water storage dams for thebenefit of instream flows and native fish like salmonand steelhead.Cases: Cedar, RussianScale and Location AreSite-SpecificAppreciable instream flow benefits arepossible with small amounts of water.In smaller rivers, tributaries and headwaters, a smallamount of water can make a meaningful differencefor flows and the viability of local native fish populationsin a particular stream stretch or watershed. Thisis true even where there are challenges with flowsfurther downstream, as will often be the case in anoverappropriated river basin such as the Colorado.Cases: North Fork Blackfoot, Manastash, Little BearLarger rivers benefit from multipleapproaches.On bigger rivers, achieving more than incrementalprogress toward instream flow improvementsoften requires actions on not just a farm hereand there, but for entire systems of agriculturalwater distribution and use, such as modernizationof irrigation conveyance systems to operate withless water diverted, or major municipal waterconservation programs.Cases: Grand Valley, Sunnyside, YellowstoneLaw can influence the location of theproject.When conserved water can be changed to anotherpurpose of use, including instream flows, there isgreater security in protection of the conserved waterfrom other potential users. When such protectionsare not available under state law, geography mattersmore: areas with more distance between headgatesreduces the chance of immediate diversion andhence better ensures flow restoration for a largerstretch of stream. Therefore, more isolated areasare often targeted.Cases: Little Bear, Grand Valley, BadgerDe facto instream flows matter for aparticular stream stretch.Protecting conserved water instream is a challenge.Sometimes “de facto” instream flow protection—protection through improved streamflows in practiceif not as an altered water right—works for a considerabledistance downstream. This suggests a focuson getting smaller volumes into specific, targetedstream stretches. Tributaries and headwaters holdthe most promise.Cases: Grand Valley to UT border; Cedar, a shortriver where Seattle is the only major diverter;Manastash from farms to Yakima RiverDefining streamflow needs for a particularstretch is an essential step to action.ESA protections for individual species have served inmany of these cases as a way to define where, when,and how much streamflow improvement is needed.Often, streamflow needs of individual endangered orthreatened aquatic species serve as a surrogate for amore complex development of ecological streamflowneeds. More broadly, regional or statewide assessmentsof streamflow needs can identify potentialareas to target for improved streamflows.Cases: Deschutes, Manastash, Russian21 Water Efficiency for Instream Flow: Making the Link in Practice

Lessons from West-Wide ExperienceTheme Lesson Cases that illustrate thisExternal Drivers ESA Grand Valley, Manastash, RussianState water rightsSunnysideFunding Creativity Deschutes, Grand Valley, Columbia Basin,North Fork BlackfootFisheriesWater efficiencyFundraisingDeschutes, Manastash, North Fork BlackfootSunnyside, Los Molinos, YellowstoneBonneville Certificates, Conserve to EnhanceCooperation Multiple partners North Fork Blackfoot, Manastash, Grand Valley, DeschutesMultiple benefitsRecreation interestsOutside groupsNearby successSunnyside, Manastash, Rock Creek, DeschutesLittle Bear, North Fork Blackfoot, Manastash, CedarLittle Bear, North Fork BlackfootLittle BearEfficiency Package Multiple measures Manastash, Cedar, North Fork Blackfoot, Little Bear,Nine Mile, Badger, Mono LakeAgricultural managementMunicipal efficiencyGrand Valley, Sunnyside, Los Molinos, Yellowstone,ManastashCedar, RussianScale and Location Small volume North Fork Blackfoot, Manastash, Little BearLarger riversLaw’s influenceDefacto flowsDefined needsGrand Valley, Sunnyside, YellowstoneLittle Bear, Grand Valley, BadgerGrand Valley, Cedar, ManastashDeschutes, Manastash, RussianWater Efficiency for Instream Flow: Making the Link in Practice22

Cedar River, Washington:Long-Term Municipal ConservationThe Cedar River drains the Cascade Mountains east ofSeattle before flowing into Lake Washington, whichin turn flows into Puget Sound through the HiramM. Chittenden Locks. The Cedar is Seattle’s largestsource of water, providing about 70 percent of thedrinking water delivered by Seattle’s regional watersupply system, a system that’s the primary supplyfor some 1.3 million people in and around Seattle. 1In the 1990s Seattle had already demonstrated successfulmunicipal water conservation programs. ButSeattle’s water supply remained vulnerable to futureconstraints after Puget Sound chinook salmon weredeclared federally threatened in 1999. 2 This was oneof many drivers that motivated Seattle to significantlyramp up its conservation programs in year 2000.Between 1966 and 1995, Seattle Public Utilities’diversion from the Cedar River averaged 23 percentof the river’s total flow. Although the upper twothirdsof the watershed is municipally-owned andvirtually pristine, the Cedar’s native anadromousfisheries, which include ESA-listed chinook salmonand steelhead trout, have struggled. The relativesignificance of various factors in the decline of thefishery continue to be debated—changes in waterquality, impacts of urban development, a formerlyimpassable diversion dam, disease and geneticissues, ocean conditions, overfishing, predation—but one factor is changes in river flow.The Cedar River was re-plumbed by the U.S. ArmyCorps of Engineers to provide increased water forthe operation of navigational locks connecting LakeWashington to Puget Sound. Until 1916 the CedarRiver flowed into the Black and Duwamish Rivers andthen into Puget Sound, bypassing Lake Washingtonentirely.The Cedar River is a mid-elevation watershed that is“transitional” between being rain and snow dominated.It receives abundant precipitation in winterand little precipitation in the summer. Transitionalwatersheds have been predicted to become morerain dominant in a number of climate change scenarios.These scenarios point to reduced natural waterstorage in the mountain snowpack and will likelyleave watersheds like the Cedar more vulnerable tolow late summer and early fall flows. 3In anticipation of, and eventually in response to, theESA listing of chinook, various stakeholders (includingthe City of Seattle, Seattle Public Utilities, SeattleCity Light, the Muckleshoot Indian Tribe, and variousstate and federal agencies) began negotiating anInstream Flow Agreement and Habitat ConservationPlan. All parties except for the Tribe signed thesein April 2000. The Tribe instead filed a lawsuit inDecember 2003 against NOAA’s National MarineFisheries Service (NOAA Fisheries) alleging that itlacked, among other things, sufficient informationabout the impacts of Seattle’s existing and futurewater withdrawals on chinook salmon. The City ofSeattle joined NOAA Fisheries as a co-defendant,and settlement negotiations commenced.A settlement between NOAA Fisheries, Seattle, andthe Muckleshoots was reached in March 2006. Inexchange for the Tribe’s agreement to drop thelitigation, among other things, Seattle agreed to:Limit withdrawals from the Cedar to no more than124 million gallons per day as an annual averageand a ten year rolling average not to exceed 114mgd. That compares to a historic peak annualdiversion of 144 mgd;Comply with the terms of the Instream FlowAgreement including meeting minimum flowsand supplemental flows beyond the 50-year termof the HCP; andTransfer any perfected portion of its claim thatexceeds 124 mgd to Washington State’s trustwater rights program for instream purposes. 41 Personal communication, Al Dietemann, Seattle PublicUtilities, July 2011. Also www.cityofseattle.net/util/About_SPU/Water_System/Water_Sources_&_Treatment/Tolt_River_Watershed/index.asp.The Cedar River is managed conjunctively with other sourcesof Seattle’s supply (the Tolt River and Highline well field comprisethe other 30 percent). Some individual member utilitieshave other sources of supply as well.2 www.nwr.noaa.gov/ESA-Salmon-Listings/Salmon-Populations/Chinook/CKPUG.cfm.3 https://digital.lib.washington.edu/dspace/bitstream/handle/1773/16529/Lundquist.pdf?sequence=2.4 Integrated Approaches to Riverine Resource Stewardship:Case Studies, Science, Law, People, and Policy, Instream FlowCouncil, Chapter 3 “Cedar River, Washington,” 2008, pp. 62-63.23 Water Efficiency for Instream Flow: Making the Link in Practice

The settlement agreement also included continuedwater conservation efforts to help ensure that flowswould remain adequate for salmon and steelheadand to allow Seattle to grow in population withoutviolating the water quantities specified in the settlementagreement.The City of Seattle has implemented aggressive ratestructure and water conservation programs, includinga variety of rebates on appliances for single andmulti-family residential and commercial buildings.The city has also implemented a program to capneighborhood reservoirs to reduce system lossesdue to cleaning, flushing, and evaporation. (SeeResource Section 1.)The long term water regional water conservationprograms in the City of Seattle and a group of 17neighboring utilities also using water from Seattle’sCedar River diversion have played a significant part inthe reductions in 2009 water consumption of 41 mgdor 24 percent since 1990, while population increased18 percent during that same period. On a per capitabasis, water consumption was reduced from 152 to98 gallons per day. 5 Most importantly for the healthof the Cedar River and its imperiled fisheries, the riverhas consistently met its instream flow commitmentsunder the Agreement and Plan. 65 Regional 1% Water Conservation Program 2009 AnnualReport, pp. 2, 4 http://www.savingwater.org/docs/2009%20Annual%20Report.pdf. Five utilities that were partof the 1% Program left the program in 2004 and are pursuingconservation on their own.6 http://www.seattle.gov/util/groups/public/@spu/@ssw/documents/webcontent/spu02_015213.pdf.Deschutes RiverBasin, Oregon:Role of the NonprofitCentral Oregon’s Deschutes River basin, whichincludes the cities of Bend and Redmond, has anunusual and extensive array of innovative agriculturaland municipal conservation programs underway. TheDeschutes showcases the combined power of agriculturaland urban conservation and efficiency effortsoccurring in the same part of the same river basin,and the role of a nonprofit in these efforts. Effortsto restore and protect streamflows in the Deschuteshave been motivated in part by a need to protectthe health of Endangered Species Act (ESA)-listedsteelhead trout downstream. But they are also aboutmaintaining the Deschutes basin’s quality of life andextensive recreational opportunities, which includefishing, hiking, and rafting.The Deschutes River Conservancy (DRC) has playeda key coordinating and funding role in virtuallyall of the efforts to improve instream flows in theDeschutes and its tributaries. The non-profit DRCformed in 1996 by a broad range of agricultural,governmental, municipal, tribal, and water andenergy utility interests to restore streamflowsand improve water quality in the Deschutes Basinusing collaborative and market based techniques.Through a combination of water leases, permanentacquisitions and efficiency projects, the DRC’sprograms have returned 160 cubic feet per second(cfs) to the Deschutes River and its tributaries. 7 TheDRC has helped local irrigators apply for money forwater conservation projects or water leases from avariety of sources, including the Bonneville PowerAdministration’s water transactions program, theOregon Watershed Enhancement Board, and theNatural Resources Conservation Service (NRCS)Agricultural Watershed Enhancement Program. 87 http://www.deschutesriver.org/About_Us/History/default.aspx. The DRC’s 29 member board operates by 100 percentconsensus.8 Personal communication with Zach Tillman, DRC, Dec. 2010.Water Efficiency for Instream Flow: Making the Link in Practice24

The Deschutes projects are often cited by othersin the west as examples of success. The somewhatunique geology and hydrology of the Deschutes(local volcanic soils absorb an unusually highproportion of water from unlined irrigation ditches,for example 9 ) means that instream benefits canmore easily accrue from conservation and efficiencyprojects. Water protected in the upper Deschutesis generally protected to the point of return flows,which is generally Lake Billy Chinook, a downstreamreservoir.We highlight below several projects involvingirrigation conveyance systems and on-farm irrigation.We also describe a municipal program in Bend anda Bonneville Environmental Foundation programthat funds water leasing rather than conservationand efficiency, but which could be refined to fundconservation and efficiency projects as well ormatch residential conservation program savingswith instream flow improvements as outlined in theUniversity of Arizona Conserve to Enhance concept. 10Central Oregon Irrigation DistrictPiping ProjectThe Central Oregon Irrigation District (COID) piped2.5 miles of open ditch to reduce diversions by 19.6cfs in the upper Deschutes north of Bend. This wateris protected instream through Oregon’s ConservedWater Program, 11 which promotes the conservationof water, maximizes beneficial use of water, andenhances streamflows by requiring that at least 25percent of water saved by a water conservationproject be protected permanently instream. As anadded incentive to the project, the pipe includes ahydroelectric generator capable of producing 5 MW.The project cost $24 million and was funded fromseveral sources—the DRC, US Bureau of Reclamation(USBR), Oregon Water Enhancement Board, OregonDepartment of Environmental Quality (Clean WaterState Revolving Fund) and Oregon Departmentof Energy. 12 COID, primarily an agricultural waterprovider, also supplies industry and municipal usein the basin.Three Sisters Irrigation District Pipingand On-Farm ProjectsSimilar to the COID project described above, theThree Sisters Irrigation District (TSID), locatednorthwest of Bend near the town of Sisters, is in theprocess of a multiphase project, converting 5,200feet of its existing unlined main canal to buried pipeline,installing four new automated fish screen weirgates, and putting into place a Supervisory Controland Data Acquisition (SCADA) system. Over 30 milesof the 60-mile system is now piped. The project isexpected to result in 2,550 acre-feet of water savingsannually in the upper Deschutes. All 2,550 acre-feethas been or will be purchased by the DRC (whichalso helped pay for the project) for a protectedinstream right, complementing habitat restorationefforts in Whychus Creek for threatened steelheadand bull trout and other fish species. In addition toimproving the efficiency of its irrigation conveyancesystem, TSID is working with 30 of its member farmsto switch from rill and wheel line sprinklers to centerpivot sprinkler systems. These on-farm conservationefforts were financed by the NRCS’s AgriculturalWatershed Enhancement Program. 13While the instream benefit of this on-farm conservationhas neither been quantified nor legallyprotected, it complements efforts to boost streamflowsand improve water supply reliability achievedthrough piping the district’s conveyance system. As aresult of these efforts by the district and its partnersthere is a permanently protected minimum flow inWhychus Creek of 15.6 cfs. 14.26 cfs of this flow has apriority dating to 1895 or earlier. The on-farm deliverieshave increased as much as 25 percent at the sametime that instream flows have increased.9 http://www.deschutesriver.org/What_We_Do/Streamflow_Restoration/Water_Conservation/default.aspx.10 http://www.ag.arizona.edu/azwater/conserve2enhance.html.11 In order to put conserved water to a new use, you must gothrough Oregon’s Conserved Water Program (otherwise, it’senlargement of the water right). Conserved water that isused instream is protected to the point of return flows; in thisexample, this is generally Lake Billy Chinook.12 Personal communication with Steven Johnson, COID, Oct. 2010and Zach Tillman, June 2011.13 Personal communication with Marc Thalacker, TSID, Jan. 2011.http://www.tsidonline.org/, http://www.deschutesriver.org/What_We_Do/Streamflow_Restoration/Water_Conservation/default.aspx and http://www.or.nrcs.usda.gov/programs/awep/2009_Project_Areas/fy09/index.html.25 Water Efficiency for Instream Flow: Making the Link in Practice

Avion Water Company’s Blue WaterProgramThe Avion Water Company, one of two privatemunicipal suppliers in the Bend area, partnered withthe DRC to create the Blue Water program, whichprovides Avion customers an opportunity to supportDRC efforts to increase flows in the Deschutes Riverthrough donations automatically added to eachmonth’s water bill. Funds raised through the BlueWater program are allocated to the DRC’s streamflowenhancement efforts (leases only). A total of $14,589has been raised through the program since 2007.Through 2008, Blue Water funds had been used topay for 1,470 acre-feet of water leases, and another1,668 acre-feet of instream flows were expected tobe leased in 2009. 14The City of Bend provides residential water conservationinformation, but no formal conservationprograms. The City’s residential irrigation regulationcontrols outdoor watering.Bonneville Environmental Foundation’sWater Restoration CertificatesUnlike the Blue Water program in the Bend area,anyone living anywhere can purchase a “WaterRestoration Certificate” from the non-profit BonnevilleEnvironmental Foundation (BEF). The programaccepts any donation amount, but one option is todonate an amount based on a calculation of one’shome or business water use and donate funds that“offset” that water use by stream restoration inanother location. The program also provides informationabout more efficient water use. The Deschutesis one of three river basins (the others are the RogueRiver in southern Oregon and Prickly Pear Creek inMontana) that receive funding from this BEFprogram. 15 Restoration projects are screened andselected by the National Fish and Wildlife Foundation.Together in FY10 these programs restored over 11,000acre-feet of water to critically dewatered streams inOregon and Montana.Conserve to Enhance ModelPilot Project in Tucson, ArizonaUniversity of Arizona researchers have proposedto link residents’ concern for environmentalprotection with more efficient residential wateruse. Interest in this innovative model is highwest-wide. The approach is being pilot testedfor the first time in Tucson in 2011.A participant can dedicate a portion of thedollar savings on their water utility bill, earnedfrom more efficient water use, to a specificstream restoration project in the community. Alocal advisory board defines criteria and selectsspecific restoration projects. This pilot programdesign transfers money, not actual water.While the current focus is on residential waterusers, the program could apply across themunicipal sector, to business and industry.For more information see www.cals.arizona.edu/azwater/conserve2enhance and http://watershedmg.org/c2e.14 http://www.deschutesriver.org/Blue_Water/default.aspx andhttp://ag.arizona.edu/azwater/files/SecuringWaterfortheEnvironment_IJS-final.pdf.15 http://www.b-e-f.org/water/cert and personal communicationwith Zach Tillman, DRC, June 2011.Water Efficiency for Instream Flow: Making the Link in Practice26

Grand Valley, Colorado River, Colorado:Modernizing Irrigation DiversionsThe Government Highline Canal in Colorado isperhaps the most prominent example of the modernizationof a large-scale irrigation diversion canalin a manner that has led to significantly reduceddiversions and corresponding improvements ininstream flows. Similar projects, most of which haveyet to be completed, are underway across the West.Together these examples show that while the costof canal modernization projects can vary considerablydepending on scale and complexity, improvedinstream flow in a stream stretch is possible as oneresult of the project.The Government Highline Canal is part of the USBureau of Reclamation (USBR) Grand Valley Project inwestern Colorado. It is located near Grand Junctionand the Colorado River’s confluence with theGunnison River. As part of the multi-agency UpperColorado River Endangered Fish Recovery Program,this project was undertaken to retrofit operation ofthe Government Highline Canal to better matchwater diversions with on-farm demand. Thesereduced water diversions leave more water in themain stem of the Colorado River to benefit theendangered razorback sucker, Colorado pikeminnow,humpback chub, and bonytail. 16Modernized canal infrastructure and systems,including SCADA computerized control systems,in-system storage (seven new and modified checkdams), and new operational procedures, wereprojected to reduce diversions by 28,500 acre-feetof water per year. 17 In practice, the project hasexceeded that goal, reducing irrigation diversionsby an average of 36,463 acre-feet per year over the2002 to 2010 period of operation. Reducing irrigationdiversions also provides the basis for deliveryof stored water in Green Mountain Reservoir toaugment instream flows. 18The project improves flows in the biologically importantbut historically depleted 15 mile reach of theColorado upriver of its confluence with the Gunnison.But these flows, once released from upriver storageat Green Mountain Reservoir in compliance with theOrchard Mesa Check Case 19 and the Green MountainReservoir Historic Users Pool, 20 are protected bylocal circumstances rather than by law. Coloradowater law makes it very difficult to protect conservedwater for instream flow purposes, but the fact thatthere are no other diversions in that stretch of rivermeans that prohibiting others from using that wateris not generally necessary. In some water short years,however, saved water may prove vulnerable to beingintercepted by other water users absent future legalprotection. 21 Water rights in the Grand Valley WaterUsers Association (GVWUA) have been allocated tothe lands through agreements dating from the early1900s between the GVWUA and owners of irrigablelands; when land ownership changes, the water stayswith the land and cannot be sold separately.The project cost was approximately $8 millionin capital costs and $1.25 million in capitalizedannual cost, or $11.73 per acre-foot per year. 22Capital costs were financed by the Upper ColoradoRiver Endangered Fish Recovery Program, which isfunded through federal appropriations, ColoradoRiver Storage Project hydropower revenues, andcash and in-kind contributions from non-federalentities (primarily the states of Colorado, Utah, andWyoming). This amounts to approximately a 50-50federal/non-federal cost share. The increased annualoperations and maintenance costs of the project arefunded through a grant from the Colorado WaterConservation Board to the GVWUA. 23 Additional flowimprovements in the 15 mile reach are planned forthe near future. A similar irrigation canal modernizationproject for the Orchard Mesa Irrigation District16 “Uilenberg and Norman, Grand Valley Water ManagementProject” p. 3.17 http://www.itrc.org/reports/highline/highline.pdf andUilenberg and Norman, “Grand Valley Water ManagementProject” sent via email.18 Personal communication with Brent Uilenberg, USBR, May 2011.19 The Orchard Mesa Check Case was the result of a federalapplication for an appropriative right of exchange waterright in Colorado water court (Case No. 91CW247). Personalcommunication with Brent Uilenberg, USBR, May 2011.20 Uilenberg and Norman, “Grand Valley Water ManagementProject” sent via email.21 Personal communication with Dick Wolfe and Adam Martellaro,Colorado Division of Water Resources, 2011.22 Uilenberg and Norman, “Grand Valley Water ManagementProject” sent via email.23 Personal communication with Brent Uilenberg, USBR, May 2011.27 Water Efficiency for Instream Flow: Making the Link in Practice

on the opposite side of the river from Grand Valleyis being funded through the American Reinvestmentand Recovery Act, and it is expected to yield another17,000 acre-feet per year in instream flow benefits.Construction is expected to commence on theOrchard Mesa project by federal fiscal year 2012. 24The Grand Valley Water Management Project is nowwidely considered a “win-win” for farmers and theenvironment, but it didn’t start off that way. Initially,there was resistance among irrigators to examiningwater use and concern with the ability of the SCADAtechnology to achieve its promise of more preciseand timely water deliveries. Irrigators now largelyembrace the enhanced precision of the new system.While the flow benefits from the Grand Valley WaterManagement Project are clear, the listed species inthe 15 mile reach of the Colorado still face barriers torecovery, among them the unaddressed proliferationof non-native fish species.Similar irrigation diversion canal modernizationprojects include:Sunnyside Irrigation District, Yakima River,Washington (Planned)The Sunnyside Canal Improvement Project is theresult of a settlement agreement between the USBR,the Washington Department of Ecology (Ecology), theYakama Indian Nation, and the Sunnyside DivisionBoard of Control in the Yakima Basin Water RightsAdjudication. Under the agreement, Sunnyside ValleyIrrigation District will reduce its annual diversion by19,450 acre-feet (two-thirds of the water saved by theproject) to benefit instream flows and will retain 9,712acre-feet (one-third) annually to improve the availabilityof water supplies for irrigation.The project is expected to cost about $32.6 millionin year 2000 dollars over a nine year period. FederalWaterSMART grant funds will cover 65 percent oftotal project costs with Ecology and Sunnyside eachpicking up 17.5 percent. The federal Yakima RiverBasin Water Enhancement Program requires thattwo-thirds of the saved water goes instream, which isplaced in trust under Washington’s trust water rightsstatute.Lower Yellowstone, Montana (Planned)The Lower Yellowstone Irrigation Project Board ofControl in Montana will install or improve watercontrol structures, including spillway structures,pumping stations, and monitoring stations, to provideSCADA communications with 17 key sites along theapplicant’s 330-mile distribution system. A new diversionstructure that can accommodate fish screenswill also be installed as part of the Pallid SturgeonRecovery Program. The project is expected to reducethe Lower Yellowstone Irrigation Project’s diversionsfrom the Yellowstone River by 40,000 acre-feet annually.This water will remain in the Yellowstone River.The project is expected to cost $596,826.Los Molinos Mutual Water Company,California (Planned)The Los Molinos Mutual Water Company, locatedin the upper Sacramento Valley near Red Bluff,California, will install computer management systems,a custom Geographic Information System, and SCADAdata loggers to more effectively manage its deliverysystem. The system modernization and conservationproject is expected to result in water savings ofapproximately 3,000 acre-feet annually. Conservedwater will remain in Mill Creek to benefit chinooksalmon and steelhead migration. The entire projectis expected to cost $222,675.24 Personal communication with Brent Uilenberg, USBR, Jan. 2011.Water Efficiency for Instream Flow: Making the Link in Practice28

Manastash Creek, Yakima Basin, Washington:Agricultural EfficienciesManastash Creek begins in the eastern foothills ofthe Cascade Mountains and heads northeast whereit flows into the Yakima River near Ellensburg,Washington. The Manastash Creek RestorationProject is working to improve instream flow, fishscreening and passage in the lower six miles ofthe creek that are affected by irrigation diversionsand infrastructure. The Project is governed by theManastash Creek Steering Committee comprised ofManastash Creek Irrigators, Washington Departmentof Fish and Wildlife, Bonneville Power Administration,Department of Ecology, Yakama Nation, WashingtonEnvironmental Council, and NOAA Fisheries. A 2007plan to restore flows and habitat in Manastash Creekcombines various agricultural water delivery systemefficiencies with improved on-farm efficiency and a“reverse auction” to purchase instream flow rights ona willing seller basis.The creek was historically home to steelhead troutand coho salmon, but steelhead became rare dueto factors both within and outside of the Manastashwatershed, and coho were extirpated when diversionsmade the creek go dry by early summer. Localfarmers irrigate high-grade hay that is sold abroad,as well as sweet corn, wheat and oats in rotation withhay. The area also provides pasture for commercialand smaller scale livestock.In 2001, the Washington Environmental Council (WEC)sent a letter of intent to sue to Manastash Creekirrigators for a “take” of Manastash Creek steelhead,which are part of a larger steelhead population thatis listed as threatened under the Endangered SpeciesAct. WEC alleged that unscreened, impassable, andinefficient water diversions were directly responsiblefor killing the fish. The letter resulted in a meetingin early 2001 that led to a multi-year collaborativeprocess. That process brought about the restorationplan backed by funding from the Washington StateLegislature. In 2003, Jay Manning, then a lawyer inprivate practice who until recently served as Chief ofStaff to Washington Governor Christine Gregoire, saidof the Manastash, “[t]his project is about making real,on-the-ground efforts to conserve water and protectfish habitat, all the while maintaining water use forfarmers.” 25In 2007, the Manastash Steering Committee signedthe “Manastash Creek Restoration Project InstreamFlow Enhancement Implementation Plan” which aimsto enhance flows and habitat in Manastash Creek withthe ultimate goal of reducing the length and durationthat the 3.25 mile stretch is dewatered. The projectinvolves converting ditches to pipe, consolidatingfour irrigation diversions into one, improving on-farmefficiency (mostly rill irrigation to sprinkler irrigation),and a “reverse auction” to purchase instreamflow rights on a willing seller basis. One of the keysto success is providing better fish passage throughthe lower five miles of the Manastash Creek, wherepassage was historically poor due to low (or no) flowsand physical barriers such as a diversion dam. Abovethat point, the stream has more than 20 miles of highquality fish habitat.The on-farm improvements and water acquisitionhave cost $2,429,357.85 26 to date and have put 6.4 cfsback in the creek, meeting the project’s Phase Onegoal of 6 cfs. Of the 6.4 cfs secured to date, abouthalf is the result of on-farm conservation (convertingrill to sprinklers). The rest has come from a “reverse”water rights auction conducted by Washington RiversConservancy (now the Washington Water Project ofTrout Unlimited). 27 Additional project componentswill pipe approximately 3,000 feet of unlined district25 “Partnership Launched Between WEC and Farmers, WECNewsletter, Autumn 2003.26 Email correspondence with Sherry Swanson, KittitasConservation District, May 2011.27 Personal communication with Sherry Swanson, Kittitas CountyConservation District, February 2011 and with Lisa Pelly, TroutUnlimited, April 2011.29 Water Efficiency for Instream Flow: Making the Link in Practice

ditch with a net water savings of 0.8 cfs. In addition,there are currently pending acquisitions of another3–5 cfs of water. These efforts have the potential tore-wet a portion of the stream that is typically dryduring the summer and early fall.According to a biologist with NOAA Fisheries,Manastash Creek could provide habitat for more than50 spawning pairs of steelhead per year and potentiallymore than 1,000 coho salmon. 28 The projecthas been funded by the Washington Water Projectof Trout Unlimited, Kittitas County ConservationDistrict’s Bonneville Power Instream Flow grant, theWashington Dept. of Ecology and its Columbia RiverWater Management Program, Bonneville Power’sColumbia Basin Water Transactions Program, WSCCIrrigation Efficiencies Grant Program and the NRCSAgricultural Watershed Enhancement Program. 29Washington’s Office of the Columbia River, whichis helping fund piping of an unlined irrigationditch that will improve flows in Manastash Creek,was created by an innovative 2006 state watermanagement law. The law has broken a gridlockbetween water users seeking new water rightsor more certain water supplies on one hand,and environmentalists and tribes seeking flowimprovements for salmon and steelhead, on theother. New water rights are now being issued, andthere are several projects completed or underwayto improve streamflows, particularly in tributaries ofthe Columbia River. The law provided $200 million infunding to be split among new surface and aquiferstorage, re-operation of existing reservoirs, andconservation and efficiency projects.In addition to contributing to more efficient irrigationconveyance in the future at Manastash Creek, theOffice of the Columbia River is funding the completionof two large efficiency projects with benefits forstreamflows:Barker Ranch, Yakima River, WashingtonThis project involved canal piping to a restoredwetland refuge that depends on irrigation water.Between 3.5 and 10 cfs, depending on the month, isconserved, totaling 6,436 acre feet/year on the watershortlower Yakima River at a cost of $5.6 million. 30The wetlands on Barker Ranch support at least 175different species of birds as well as other terrestrialwildlife like coyotes, badgers, and deer. 31Columbia Basin Project Irrigation Districts,Columbia River mainstem, Oregon/WashingtonThis project of three related irrigation districts (East,South, and Quincy) involves piping and lining ofopen ditches to save 5,450 acre-feet of ColumbiaRiver water. The water is not left instream, rather itis spread to a groundwater-dependent area that isrunning out of water and would otherwise requiremore water from the Columbia River or would needto convert to dryland farming. The cost of the projectis $3 million. 3228 http://www.cbwtp.org/jsp/cbwtp/stories/stories.jsp.29 Personal communication with Sherry Swanson, Feb. 2011.30 http://www.ecy.wa.gov/programs/wr/cwp/barker.html.31 See http://www.ecy.wa.gov/programs/wr/cwp/crwmp.htmland http://www.ecy.wa.gov/programs/wr/cwp/images/pdf/projectmap.pdf.32 http://www.ecy.wa.gov/programs/wr/cwp/CBID.html.Water Efficiency for Instream Flow: Making the Link in Practice30

North Fork Blackfoot River, Montana:Individual On-Farm EffortsA growing number of cases around the West partnerindividual farmers and ranchers with non-profitorganizations to make their irrigation practices moreefficient, often in combination with other restorationwork. A prime example of this sort of project involvesJohn and Irene Weaver, long-time ranchers nearOvando, Montana who worked with the MontanaWater Project of Trout Unlimited (TU) to make theirrigation supply for their pasture much moreefficient. The project has significantly benefitedESA-listed bull trout.Prior to being approached by TU, the Weavers hadobtained their irrigation water by diverting 20 cfs intoan old, leaky canal well upstream of their property.The canal took a lot of work to maintain, and theprospect of a lower maintenance, higher efficiencysystem appealed to the Weavers. 33 By replacing thecanal and upstream diversion with a two cfs pumpdirectly from the river and by converting from wheellinesprinkler irrigation to a center pivot sprinkler,the Weavers were able to execute a 30-year lease of18.5 cfs to TU for instream purposes.The instream flow improvement has made a bigdifference to local bull trout, which now are able toreach upstream spawning grounds. Trout Unlimitedfunded the project and walked the landownersthrough the process. The Weavers are happy tohave been involved in the project for its streamflowbenefits, and have found the new system to be easierto operate and maintain. “Every year, it took us aboutfour to five days of dang tough work to clean thatditch,” said John Weaver. “I’ve wanted to get off thatditch for years. Because of the financial help, I finallygot it done.” 34 Funding partners on this projectincluded the US Fish and Wildlife Service (FWS), theBig Blackfoot Chapter of TU, the Columbia BasinWater Transactions Program, and the Weavers.Partnerships have been the key to the success ofthe Blackfoot Project. Partnerships take many formsincluding technical expertise, financial assistance,materials, in-kind labor, and moral support. Keypartners include private landowners, TU and othernonprofits, Montana state agencies, several federalagencies, North Powell Conservation District, severalfoundations, Plum Creek Timber Company, MontanaPower Company, Orvis Company, and many others.Similar small-scale but biologically significant on-farmefficiency projects exist around the west, partneringfarmers and nonprofits, including:Little Bear Creek, Cache Valley, UtahA farmer switched from flood irrigation to a combinationof center pivot and pit irrigation, and movedthe diversion from this cutthroat trout-bearing creekdownstream to the South Fork of Bear Creek. Thisdoubled the flow (from 3–6 cfs) in a 7.2 mile sectionof Little Bear Creek. The water pressure for the centerpivots provides micro-hydro, and the whole projectonly cost about $250,000. It was coordinated by theUtah Water Project of TU. A neighbor of the farmer isnow interested in doing a similar project on his land,which will further benefit the flows in the creek. 35Nine Mile Creek, Tributary to Little ClarkFork, MontanaNine Mile Creek flows into the Little Clark Fork andhas a significant bull trout and westslope cutthroatpopulation. Improved on-farm efficiency (wheel lineinstead of flood), decommissioned ditches, downstreammovement of a diversion pump, discontinuedirrigation on part of a ranch, and restoration of anarea around an old pump composed the project,which was coordinated by the Clark Fork Coalition.The project received $75,000 for the wheel line fromthe Bonneville Power Administration’s ColumbiaBasin Water Transactions Program.33 Personal communication with Stan Bradshaw, TU, Feb. 2011.34 http://www.tu.org/waterpartners.35 Personal communication with Tim Hawkes, TU, Nov. 2010.31 Water Efficiency for Instream Flow: Making the Link in Practice

Badger Creek, Little Lost River Drainage,IdahoTU worked with landowners on Badger Creek, a bulltrout spawning tributary, 36 to reconnect the streamwith the Little Lost River and to restore a half-milesection of Badger Creek. One farming and ranchingfamily owns all of the private land surrounding theconfluence of Badger Creek with the Little LostRiver, and they historically diverted all its water foragricultural operations. TU worked with the familyto change their point of diversion from BadgerCreek to the Little Lost River, using FWS funding toinstall a new diversion with fish passage on the LittleLost River and NRCS funding to install a gravity-fedpipeline and center pivot irrigation system. This hasresulted in less water diverted for irrigation whileincreasing agricultural productivity. Because ofthe conversion to center pivot sprinklers, a smalleramount of water will be diverted from the BadgerCreek/Little Lost River system.The difference will remain instream, although it willbe available for diversion by the water right holdersif they revert to flood irrigation. In addition, irrigationwater is now taken from the Little Lost River, which iswater quality impaired, and leaves cold, clean waterfrom Badger Creek instream, reconnecting 6.4 milesof spawning habitat. The new point of diversionallowed TU to negotiate a 30-year non-diversionagreement with the irrigators on Badger Creek usingthe Columbia Basin Water Transactions Program. Thenon-diversion agreement ensures full natural flows;the diversion was removed as part of the restorationeffort, and there are no other downstream diverters.Using a mix of funds from private, state, and federalsources, TU also restored and fenced Badger Creekto improve habitat. Recent fish population researchshows that the reconnection and restoration projecthas benefited bull trout spawning in Badger Creek.Rock Creek, North Fork BlackfootDrainage, MontanaA rancher with 80 acres of pasture converted fromflood irrigation to center pivot on 55 acres with theassistance of TU. The conservation on the ranch,which had formerly dried up the creek duringirrigation season, blocking migration of both fluvialwestlope cutthroat and bull trout to upstreamspawning grounds, now allowed at least 1.5 cfs toremain in the stream under a lease. In combinationwith floodplain and riparian restoration activities, theon-farm efficiency has kept the middle reaches of thecreek flowing during critical westslope cutthroat andbull trout migration periods since 2005. 37 Fundingpartners in the Rock creek project included the BigBlackfoot Chapter of TU, NRCS, and the ColumbiaBasin Water Transactions program.36 http://www.tu.org/waterpartners, personal communicationwith Scott Yates, TU, Nov. 2010.37 Personal communication with Stan Bradshaw, Feb. 2011.Water Efficiency for Instream Flow: Making the Link in Practice32

Russian River, California: More Natural FlowsIn the Russian River, municipal water efficiencyprograms contribute to a more natural flow regime,which is necessary to create more natural habitat forendangered coho salmon and threatened steelheadtrout. Achieving more natural flows requires reducingwater releases from an upstream dam in the summer,which must be accompanied by reduced downstreamdiversions in the summer. Together these actions canprovide higher flows in the fall when another speciesof salmon, chinook, is returning. Taken together,these actions to restore a more natural hydrographrequire significant on-the-ground water efficiencyefforts downstream by water users including theSonoma County Water Agency.Historically, the Russian River has been managedwith unnaturally high flows in the summer in orderto allow for water diversions for municipal andagricultural uses, as well as to provide recreationalopportunities. But when the central California coastpopulations of coho salmon, steelhead, and chinooksalmon were listed under the ESA (in 1996, 1997, and1999, respectively), it became clear that action tocreate a more natural flow regime would be necessaryto protect these imperiled fisheries. Rampingup more efficient use of municipal and agriculturalwater in and around Russian River basin communitiessuch as Santa Rosa (in Sonoma County) and Ukiah (inMendocino County), along with reducing minimumsummer instream flow requirements, will help contributeto creating a more natural flow regime.NOAA Fisheries determined in a 2008 BiologicalOpinion on Russian River coho and steelhead thatsummertime flows should be reduced from as high as185 cfs to 125 cfs in the upper river, and from as highas 125 cfs in the lower river, down to 70 cfs. 38 Thesesummertime flow reductions create better habitatconditions for coho and steelhead, and also allowmore cool water to be stored behind an upstreamdam for release in the late summer and early fall forthe benefit of adult salmon returning to spawn.Implementing these flow reductions necessitateschanging a 1986 decision by California’s State WaterResources Control Board (State Water Board) thatmandated the historically higher flows. To accomplishthis, the Sonoma County Water Agency (SCWA),which is also the County Board of Supervisors, isinitially seeking permission on a year-to-year basisto manage the river at flows below those called forby the 1986 State Water Board decision. After anenvironmental review is completed in 2013, SCWAwill be in a position to ask the State Water Board fora permanent change to the 1986 decision. 3938 http://www.scwa.ca.gov/files/docs/projects/rrifr/rrifr%20flier%20flow%20changes%202010%20final.pdf.39 Id. and personal communication with Pam Jeane, SWCA, Jan.2011. Also http://library.municode.com/index.aspx?clientID=16484&stateID=5&statename=California.The State Water Board has been supportive of this temporaryreduction in instream flow requirements through its 2009temporary order.33 Water Efficiency for Instream Flow: Making the Link in Practice

While obtaining permission from the State WaterBoard to implement the lower flows gets SonomaCounty Water Agency and other Russian River watermanagers over a key administrative hurdle, on-thegroundaction by SCWA is also underway, in the formof implementing significant water conservation andefficiency programs. A primary measure to achievethis goal is utilizing water budgets for commercialirrigation within the Sonoma County Water Agency’sservice area. This primarily affects summer diversions.Other conservation tactics currently employed bySCWA and other local water managers include publiceducation campaigns, cash for grass replacement,incentives to use graywater and harvest rainwater,and implementation of California Urban WaterConservation Council Best Management Practices. 40The state’s permanent change to the 1986 StateWater Board decision is expected to include waterconservation and efficiency requirements, whichwould institutionalize some of these efforts.To date, flows in the river have more closely reflectednatural levels, but they have not always met thelevels outlined in the biological opinion. In 2009, thecombination of water conservation and a droughtallowed the Russian River to meet target flows. Awetter year in 2010 resulted in higher flows thanwere sought under this opinion, but flows werenevertheless lower than they had been previously.In a separate effort, local grape growers, in responseto winter low flows, are instituting frost controlmethods on local vineyards that are less waterintensive.While this does not contribute to summerinstream flow reductions for endangered species,it has some impact on nighttime spring flows andthrough sudden changes in river and tributary flowsmay affect salmon and steelhead. 41 It also illustrateswhat may be possible in agricultural water efficiency.NRCS-suggested water efficient practices that protectcrops from frost without impacting salmon habitatinclude various types of wind machines, retrofittingof sprinkler heads, and incorporation of on-siteweather stations to improve timing and applicationof water.40 http://www.scwa.ca.gov/files/docs/projects/watersupply/Water_Supply_Strategy_Action_Plan_BOARD_PRESENTATION_SEPTEMBER_2010.pdf.41 Sonoma County Winegrape Commission, Water Conservation,Frost & Irrigation at http://www.sonomawinegrape.org/frost.Mono Lake, CaliforniaIn the late 1990’s a municipal water conservationprogram helped save water for environmental restoration—inthis case streams flowing into Mono Lake andthe Lake itself. In response to a 1994 State Water Boardorder to halt water withdrawals and raise lake levels,the Los Angeles Department of Water and Power, whileinitially reluctant, implemented a major efficient showerheadand toilet retrofit program. Los Angeles hadalready demonstrated the feasibility of reduced shortterm water use (20 percent in 1991-92), in response todrought conditions. Los Angeles water conservationprograms have reduced long-term water use comparedto early water use projections. Documented watersavings are available for this effort, which is somewhatunique in that it is based on a decision relying on thepublic trust doctrine.Sacramento Water Forum Agreement,American River, CaliforniaThe American River is prized for recreation as well asits fisheries and water supply. This negotiated agreementamong 40 diverse interests in 2000 seeks a wayto maintain more reliable water supplies and sufficientinstream flows to protect the lower American River andsupport native salmon and steelhead. Municipal waterconservation best management practices and conjunctivemanagement of surface and groundwater are buttwo of seven elements of the multifaceted agreement,which also describes diversions and supply projects.While agricultural districts are part of the agreement,specific agricultural efficiency measures were notincluded; for districts using federally supplied waterfrom the Central Valley Project, different agriculturalefficiency requirements apply, and those using groundwaterare subject to groundwater provisions of theagreement.In the ten years since the agreement was signed, somemunicipalities have put in place conservation plans andmeasures. Streamflow levels have been incorporatedas part of protections for fisheries flows. But formalfederal USBR and State Water Board approvals have notyet taken place. And savings from these efforts are notwell documented. Permanent approval would requirere-operating the federal Folsom Dam on a permanentbasis for fisheries flows as well as hydropower andwater supply. A “successor agreement” governs implementationof the original 30 year pact and refinementof agreements.Water Efficiency for Instream Flow: Making the Link in Practice34

The Legal Setting in theColorado River BasinThe law—in the form of numerous statutes,regulations, ordinances, programs, compacts,contracts, and other governmental andnon-governmental instruments—significantlyinfluences what can be done with water,when, and where in the Colorado River basin. Almostany action will have a unique set of legal considerations,so a case-by-case analysis is nearly inevitablefor any project that seeks to use water conservation 1efforts to benefit instream flows.Due in large part to the federal role in damoperations and the provision of water, U.S. Bureau ofReclamation and Army Corps of Engineers regulationsand contracts shape water management in manyparts of the basin. Also looking basin-wide, what hascome to be known in short-hand as the Law of theRiver identifies water allocation to each state, priorityof water usage among certain states, and even waterquality requirements and more. While the Law of theRiver primarily addresses interstate water affairs, itinfluences what is done in each state and can affectconservation efforts and instream flow protections.State law in the seven basin states also plays a significantrole as it sets the base parameters for whatcan and cannot be done with water and what proceduresare required. 2 For all seven basin states, thedoctrine of prior appropriation is the dominant, if notexclusive, means of water allocation. 3 In short, priorappropriation is the first-come, first-served approach.Traditionally, the oldest right is completely fulfilled,then the next oldest, and so forth down the lineuntil there is no water left to allocate. In addition,prior appropriation has two key tenets: the no-injuryrule, which protects water rights from impairmentby others, and the doctrine of forfeiture, commonlyknown as “use it or lose it.” Each state has its owninterpretations of, exemptions to, and modificationsof this basic system of allocation, which can and hasresulted in widely varying opportunities betweenstates for water conservation, instream flow protection,and combinations of the two. Therefore, eachstate is addressed independently below rather thanas a collective.Importantly, all discussion of using conserved waterfor instream flow purposes involves a change of useof an existing water right, not a new appropriation ofwater. Conserved water comes from an existing use,and hence an existing water right, that is requiringless water. So when conserved water is sought to beused for instream flow purposes, it is a change in thepurpose and place of use of the existing water rightrather than a new appropriation. This is a significantdistinction because laws often treat new appropriationsdifferently from changes in existing waterrights, particularly when it comes to instream flow.Federal InfluenceMany federal statutes and regulations affect or havethe potential to affect water management in theColorado River basin. They can create obstacles toor provide opportunities for water conservation andinstream flow protection. The Clean Water Act establishesthe primary framework for federal, state, andtribal regulation of water quality and has the potentialto affect flows through discharge permits andwater quality standards such as aquatic life use. TheEndangered Species Act can affect water uses andmanagement actions that may harm a threatened orendangered species, and its application to federalwater projects has generated serious controversy inthe West. In addition, the National EnvironmentalPolicy Act, Rivers and Harbors Act, Water ResourcesDevelopment Act, Safe Drinking Water Act, and otherfederal laws can have varying degrees of influenceon water management decisions.1 The meaning of the terms “water conservation” and “water useefficiency” varies across states and contexts, both legally and inpractice, so they are intentionally not defined here. Identifyingwhat does and does not qualify as a water conservation or useefficiency project or program under specific laws is outside thescope of this legal summary.2 See, e.g., Charlton H. Bonham, Perspectives from the Field: AReview of Western Instream Flow Issues and Recommendationsfor a New Water Future, 36 Envtl. L. 1205, 1208 (2006); RuthMathews, Instream Flow Protection and Restoration: Setting aNew Compass Point, 36 Envtl. L. 1311, 1324-5 (2006).35 Water Efficiency for Instream Flow: Making the Link in Practice

The U.S. Bureau of Reclamation (USBR) and, to alesser extent, the Army Corps of Engineers (Corps)play a more direct role in the management of waterin the Colorado River basin. 4 Their water controlprojects result in a significant quantity of storedwater, water that can be delivered under contractto certain water users under defined circumstances.USBR is the largest wholesale water supplier in thecountry, providing one out of five western farmerswith irrigation water and part of the water supplyfor over 30 million people. 5 USBR’s Lower ColoradoRegion acts as the water master for the ColoradoRiver from Lee Ferry to the Mexican border; to useany Colorado River water within that reach requires awater delivery contract with the Bureau. 6 As a result,USBR’s participation in any water management decisionsis often valuable if not necessary throughoutthe basin and particularly the lower basin. Importantto note in this context, USBR has signaled its interestin water transfers through a policy explicitly seekingto facilitate temporary and permanent voluntarytransfers of project water from existing to new usersand uses, pursuant to state and federal law. 7The Corps, by contrast, is more limited in its roleas water provider. It can enter into agreements toprovide water for municipal and industrial uses whenit would not adversely affect the existing uses of thatwater. 8 Water in reservoirs operated by the Corpsmay be used for irrigation purposes if the Secretaryof the Interior recommends and the Secretary of theArmy determines that such is warranted. 9 The Corpsmay be a relevant party depending on where in thebasin the proposed activity is located.In addition, the federal government owns a significantportion of land in the Colorado River basin.Where the federal government has designatedcertain lands for a specific purpose, those landsmay have a right under federal law to receive theminimum quantity of water needed to fulfill thatpurpose. 10 Such “reserved rights” are usually determinedin state courts, however, and are generallynot recognized or protected until they have beenjudicially confirmed.Also of note, the United States Supreme Court hasoriginal jurisdiction over controversies involvingtwo or more states, 11 meaning that it plays animportant role in this arena by being the final arbiterof interstate water allocation and compact disputes.Its recent decision in Montana v. Wyoming, 131 S.Ct.1765 (2011) may influence water conservation as theCourt held that the doctrine of prior appropriation inMontana and Wyoming allows water right holders tomake their irrigation systems more efficient (throughinstallation of sprinklers), even to the detriment ofdownstream water users. The analysis of this decisionand influence of the Supreme Court suggests that asimilar result could occur in other states.3 David H. Getches, Water Law in a Nutshell, 7-8 (2009).4 See, e.g., A. Dan Tarlock, The Future of Prior Appropriation inthe New West, 41 Nat. Resources J. 769 (2001).5 http://www.usbr.gov/main/about/fact.html.6 See Boulder Canyon Project Act, 43 U.S.C. § 617.7 See 2001 Bureau of Reclamation Policy on Voluntary Transfersof Project Water, http://www.usbr.gov/recman/wtr/wtr-p02.pdf.8 33 U.S.C. § 708.9 Id. § 390.10 See, e.g., United States v. New Mexico, 438 U.S. 696 (1978).11 U.S. Const. art. III, § 2.Water Efficiency for Instream Flow: Making the Link in Practice36

Law of the RiverA series of laws, agreements, and court decisionsover the course of many decades comprise the Lawof the River. The Colorado River Compact dividedwater between the upper and lower basins of theriver. 12 The Boulder Canyon Project Act apportioned7.5 million acre feet (MAF) per year among the threelower basin states, 13 and the Upper Colorado RiverBasin Compact did the same for the upper basinstates. 14 The Mexican Water Treaty of 1944 guaranteed1.5 MAF per year to Mexico, 15 and Minute 242of the U.S.-Mexico International Boundary and WaterCommission of 1973 set salinity requirements forthose deliveries to Mexico. 16 The Colorado River BasinProject Act authorized the construction of the CentralArizona Project and prioritized California’s rights toColorado River water over those used by the CentralArizona Project. 17 More recently, the Department ofthe Interior authorized interim operational guidelinesfor Lake Powell and Lake Mead during drought andlow reservoir conditions, including agreed-upondelivery reductions for Nevada and Arizona in yearsthat Lake Mead is projected to be at or below certainwater levels. 18These and other aspects of the Law of the River createmuch of the overarching structure for water-basedrelations in the Colorado River basin, but their impacton water conservation efforts is not necessarily director always evident. The threat of a compact call, effectivelya demand by the lower basin states of the waterdue to them under the Colorado River Compact, hasthe potential to encourage water conservation effortsin the upper basin because it could help with weatheringa call. Also, with the increasing potential for acall, new appropriations of Colorado River water arenot as secure as once thought; conservation can bea more reliable approach to meeting new demands.Furthermore, as rights in stored water in basin reservoirsbecome more quantifiable and transferable,year to year and party to party, water banking andtransactions may add more incentive to conserve.The opportunities for and obstacles to water conservationfrom the Law of the River extend beyondthese few examples and are likely to change in thecoming decades.The effect of the Law of the River on instream flowprotection, however, is more evident and generallygrimmer. Quantifying the water rights of each statein the basin has led to a mentality of keeping thatfull allocation in-state unless forced to give it up, forexample through a compact call. The fact that thelargest demand for Colorado River water is in thelower basin has only added to this protectionism;some believe instream flow rights are a potential toolfor lower basin states to draw more water from upperbasin states.In this vein, several states have enacted geographiclimits to instream flow rights, and two states explicitlyreference compact rights. In Colorado, instreamflow rights and recreational in-channel diversionsare prohibited from preventing the full developmentand consumptive beneficial use of waters availableby law and interstate compact. 19 In Wyoming,instream flow rights are prohibited from causingmore water to leave the state than is allocated byinterstate compact for downstream uses, and anyonemay divert and appropriate instream flow watersfor another purpose within one mile upstream fromthe Wyoming state line. 20 This mentality and thelimitations on instream flow rights add even moreobstacles to mainstem, basin-wide instream flowprotection and restoration efforts and suggest thatflow projects may have a greater likelihood of successwhen confined within a state.The Law of the River has so many pieces that itspresent and potential influence on water conservationfor instream flow purposes is hard to determinein all instances and in all areas of the basin. But atthe most basic level, the allocation of water amongstates and setting of priorities for delivery appearsto challenge more than assist multi-state and basinwideinstream flow efforts regardless of whether thesource is water conservation.12 Colorado River Compact, Nov. 24, 1922, art. 3.13 43 U.S.C. § 617c(a).14 Upper Colorado River Basin Compact, Oct. 11, 1948, art. 3.Arizona is both an upper and lower basin state.15 Utilization of the Waters of the Colorado and Tijuana Riversand of the Rio Grande: Treaty between the United States ofAmerica and Mexico, Feb. 3, 1944, art. 10.16 Permanent and Definitive Solution to the InternationalProblem of the Salinity of the Colorado River, InternationalBoundary and Water Commission, United States and Mexico,Minute No. 242, Aug. 30, 1973.17 43 U.S.C. § 1521.18 Record of Decision: Colorado River Interim Guidelines forLower Basin Shortages and the Coordinated Operations forLake Powell and Lake Mead, Dec. 13, 2007, http://www.usbr.gov/lc/region/programs/strategies/RecordofDecision.pdf.19 Colo. Rev. Stat. §§ 37-92-102(3), 37-92-305(13)(c).20 Wyo. Stat. Ann. §§ 41-3-1002(d), 41-3-1006(h).37 Water Efficiency for Instream Flow: Making the Link in Practice

State LawSummary of Colorado Basin State Law Relevant to Water Conservation and Instream FlowCan the purpose and place of use of conserved water be changed?From agricultural rights?From other rights?California Yes YesNevada No [No express prohibition/permission]Colorado [No express prohibition/permission] [No express prohibition/permission]Utah No [No express prohibition/permission]Arizona [No express prohibition/permission] [No express prohibition/permission]New Mexico Yes [No express prohibition/permission]Wyoming No NoCan an existing water right be changedto an instream flow (ISF) right?Can conserved water be protected fromforfeiture/abandonment?California Yes Yes, it is equivalent to a beneficial useNevada Yes N/A—no forfeiture for surface water rightsColorado Yes, by or transferred to the state Yes, participate in conservation programUtah Yes, by or to state or fish organization Yes, nonuse exemption for up to 7 yearsArizona Yes Potentially, but forfeiture is not enforcedNew MexicoYes, at least by or to the InterstateStream CommissionWyoming Yes, by or transferred to the state NoYes, participate in conservation program;ag conservation equals beneficial useWho holds rights changedto instream flow?For how long?For what reasons?California Anyone Temporary or indefiniteNevada Anyone Temporary or indefiniteColoradoUtahColorado Water ConservationBoard (CWCB)— a localgovernment entity mayhold recreational in-channeldiversions (RICDs)Divisions of Wildlife Resourcesand Parks and Recreation and501(c)(3) fishing organizationsTemporary or indefiniteState agencies: indefinitelyor for 1 year or less; fishingorg: longer than 1 year butnot more than 10Wetlands habitat, fish andwildlife, or recreationAny recreational purpose,including wildlifePreserve or improve thenatural environment to areasonable degreeState agencies: many reasons;fish org: protection orrestorwation of habitat for 3species of troutArizonaOnly the state may holdinstream flow (ISF) rightsretaining the priority dateIndefinitely if transferred tothe stateRecreation, wildlife, or fishpurposeNew Mexico Anyone Undefined Fish and wildlife, recreationWyoming The state Indefinitely FisheriesWater Efficiency for Instream Flow: Making the Link in Practice38

CaliforniaCalifornia water law generally is favorable for usingwater conservation to benefit instream flows. Awater right holder can protect conserved water fromforfeiture and use that water for a new purpose and ina new place, including instream. A water right holdercan transfer the right to conserved water but is notrequired to in order to create an instream flow right.Unlike many states in the basin, anyone can hold aninstream flow right in California. The change of a rightto instream flow may be temporary or indefinite, andthere are expedited review procedures for shortertermchanges, making response to environmentalneeds easier.A conventional obstacle to water conservation in priorappropriation states, the doctrine of forfeiture allowsthe state to take back a water right or portion thereofif it is unused for a set number of years, which inCalifornia is five. 21 As in most basin states, Californiahas made a statutory exception for water unused dueto conservation; specifically, the reduced water usagefrom conservation measures is deemed equivalent tobeneficial use. 22 To secure this exception, the rightholder need only note the amount of water conservedon periodic reporting forms. Separately, anyoneentitled to water from the Colorado River undercontracts with the United States and undertakes awater conservation effort that results in reduced useof Colorado River water within the Imperial IrrigationDistrict is protected from forfeiture for the amountconserved. The forfeiture exceptions would allow theamount of water conserved simply to remain instreamwithout repercussions to the water right. Also, conservationdownstream to allow for lower, more naturalflows during the late summer, as seen in the RussianRiver example, can avoid permanent impact on waterrights through the exceptions.But California water law goes further in paving theway for using water conservation to benefit instreamflows. A water right holder may change the purposeof use, place of use, and point of diversion and eventransfer the conserved portion of a water right. 23 Awater right can be changed “for purposes of preservingor enhancing wetlands habitat, fish and wildliferesources, or recreation in, or on, the water.” 24 InCalifornia, anyone may petition for and hold suchinstream flow rights. 25 Thus, a water right holdercould change the purpose of conserved water toinstream flow and hold the right herself, transfer theconserved water to an environmental organizationwhich would then change the purpose of use toinstream flow, or any number of other permutations.Changing the purpose of use of a water right toinstream flow can be temporary or indefinite butrequires the permission of the State Water ResourcesControl Board in any event. 26 There are informationalhurdles in this process. The standard petition for achange requires all information that is reasonablyavailable to the petitioner or from the Departmentof Fish and Game regarding the potential effect ofthe change on fish and wildlife. 27 Specifically forchange petitions to instream flow, the petition muststate the time, location, and scope of the change. 28The state also has expedited reviews for temporaryurgency changes, which expire within 180 days andare subject at all times to revocation by the board, 29and temporary changes associated with a transfer fora period of one year or less. 30 These options have thepotential to allow faster response to environmentalneeds, conserving water and quickly putting it to aninstream purpose when it is most needed.California not only offers the opportunity to protectconserved water from forfeiture, but to change thepurpose of its use to benefit instream flow, establishinga temporary or indefinite dedication of water tothe stream that can be protected under state lawfrom downstream users. In addition, the State WaterResources Control Board has a liberal view of waterconservation, determined by reductions in withdrawals,generally resulting in more water being deemedconserved than under a consumptive use analysis.Water conservation efforts in the state have preventedthe need to appropriate new water in manyinstances, despite growing demand. But relatively fewwater conservation projects have made water availablefor another purpose, and in only roughly twentyinstances has the other purpose included instreamflows. Water right transfers for instream flow purposeshave tended to be from stored water or foregoneuse rather than water conservation. Thus, while thegroundwork appears to be laid, the intersection ofwater conservation and instream flows is largelyuncharted territory.21 Cal. Water Code § 1241.22 Id. § 1011(a).23 Id. § 1011(b).24 Id. § 1707(a)(1).25 Id.26 See, e.g., id. §§ 1701, 1707. Exception: A pre-1914 water right canbe changed to instream flow without the necessity of StateWater Board approval if there is a diversion of water involved.27 Id. § 1701.2(c).28 Id. § 1707(a)(2).29 Id. § 1440.30 Id. § 1728.39 Water Efficiency for Instream Flow: Making the Link in Practice

NevadaNevada water law has several key attributes favorableto using water conservation to benefit instreamflows, but a few substantial hurdles exist in practice.On the plus side, forfeiture is not an issue for surfacewater rights, the manner of use of a water rightcan be changed to instream flow, changes may betemporary or indefinite, anyone can hold an instreamflow right, and credits are given for non-agriculturalwater conservation. However, conserved agriculturalwater cannot presently be put to a new use ormarketed; no one has ever requested that creditsbe used to benefit instream flow; and given thesignificant demand for water in the state, there islittle practical opportunity for water conservation tobenefit instream flows in the Colorado River or itstributaries in Nevada.In 1999, Nevada explicitly rejected the forfeituredoctrine for surface water. 31 Therefore, nonuse of asurface water right for any reason, including waterconservation, is allowed without risk of forfeitureto the right. Nevada does still have an abandonmentstatute, but intent to abandon is very hard toprove. 32 At least theoretically, the amount of waterconserved simply could remain instream, or conservationdownstream could allow for more naturalflows, all without long-term legal implications.Water left instream, however, is not protected fromuse by others without changing the manner of useto instream flow or establishing private agreementswith those downstream. The use of water for anyrecreational purpose, which includes wildlife watering,is a beneficial use and such a water right canbe held by anyone. 33 In practice, those who dohold such rights vary tremendously, including waterpurveyors, tribes, government entities, and others.In addition, these water rights for “recreation” arenot distinguished much from other rights in Nevadawater law, so the rules have been applied equally tothem. A water right holder can change the manner ofuse of an existing water right to “recreation,” but theState Engineer must first approve it. 34 Such changescan be temporary or indefinite. The State Engineermay expeditiously approve a temporary change,which does not exceed one year, if the change is inthe public interest and does not conflict with existingwater rights of others. 35 The State Engineer has processedmany of these temporary changes for instreamflow. Thus, the manner of use of a water right may bechanged to benefit instream flow, the process can berelatively quick to respond to short-term demands,and the original water right holder can retain thoserights throughout the process.With so many of the pieces in place to secureinstream flow benefits from water conservation,Nevada’s interpretation of water conservation andthe practicalities of demand appear to be the limitingfactors. The Office of the State Engineer haslong held that changing the manner or place ofuse or transferring a portion of a water right that isno longer needed for the original purpose due toimproved water use efficiency is an expansion of theright and thus prohibited. For example, a farmer isentitled only to the amount of water needed to growthe crop, even with a change of crop or improvementin irrigation. The state is considering modificationsto this approach for purposes of promoting waterconservation, but the focus to this point has beenon allowing greater acreage to be irrigated, not flowor other benefits, when switching to a more efficientcrop. The State Engineer does allow non-agriculturalwater purveyors to receive a credit for water conservation,and the credits have, for example, been usedto develop additional lots. No one has ever requestedthat credits be used to benefit instream flow. Forpurposes of the Colorado River basin portion of thestate, increasing municipal demand has been drivinga variety of water conservation efforts and wouldcompete with environmental demands for the quantityand timing of delivery of conserved water.31 Nev. Rev. Stat. § 533.060(2).32 See id. § 533.060(4).33 Id. § 533.030; Nevada v. Morros, 766 P.2d 263, 267 (Nev. 1988).34 Nev. Rev. Stat. § 533.325.35 Id. § 533.345.Water Efficiency for Instream Flow: Making the Link in Practice40

ColoradoLike Nevada, Colorado has a number of laws favorableto using water conservation to benefit instreamflow but also significant hurdles to such an end, notthe least of which is the state’s view of conservation.Colorado has water conservation and instream flowprotection exemptions to its abandonment statute.Only the state may hold instream flow rights, butleases to the state for that purpose are allowed, andmany entities can hold recreational in-channel diversions,which are similar to instream flow rights. Also,expedited review procedures are available for certaintemporary transfers. There are, however, numerouslimitations on instream flow rights and recreationalin-channel diversions as well as relatively rigorousprocedural requirements for establishing such rights.Perhaps most importantly, Colorado arguably is moreprotective of existing water rights in the review ofchange applications than other Colorado River basinstates. While healthy for the long-term sustainabilityof the water management system, this policy doescreate more of a burden before conserved water canbe used for other purposes and in other places andultimately a narrower view of what constitutes waterconservation.Colorado does not have a forfeiture statute. Thestate’s abandonment statute, however, has a provisionthat serves effectively the same role. Failure touse all or a portion of a water right for a beneficialpurpose for ten years or more creates a rebuttablepresumption of abandonment of a water right for theamount of water unused. 36 As with forfeiture in otherstates, Colorado has exemptions to abandonment.Exemptions relevant to the topic at hand includenonuse of a water right that is a result of participationin a water conservation program either establishedby a municipality or municipal water supplier orapproved by a state agency, a water conservationdistrict, or a water conservancy district. 37 These provisionslargely have been unused to date, so exactlywhat would and would not qualify as a “water conservationprogram” is unclear. But for anything that doesqualify, the resulting amount of water could remaininstream, or conservation downstream could allowfor more natural flows, without risking loss of thatportion of the right, at least theoretically. In addition,a loan of water to the Colorado Water ConservationBoard (CWCB) for instream flow use exempts thewater right from abandonment. 38The CWCB is the only entity in the state that isallowed to hold instream flow rights, but it canacquire these rights in many ways, including by purchase,donation, lease, exchange, or other contractualagreement, from or with any person. 39 Leases may befor long or short periods, and there are even special,expedited review procedures for leases to the CWCBthat can be exercised for no more than 120 days and3 times in a 10-year period to fulfill instream flowrights held by the CWCB. 40 The leasing laws aredesigned to prevent permanent dry-up scenarios,and they allow water right holders other than theCWCB to work to protect instream flows without permanentdedication of a water right. Flexibility andexpediency in transfers are also supported by temporaryreview procedures for changes to water rightsand interruptible water supply agreements, wherethe borrower can exercise the option to use the loaner’swater right in accordance with the agreement. 41While not considered instream flow rights, and thusnot violating the law allowing only the CWCB to holdsuch rights, recreational in-channel diversions (RICDs)have a similar end but can be held by other interests.The purpose of RICDs is to benefit non-motorizedboating. 42 A county, municipality, water district,water and sanitation district, or water conservationor conservancy district may appropriate or change36 Colo. Rev. Stat. § 37-92-402(11).37 Id. § 37-92-103.38 Id.39 Id. § 37-92-102(3).40 Id. § 37-83-105(2)(a).41 Id. §§ 37-92-308, 37-92-309.42 Id. § 37-92-103(10.1).41 Water Efficiency for Instream Flow: Making the Link in Practice

the purpose and place of use of a right to RICD. 43RICDs potentially offer another opportunity to useconserved water for instream flow purposes, althoughnot directly for environmental benefit.Changing a water right’s decreed use to eitherinstream flow or a RICD involves procedural hurdlesand is limited in a number of ways. As noted above,instream flows may not deprive and RICDs may notimpair the development and consumptive beneficialuse of Colorado’s compact entitlements. 44 Conditionalwater rights cannot be changed to instream flow orRICD rights. 45 Acquired rights changed to instreamflow are restricted to the amount appropriate “topreserve or improve the natural environment to areasonable degree,” as determined by the CWCB. 46 Awater right donation to the CWCB is prohibited if itwould require the removal of infrastructure withoutconsent of the owner. 47 The CWCB must requestrecommendations from the Division of Wildlife andthe Division of Parks and Outdoor Recreation as wellas from the U.S. Department of Agriculture and U.S.Department of the Interior before starting an instreamflow acquisition. 48 RICDs are limited to specific pointsdefined by control structures, the “reach of streamthat is appropriate,” and April 1 to Labor Day of eachyear. 49 For any RICD, the CWCB must make writtenfindings as to whether the RICD would injure instreamflow rights or impair development of compact entitlementsand if it would promote maximum utilization ofwaters of the state. 50 And there is much more to thevarious procedures than can be noted here, resultingin complex water right change processes.In addition to these obstacles, the major challenge tousing water conservation to benefit instream flowsis from Colorado’s view of water conservation. 51Colorado seeks to ensure that before any changes towater rights are made those changes will not injurethe water rights of others. Such is the reason forextensive procedures for changes. It also results ina fear of being too liberal with regard to what onecan do with conserved water, under the premise that“conservation” may not actually be a reduction in theconsumptive use (effectively the amount of waterremoved from the river minus the amount returned).If a water right holder can otherwise use or sellconserved water, he or she may be able to expand thewater right and as a result leave less water for others.Prohibiting, or at least being very careful with, suchuses of conserved water gives greater assurance thatothers will not be harmed. That is why, to this point,Colorado rarely has allowed conserved water to beused elsewhere and otherwise. With developments inquantifying water usage and return flows, however,it may be easier in the future for the state to upholdits protections of other water rights while looseningits policies with regard to using conserved water forother purposes, including for instream flows. Indeed,the state presently is investigating means of accomplishingthis end.43 Id. § 37-92-103(10.3).44 Id. § 37-92-305(13)(c).45 Id. §§ 37-92-102(3)(c.5), 37-92-305(14).46 Id. §§ 37-92-102(3), 37-92-103 (4).47 Id. § 37-92-102(3).48 Id.49 Id. §§ 37-92-103 (10.3), 37-92-305 (13)(a).50 Id. § 37-92-102(6).51 See, e.g., Jesse A. Boyd, Hip Deep: A Survey of State InstreamFlow Law from the Rocky Mountains to the Pacific Ocean,43 Nat. Resources J. 1151, 1172 (2003).Water Efficiency for Instream Flow: Making the Link in Practice42

UtahUtah has a few of the key pieces of law for usingwater conservation to benefit instream flows but alsosignificant hurdles to connecting the two efforts andensuring that the water remains instream. Nonuseof water may be approved for up to seven years ata time if occurring because of water conservationpractices. 52 Fishing organizations as well as certainstate agencies may change existing water rightsto instream flow rights and hold those rights oncechanged, but only a state agency may permanentlychange a right for this purpose. 53 Furthermore, thestate agencies have more options of instream flowuses, fewer administrative hurdles to changing a rightto an instream flow use, and fewer restrictions oninstream flow rights than do fishing organizations.Like Nevada and Colorado, perhaps the largest obstacleto using water conservation to benefit instreamflows is restriction on changing the purpose of use ofconserved water.Utah has forfeiture exemptions like those found inother states, but none are particularly relevant to substantialwater conservation efforts. For small improvements,the unused portion of the right is exemptedif “substantially all” of the right is used within aseven-year period. 54 For larger water conservationefforts, an exemption does not naturally attach giventhe activity, but an alternative does exist in Utah law.The State Engineer can exempt for up to seven yearsat a time the nonuse of all or a portion of a waterright for, among other reasons, water conservationor efficiency practices. 55 To secure this protection, aright holder must submit a nonuse application beforea seven-year continuous period of nonuse is reached.While a more complex process, this protection of awater right still allows the possibility of more waterremaining instream or creating more natural flowsthrough downstream conservation, all without threatto the water right. But because a right holder hasno authority to call water that will not be used, thatwater is available to the next appropriator in prioritywhether upstream or down; it may reach and flowpast the current point of diversion, but there is noguarantee. In addition, water left unused in a stream,and not called for by other water right holders, isavailable for appropriation. 56Instream flows are only protected from use by othersby changing the purpose of use to instream flow.Utah allows instream flow rights to be held by twostate agencies as well as fishing organizations. Whilenot affording quite the flexibility for connectingwater conservation and instream flows that allowinganyone to hold instream flow rights does, it is animprovement over vesting such rights in a singlestate entity. The Division of Wildlife Resources andDivision of Parks and Recreation may hold instreamflow rights for the propagation of fish, public recreation,or preservation or enhancement of the streamenvironment. 57 A 501(c)(3) fishing organization mayhold a limited instream flow right for the protectionor restoration of habitat for the Bonneville, ColoradoRiver, or Yellowstone cutthroat trout. 58As in Colorado, there are many procedures relevantto changing the purpose of a water right to instreamflow. All change applications for instream flow rightsmust be submitted to the State Engineer and includestudies, reports, or other information required fordemonstrating the need for the instream flow andthe projected benefits to the public. 59 Fishing organizationsalso must have the director of the Divisionof Wildlife Resources approve the change, whichincludes a number of additional requirements. Theseprocedures mean fewer rivers and streams on whichinstream flow rights can be sought and more work toachieve what is possible.Utah also explicitly limits certain aspects of instreamflow rights. The two state agencies may only changea water right to instream flow permanently or for oneyear or less. 60 A fishing organization may only do sofor a fixed time longer than one year but not morethan 10 years. 61 Perhaps most important for purposesof using water conservation to support instreamflows, instream flow rights that can be held by fishingorganizations are geographically limited to thesection of stream between the water right’s originalpoint of diversion and the next point of diversionmade by another person. 62 Instream flows held by thestate agencies are not so geographically restricted,but the water right would need to be donated to thestate, 63 which likely reduces the incentive to pursuethat option.52 Utah Code Ann. § 73-1-4.53 Id. § 73-3-30.54 Id. § 73-1-4(2)(e).55 Id. § 73-1-4(4).56 See id. § 73-3-8.57 Id. § 73-3-30(2)(a).58 Id. § 73-3-30(3)(a).59 Id. § 73-3-30(4)(b)60 Id. § 73-3-30(2)(a).61 Id. § 73-3-30(3)(a).62 Id. § 73-3-30(3)(c).63 Id. § 73-3-30(2)(c).43 Water Efficiency for Instream Flow: Making the Link in Practice

The most significant limitation to using water conservationto benefit instream flows in Utah is how thestate interprets water rights. In Utah an agriculturalwater right is based solely on the amount of land.In the eyes of the state, if a farmer gets by with alot less water due to improved irrigation, a changein crop, or some other means, he or she has notlessened actual usage and thus has no “extra” waterto change to an instream flow use. While this hurdleappears to apply only to agricultural water rights,the vast majority of water from the Colorado Riverbasin used in Utah is put toward agricultural production.Water conservation from municipal, industrial,and other water users may be of some support, butotherwise the connection of water conservation toColorado River and tributary flows is left to stateapprovedforfeiture exemptions for water conservationand the hope that the water is not diverted andused by others.ArizonaMuch of the law important to facilitate the connectionbetween water conservation and instream flowsand securing those instream flow rights is lacking orminimal in Arizona. Certain reasons for failing to useall or a portion of a water right are exempted fromforfeiture, but none of the reasons expressly notedin law cover voluntary water conservation effortsgenerally. Only the state and its political subdivisionsmay change the purpose of use of a water right toinstream flow and maintain the original priority dateof the right. 64 This scenario is better than no onehaving that ability, but private participation is likelyto be limited by the fact that a water right mustbe permanently transferred to the state or politicalsubdivision thereof for this to happen. 65 In addition,there is little clarity in Arizona as to rights in conservedwater and what can be done with them.Forfeiture has not been enforced in Arizona in manyyears, if at all, which reduces the practical need forexemptions in order to encourage water conservationand promote leaving the conserved water instream.However, the forfeiture statute is still on the books. 66Even though it is not a factor now, it may be in thefuture. Nonuse is allowed for several reasons, butonly two of them are potentially relevant to waterconservation and none are for voluntary conservationefforts. 67 The final nonuse allowance is “[a]nyother reason that a court of competent jurisdictiondeems would warrant nonuse,” which at least has thepotential to include voluntary water conservation. 68Similarly, Arizona’s instream flow rights laws are notparticularly favorable for using water conservationto benefit instream flows. Any water right may bechanged to an instream flow purpose, which inArizona is a recreation, wildlife, or fish purpose. Butif it is not to lose the priority of the original waterright, it must be transferred indefinitely to the stateor one of its political subdivisions. 69 Retaining theoriginal priority date is critical, otherwise theoutcome is little different than appropriating a newwater right for instream flow, which anyone can doin Arizona, while losing the old, valuable water right.Thus, effectively, only the state and its politicalsubdivisions can hold water rights that have beenchanged to an instream flow purpose. This is similarto the situation in Colorado, but in Arizona there isno clear avenue for leasing water to the state for thispurpose, only permanent transfers. This reducesflexibility and likely participation in changing thepurpose of a water right to instream flow.Many of Arizona’s irrigated acres are served by waterunder contract from the Central Arizona Project orthrough other contracts for Colorado River water.These contracts have their own parameters and evenunique rules. Of note, county water authorities maysubcontract for Colorado River water for recreationalor fish and wildlife purposes when subcontractshave not been executed or when there is no currentdemand for the water by the subcontractors. 70 If thelack of municipal and industrial demand is caused byconservation, this explicit subcontracting opportunitymay be a means of connecting water constervationand instream flows. These subcontracts are limited tofive years, although they can be renewed. 71While nothing in Arizona law appears to substantiallyblock a change of conserved water to an instreamflow right, there is not much history of it in practice,which may itself present a big hurdle.64 Ariz. Rev. Stat. § 45-172(A).65 Jesse A. Boyd, Hip Deep: A Survey of State Instream FlowLaw from the Rocky Mountains to the Pacific Ocean, 43 Nat.Resources J. 1151, 1154 (2003).66 See Ariz. Rev. Stat. § 45-188.67 See id. § 45-189(E).68 Id. § 45-189(E)(13).69 Id. § 45-172(A).70 Id. § 45-2244(F).71 Id.Water Efficiency for Instream Flow: Making the Link in Practice44

New MexicoNew Mexico has a few of the key legal pieces forfacilitating the use of water conservation to benefitinstream flows, but the dearth of instream flow lawsand experience hinders such an effort. The state’sforfeiture exemptions do include water conservationprograms. 72 In addition, improved irrigation methodsand changes in agriculture practices do not diminishbeneficial use, which protects the conserved agriculturalwater from forfeiture. 73 The purpose and placeof use of conserved water can be changed, but NewMexico law only explicitly allows it for agriculture. 74Although state law allows the purpose of existingwater rights to be changed to instream flow, statutesand regulations are silent as to the details. As a result,there is potential but little current opportunity toprotect conserved water put to instream flow usefrom other users.New Mexico has a number of forfeiture exemptions,one of which is water conservation. This exemption,however, is not as general as it is in some of theother basin states. To qualify, the water right mustbe placed in a water conservation program approvedby the State Engineer. 75 A separate statute, applyingonly to agricultural water rights, provides greater flexibilityregarding water conservation and forfeiture.The law states that changes in irrigation and otheragriculture practices that result in water conservationare deemed not to diminish the beneficial use of thewater right. 76 In effect, agricultural water conservationis a beneficial use of water. Since water beingput to a beneficial use is inherently not in danger offorfeiture, this is another means of achieving a forfeitureexemption. Both of these laws have the potentialto allow conserved water to remain instream withoutrisk to the original water right. The latter law,however, appears to have fewer practical limitations,albeit applicable only to agriculture.Like California, New Mexico takes the next step andallows the purpose and place of use of conservedwater to be changed. Unlike California, the NewMexico law only applies to water conservationresulting from improved irrigation and changes inagricultural practices. 77 The water right holder stillmust apply to the State Engineer for the change,and the water conservation may not impair otherwater rights. 78 Depending on the State Engineer’sresponse to such applications, the necessary foundationfor using conserved water for instream flowpurposes and protecting that water from use byothers is present in New Mexico, at least for waterconservation from agriculture. It is important to note,however, that even if law and the State Engineermake this feasible, the practical opportunities in NewMexico may be limited by the low value of many ofthe crops, such as alfalfa (little financial incentive andopportunity for improved irrigation), and the reactionsof irrigation and conservancy districts.The most significant legal hurdles to this endeavorin New Mexico actually may come from the lawspertaining to instream flow. In short, those laws arelargely undeveloped and untested. 79 In 1998, thenAttorney General of New Mexico Tom Udall issuedan opinion stating that “there is nothing in the NewMexico Constitution, statutes, or case law that wouldpreclude the State Engineer from approving anapplication to change the purpose of use of an existingwater right to an instream purpose.” 80 But otherthan a 2005 regulation that explicitly includes fishand wildlife as well as recreation in the definition ofbeneficial use, 81 state law has not developed much interms of instream flow rights since the 1998 opinion.New Mexico law is silent as to who may hold instreamrights, for how long, and for what span of the waterbody.The Interstate Stream Commission is explicitlyauthorized to purchase, lease, or receive throughdonation water rights to support the strategic waterreserve, which has an instream flow component sinceit helps the state comply with interstate compactsand court decrees and benefits threatened andendangered species. 82 Aside from instream flowrights held by the commission for these purposes, itis unclear what instream flow rights could be in thestate. Depending on how this uncertainty is resolvedand the views of the State Engineer, New Mexicocould have the basic components in place to protectconserved agricultural water used for instream flowfrom potential downstream users. For non-agriculturalwater conservation, however, the options appearfar more limited.72 NM Stat. Ann. § 72-5-28(G).73 Id. § 72-5-18(B).74 Id. § 72-5-18(C).75 Id. § 72-5-28(G).76 Id. § 72-5-18(B).77 Id. § 72-5-18(C).78 Id.79 See, e.g., Jesse A. Boyd, Hip Deep: A Survey of State InstreamFlow Law from the Rocky Mountains to the Pacific Ocean, 43Nat. Resources J. 1151, 1202 (2003).80 AG Opinion 98-01.81 NM Admin. Code tit. 19, § 26.2.7(D).82 NM Stat. Ann. § 72-14-3.3.45 Water Efficiency for Instream Flow: Making the Link in Practice

WyomingWyoming allows the change in purpose and placeof use of a water right to instream flow, but this isthe only aspect of state law that supports connectingwater conservation with instream flow, and it islimited.In Wyoming only the state may hold an instream flowright. 83 It may acquire any existing water rights bytransfer or gift for this purpose. 84 Thus, a water rightholder can change the purpose and place of use of awater right to instream flow, but only by indefinitelytransferring it to the state. In addition, the Game andFish Commission must petition and receive approvalfrom the Board of Control to change the purposeof use of the right to instream flow. 85 Instreamflow rights must be applied to a specific streamsegment. 86 Also, within one mile of the Wyomingstate line, the main stem of the North Platte River,Big Horn Lake, Flaming Gorge Reservoir, or PalisadesReservoir, waters of an instream flow right can beappropriated by another user for another beneficialuse. 87 Instream flow rights cannot result in morewater leaving the state than is allocated by interstatecompact or Supreme Court decree. 88 Furthermore,the State Engineer is prohibited from enforcinginstream flow rights “unless present or future injuryto the fishery has been shown,” and a city or townmay condemn any portion of an instream flow rightfor municipal purposes. 89 These restrictions oninstream flow rights reduce the incentive for privateparty participation and would challenge efforts touse water conservation to benefit instream flows,even if the other pieces were in place to allow it.Wyoming has no salvage law, so water conservationdoes not create water that could be for a new use, anew place, or transfer for those with rights to flowingwater. In addition, Wyoming has standardized waterrights for agricultural uses, similar to those found inUtah, one cubic-foot per second of flow for 70 acres.If a farmer receives no credit for reductions in consumptiveuse through improved irrigation, a changein crop, or some other means, this policy presentsa significant hurdle to using conserved water foran instream flow purpose in Wyoming. However,there have been instances in Wyoming where waterconservation measures have benefitted those withrights to stored water. For example, the U.S. Bureauof Reclamation was able to use water conserved fromlining a canal, and the City of Casper has gatheredsaved stored water.Wyoming law does not have forfeiture exemptionsrelevant to water conservation. As a result, there isno legal protection of the portion of a water rightnot being used due to water conservation measures.This leaves a disincentive to benefitting instreamflows by just leaving conserved water instream, andit distinguishes Wyoming from all other states in thebasin. However, forfeiture is often hard to prove inWyoming, so the exemption may not be as necessaryin practice as it is in some of the other basin states.There may still be opportunity for water right holdersto leave the amount of water conserved instream;there just is not legal protection of the originalright or any assurance that the water will remaininstream. 9083 Wyo. Stat. Ann. § 41-3-1002(e).84 Id. § 41-3-1007(a).85 Id. § 41-3-104.86 Id. § 41-3-1007(b).87 Id. §§ 41-3-1002.88 Id. § 41-3-1006(h).89 Id. §§ 41-3-1008, 41-3-1013.90 See Jesse A. Boyd, Hip Deep: A Survey of State Instream FlowLaw from the Rocky Mountains to the Pacific Ocean, 43 Nat.Resources J. 1151, 1198 (2003).Water Efficiency for Instream Flow: Making the Link in Practice46

Challenges,Incentivesand PromisingOpportunities:Linking Water Efficiencyand Instream FlowsPractical possibilities for linking water efficiencyefforts and instream flows do existwithin the current context of the ColoradoRiver basin. Lessons from experience westwidecan be applied to legal and othercharacteristics of the basin. Given a stream stretchwith a clearly identified need for improved instreamflows and a realistic opportunity for improving waterefficiency in the surrounding area, willing partnersgenerally can build the bridges needed to overcomeother challenges.While many challenges may hinder the link betweenwater efficiency and improved instream flows inpractice, many of those interviewed believe theseobstacles can be channeled into incentives and strategiesto strengthen this link in parts of the ColoradoRiver basin. We describe in this chapter commoncharacteristics of a successful situation and frameseveral possible practical approaches for willing partnersto pursue promising opportunities within thebasin’s existing institutional context. Which approachwill be most useful depends on the specific localsituation and the partners.This chapter is based on our analysis of thecomments heard from over 40 in-basin interviews,advisory group members and the project team, aswell as input from a one-day in-basin working sessionof experts. 1 Lessons from the west-wide case studiesand 20 interviews from participants in those effortswere also considered.1 For more information on the working session, see Appendix 2.47 Water Efficiency for Instream Flow: Making the Link in Practice

Challenges to Be MetA wide range of challenges arise when peoplecontemplate using water from water efficiencyefforts to help improve instream flows in theColorado River basin. One person summed up theobstacles as:We don’t have the water or the right to it(a legal barrier);We don’t have the money (a funding obstacle);We don’t know what we want (an environmentalissue); andNobody cares (a willingness/awarenesschallenge).LegalThe traditional characteristics of prior appropriationcan appear to be a formidable barrier. But it’simportant to distinguish between the actual lawand the perception of what is and is not possibleunder it.Improvement in water use efficiency may adverselyaffect other water rights in some situations.The procedures for changing an existing waterright to an instream flow right vary in complexitydepending on the state; who may hold an instreamflow right, for what duration, and for what distancein the stream varies as well by state.In some states, conserved water cannot be used foranother purpose or in another place.Some states prohibit instream flow rights from limitingthe state’s ability to exercise compact rights,thus reducing the opportunity for multi-stateinstream flow protections.Other laws at different levels of governance addressa wide range of water issues, such as storage andgroundwater, which can directly or indirectlyinfluence the availability of water for instream flow.More on these challenges is found in Chapter 3.Institutional and MotivationalPolarized water interests exist in many areas, basedon previous events. Fear, uncertainty, and lack oftrust can dominate conversations about the use ofconserved water. Attitudes commonly expressed:leaving water instream is “waste;” temporarybecomes permanent; instream flow is not perceivedas a benefit until it’s forced.A wide array of federal and state programs affectindividual water allocation and managementdecisions, and the larger scale water rights andsupply systems of the Colorado River basin canoverwhelm what’s possible. Some areas may lackcapacity and expertise for implementing watertransfers and water conservation programs.The jurisdictional boundaries of those entitiesundertaking water efficiency efforts may not matchthe location of streamflow needs, making it difficultto match water from efficiency efforts with instreamflow needs.State water conservation planning requirementsmay not encourage water efficiency for streamflowpurposes. Government institutions may need anoutside push to embrace water efficiency programsfor this purpose.The environment is perceived by some as an impositionor outside requirement, and there are those whobelieve that diverting water for the instream environmentwill not provide local benefits.Some individual farmers are concerned that watertransfers or conservation will result in unmet districtwater needs; some municipalities are concerned thatallowing water for instream needs will result in unmetfuture human water demands.Uncertainty as to future demand and insecurity aboutfuture water availability can lead a municipal waterprovider to err on the high side. Similarly, precisewater use, and therefore savings, can be difficult tocome by on the agricultural side, out of fear thatwater not “used” could be forfeited.Water Efficiency for Instream Flow: Making the Link in Practice48

Challenges to Be MetRegarding agricultural water use, one person put it,“We’re stuck between two generalities: agricultureuses so much water; or, it’s all return flows. We needto get to this case by case—can it work here?” Similarsentiments about polarized attitudes were voicedabout municipal water use.Economics and FinancesFor some, the first and biggest question is who willfund these efforts. A disconnect in costs, benefits,and impacts inhibits action. Money is often neededto make improvements upfront, before any economicbenefit accrues.Many municipal water providers perceive andin fact experience a decline in revenues fromwater efficiency efforts. There can be a financialconsequence to overachieving in water efficiency,especially combined with other factors such as aweak local economy. Enormous investments areneeded in many cases to improve agricultural watermanagement inefficiencies; they may not be costeffective on their own.A current lack of money in state water protectionand other funds can curtail interest. And tensionbetween local control and state or federal moneycan limit effectiveness where funds are available.Physical and EnvironmentalThe timing and location of instream flow needs maynot match the water that can be made available.Similarly, following a physical drop of water mayshow that water efficiency does not result in streamflowin a particular situation.All individual efforts take place in a basin context;unintended consequences may result. Increasedefficiency may alter the timing or volume of returnflows, and thus affect flows in a downstream stretchor at a critical time for downstream fisheries. Waterquality impacts from more efficient water use canvary depending on the stream and local conditions.The groundwater and thus streamflow is site-specific:sometimes it helps ease pressure on a stream whileother times it takes away a source of streamflow. Andstreamflow improvement may unintentionally createnew habitat for endangered species.Riparian areas in some states may be more importantthan physical water flows. And in some parts of thelower basin, streams are ephemeral or effluent dominated.In both cases, environmental improvementmay depend on more than streamflow.Scientific information regarding where and how muchflow is needed must be available. Analysis detailedenough for decision making can be expensive.Water UseThe pressures of being continually water short canaffect both attitudes and possibilities. Plans for futurewater needs—drought, development, demands ofgrowth—often place the environment far down thelist of priorities. Some see efficiency efforts as contributingto urban sprawl by providing more watersupply for growth.Communities may have a goal to conserve but noplan for use of the conserved water. Different estimatesof water available from efficiency activities cancomplicate planning.The perception of water utility managers that municipalwater demand may harden, become less flexible,from more efficient water use makes some less willingto embrace new water efficiency strategies. Althoughthere are no studies documenting this “demandhardening” effect, this perception that it exists isnonetheless a barrier.Agricultural evapotranspiration (ET) losses andconsumptive (vs. nonconsumptive) water use canimpact how much water from efficiency measures canbe made available instream, and where. The effect ofefficiencies on the timing and volume of diversions aswell as return flows can also complicate a project.49 Water Efficiency for Instream Flow: Making the Link in Practice

Incentives and Strategies: How to Forge a Practical LinkWhile there are clearly many challenges,those interviewed commonly believe thatoften these apparently pervasive challengescan be addressed. Each situation must beevaluated separately, on a local or watershed basis.It’s important to identify the challenges in a particularsituation and consciously find ways to address them.What makes sense in water conservation andmanagement varies greatly. Successful efforts donot impose one approach, but allow autonomy todevelop an approach for a specific situation—howcan it work here? The model or arrangement can bedifferent in each case, defining incentives state bystate and even case by case.Different incentives motivate different types of willingpartners: communities, water suppliers, agriculturalwater districts, farmers and ranchers, nonprofitorganizations, and government partners. Identifyingincentives within the existing system that work foreach participant is important.LegalWhile it is more difficult in some basin states thanin others, it is possible to link water efficiency andstreamflows in each state. In several basin states,some creativity is required and legal protections ofconserved water put instream may not be available.Slight changes in a state’s water law can open moreopportunities. Often ways can be found, despiteapparent legal limitations.Forfeiture and abandonment exemptions for waterconservation have the potential to incentivize, or atleast remove a disincentive to, conserving water andleaving it instream.Some states allow a change in purpose and place ofuse of conserved water.Some states allow temporary changes to an instreamflow right or even allow individuals to hold waterrights that have been changed to an instream flowpurpose, which may encourage more water conservationfor an instream flow purpose as compared toall instream rights being held by the government inperpetuity.Court decisions and other precedent-setting interpretationsof laws relevant to the different ways ofusing conserved water to improve instream flows maynot yet exist. While this decreases certainty, it alsoprovides opportunity since there are fewer formalhurdles and a chance to set precedent favorable tothese efforts.In some instances, out-of-basin diversions may resultin more water from efficiency efforts and require lessprocess because return flows (and downstream users)are not an issue as a result of “foreign water” laws.This allows the reduction in diversion to be fully usedfor instream flow protection.Legal issues can be addressed in two ways: first, bydefining what is possible within the existing framework,and how much legal certainty exists by state;and second, by clarifying upfront for a given situationhow to reduce legal and regulatory uncertainty.Water Efficiency for Instream Flow: Making the Link in Practice50

Incentives and Strategies: How to Forge a Practical LinkInstitutional and MotivationalAttitude, trust and willingness are the most importantfactors in success, according to those interviewed.These can counteract polarization, motivation andattitude concerns.Partnerships for action are important—one waterright holder can’t do this alone. These efforts requirewilling partners and local support.Personal leadership is key to building bridges amongpartners, especially water rights holders. A catalyst orchampion to jump start the process can really help: anonprofit organization or a water user with environmentalvalues or need to make a change in existingwater uses. In the Pacific Northwest almost everystate has nonprofit groups serving as catalysts foraction, getting folks on the ground working personto person, river by river.Motivation often comes from outside events, termed“forced reasons” by one interviewee. EndangeredSpecies Act species-specific requirements, or anticipationof them, can serve as a powerful driver foraction. Other federal environmental laws and requirements,such as wastewater (NPDES), water quality,section 404 or TMDL requirements under the CleanWater Act, can serve the same role. Refocused stateand federal water conservation plan requirementscan motivate action, as can tribal water settlements.Motivations to take action can be social—“green”values in a community, water-based recreationinterests such as fishing and boating, or a simple loveof the land. It’s possible to build on motivations forenvironmental mitigation to improve streamflow.Incentives-based and win-win solutions will engagewater users. Each partner must “feel better off withthan without” the arrangement, though in somesituations better off can be simply avoiding a loss,even a future loss, or being assured of no futureharm. Interest may be even higher when there’s adirect benefit for property owners or water rightsholders, such as improved operations.Many of those interviewed note that piece-by-piecetransactions can make more progress than tacklingentrenched systems, and that making the link is lessabout the technological and physical base and moreabout the agreements.Three way trades—e.g. agriculture, streamflow, fishand game; or agriculture, urban, environment—canproduce benefits for all. Efforts can take advantage ofa long history of folks working together to keep upthe “call” on the Colorado River. And if the instreamenvironment can be treated as another beneficiary orcustomer within the district, improved streamflow inthat area may result.Institutionally, many state and federal programs withsimilar goals already exist, such as Wild and ScenicRivers programs. It’s important to identify targets ofopportunity that are not already addressed by these,and let successes continue in other programs.An effort focused within one state makes it easierto line up diverse institutions and jurisdictions andutilize existing programs.Economics and FinancesMoney can really motivate, though it is not the onlyfactor. Put another way, the glue holding together apartnership can be funding—adequate funding totake care of all interests. Interviews suggested thatlack of obvious funding sources does not by itselfpreclude action.Existing funding programs with other stated purposescan often be applied to the water efficiencystreamflowlink. Federal and in some cases statefunding may be available from habitat programs,mitigation and habitat conservation funds, and otherprograms that do not target streamflow. Fundingmay be cobbled together from several sources ona case-by-case basis. Federal funding for waterefficiency efforts is available from several programs atthe U.S. Departments of Agriculture and the Interior;environmental benefits may be part of the criteriafor selection. Federally sponsored programs, suchas the Salinity Control Program and the programimplementing the Central Utah Project, may allowand even actively welcome water efficiency effortsthat improve streamflows.While temporary funding has supported some efforts,in the long run permanent sources of funding maybe required. On the regional level, the BonnevillePower Administration’s Columbia River Basin Fishand Wildlife Program and Columbia Basin WaterTransactions Fund may serve as models to structure51 Water Efficiency for Instream Flow: Making the Link in Practice

Incentives and Strategies: How to Forge a Practical Linkcontinuing source of revenues in the Colorado Riverbasin. On the state level, the dedicated state fundingfor in- and out-of-stream water supply improvementsof Washington’s Office of the Columbia River couldprove to be an option.The economics of incentives must be worked outcase by case. Many creative economic solutions arepossible. Water available from efficiencies could bepurchased for instream use. Private investment ininstream flow needs may allow greater investmentcertainty. Allowing water customers to participate infunding can also build support as well as funding.Positive financial incentives may be less importantthan simply not losing money. Mechanisms toaddress financial concerns of municipalities, such asdecoupling water rates from volume used, similar tothe energy sector, may help to make a water utilityfinancially whole from any decreased revenue as aresult of the effort.Instream flow must compare favorably in economicterms, in the competition for the water available fromgreater efficiencies, with water demands for greatersupply and growth.Physical and EnvironmentalA water district or municipality can achieve environmentalbenefit with a change in timing and/orlocation of diversions, as well as by adding to streamstretches between or with no headgates. A strategicallyrelocated point of diversion, as part of a watermanagement effort, can boost streamflow in a particularstream stretch, without necessarily affectingwater rights or consumptive use.Several states already have ways to assess streamflowneeds and ranking systems to assist in identifyingstream stretches with clear benefit, such as Arizona’sstate water atlas, Colorado’s regional roundtables, theWyoming Game and Fish five year plan, and Oregon’sinstream flow targets.In California, the quantifiable objective concept isnot, but could be, seen as a three-way benefit includingthe environment. Habitat conservation plans,while complex, can offer useful information.Since simply avoiding harm can be an incentive,anticipating as much as possible unintended physicalconsequences and adjusting or planning for them canlead to success. Unaddressed return flow issues cancomplicate a water efficiency project, especially onewith intended streamflow benefits. Quantifying theconsumptive part of an agricultural water right andof actual return flow, as well as consumption by noncropwater users such as phreatophytes and evaporativelosses, can improve certainty of benefits.Accounting and quantification issues, such as howto track flows and benefits, can be more easilyaddressed upfront. One approach to a better connectionbetween accounting for in- and out-of-streamneeds, funding and legal structure is employed byWashington State’s Office of the Columbia River,which estimates in- and out-of-stream demand forwater, funds projects to incrementally meet thatdemand, and protects water saved instream throughthe state’s trust water rights program.Water UseSeveral recent reports identify opportunities formunicipal water conservation in the Colorado Riverbasin. 2 One user-friendly model for analyzing communitywater efficiency programs is readily availableto assist in selecting cost-effective programs. 3Agricultural water efficiency information for farmersand water districts is readily available as well. Andseveral states have policies and programs thatsupport local water efficiency efforts.Water efficiency for streamflow can be linked tocurrent structural proposals or other water managementefforts. Claiming environmental benefits frommore efficient water use, as one component of aproject, can improve a project’s economics.As growth in water demand and developmenthas slowed with a depressed economy, short termopportunities for instream flow improvement mayemerge. Water efficiency programs that delay actualwithdrawal of water may allow water to remain in astream stretch in the short term.2 See for example Municipal Deliveries of Colorado River BasinWater, Michael J. Cohen, Pacific Institute 2011.3 More information on AWE’s tracking tool is at http://www.allianceforwaterefficiency.org/Tracking-Tool.aspx.Water Efficiency for Instream Flow: Making the Link in Practice52

State or Federal Legal and Policy OptionsIdentifying active roles for state and federal governmentin linking water efficiency efforts and instreamflows is not the focus of this project. Most individualsinterviewed felt it important to work within existinginstitutional and legal structures. State or federalpolicy changes—some simple tweaks, some moresignificant—are beyond the scope of this study(below we briefly address ways to encourage localaction within existing structures).Still, many of those consulted for this report pointedto possible incentive, law and policy changes thatstates or federal agencies could undertake tofacilitate the link between water efficiency effortsand improved streamflows in the Colorado Riverbasin. The most commonly offered of these arereported here.Several powerful state actions were frequentlyproposed:Establish new state-based funding mechanismsfor projects that improve flows along with increasingwater supply certainty (see, e.g. WashingtonState’s Office of the Columbia River).Retool the rules for existing funding programsestablished for other purposes to allow or giveextra credit for efforts that link water efficiencyand streamflows.Adopt a percentage set-aside from any water righttransfer for instream flows as a transaction costof any transfer or any change to a water right. InArizona, a percentage of water stored throughartificial recharge must be left in the aquifer as a“cut to the aquifer” and the rest may be recoveredfor beneficial use. In Oregon, a percentage (usually25 percent) of any conserved water from waterefficiency measures is automatically allocated toinstream flows in exchange for a change in thewater right allowing use, sale or transfer of theconserved water.Utilize permit conditions for state water qualityand water management programs to encouragewater efficiency measures that meet programobjectives.Federal and multi-state adjustments to the largerwater management system to allow or encourageefficiency efforts, primarily the province of the U.S.Department of the Interior (Reclamation) and theBasin Compact signatories, were also suggested:Amend the rules by which federal funds for waterefficiency are spent, such as NRCS EQIP andUSBR WaterSMART grants, to give extra credit forinstream flow benefits.Allow policies and agreements flexible enoughto allow streams and rivers to serve as conveyancesystems between sources and points of use,particularly where enhanced flows may benefitthe river ecosystem, including across watersheds.Consider other ways to allow a portion of conservedwater to be made available for instreamflows basinwide.Encourage measures that modify and apply theconcepts of the Intentionally Created Surplus(ICS) program for the lower Colorado River basin 4to allow linking water efficiency programs withinstream flows in the upper basin and basinwide.Use the Colorado River Water Supply and DemandStudy (Basin Study) process as an opportunity todiscuss both institutional arrangements and environmentalneeds, as the study enters phase two.This might explore the changes needed to allowwater banking for environmental needs acrossstate lines and between lower and upper basinpartners. 5Adapt federal project purposes to meet environmentalneeds, such as needs of ephemeralstreams in the lower basin affected by theCentral Arizona Project.Employ mitigation obligations for hydropowerdam owner/operators or others to helprestore flows and habitat, as does BonnevillePower Administration’s Columbia Basin WaterTransactions Program.4 One overview of ICS and its effect on water suppliers can befound at http://www.snwa.com/ws/river_surplus_ics.html.5 Information on the Basin Study can be found at http://www.usbr.gov/lc/region/programs/crbstudy.html.53 Water Efficiency for Instream Flow: Making the Link in Practice

Characteristics of SuccessThe many challenges of linking water efficiencyefforts to improved instream flow can bemet by a range of incentives and strategies.Successful efforts have several commoncharacteristics that have emerged from ourwork. Many sections of the Colorado River havea wide array of water users and water interests,municipal, industrial, agricultural, environmental,recreational, spiritual, etc., and different incentivesare necessary for different sets of partners indifferent scenarios to capitalize on the promisingopportunitiesClearly Identified Streamflow NeedA clearly and scientifically defined instream flowneed for a specific stream stretch can be necessaryto target efficiency efforts, promote buy-in throughclear goals, and improve implementation, and insome cases meet state or federal legal requirementsfor an instream flow right. As scientific studies canbe time-consuming and complex, in some casesrestoring any flow to a specific stretch in need offlow improvement can be a worthwhile first step.Water Available Through EfficiencyMeasures in the Right Time and PlaceWater must be physically available, or at least potentiallyavailable, from water efficiency efforts. Thewater available must also match or assist in improvinginstream flows in terms of timing, location and/orvolume of flows. Building water efficiency measuresinto broader water management and/or habitat restorationefforts may hold the most promise for success.Even communities and agricultural districts that haveimplemented water efficiency measures may findroom for more savings, with targeted programs and aclear environmental objective.Relevant QuantityA small amount of water can fill a significant needin a small stream although it does very little in alarge river. Tributaries and headwaters, rather thanthe mainstem of the Colorado River, may generallyprovide more opportunities because these areasoften involve fewer water users and potentially lesslegal, procedural, and managerial complexity. Smallerscale projects can make a bigger difference in theflow of headwaters streams than in lower parts of theColorado River basin.A Champion, Willing Partners andWillingness to CooperateMost efforts require a champion to get the effortstarted as well as bring and hold groups together.Multiple willing partners help spread the costs.Communities and districts that can see the benefitsare more likely to engage in a sometimes lengthycollaborative process to shape the effort. Motivationscan be varied: besides financial considerations, waterusers may have legal, ecological, recreational, or otherconcerns that spark action. Greater certainty in watersupplies can play a role. While an outside driver, suchas a potential Endangered Species Act action, canhelp motivate a desire for action, it can also createfear (sometimes motivating, sometimes paralyzing)of outside regulation and its impacts. Geographically,areas of high growth in water demand may still findbenefit in water efficiency programs for streamflowimprovement.Approach Adapted to the SpecificSituation and the PartnersThe strategy and scale of the effort will differ in eachsituation, matching with the interests and abilitiesof the partners. A single approach, without tailoredvariations, will not work in every instance. Experiencefrom around the West shows there are several usefuloptions for approach (see following).Water Efficiency for Instream Flow: Making the Link in Practice54

Characteristics of SuccessFunding for Water Efficiency MeasuresWhile money is not always essential, when combinedwith bridge building it can create additional opportunitiesand even a more cooperative mentality. Acreative funding package may be necessary even forshort-term actions. Funding that increases certaintyof in- and out-of-stream benefits may be most likelyto result in durable success.Defined Legal Path within ExistingState LawDespite perceptions to the contrary, state waterlaw is not always the main obstacle to linking waterefficiency and instream flows. There are opportunitiesdespite the law and because of it. Efforts with thegreatest chance of success are designed around whatis and is not possible under the law of the specificstate, taking advantage of legal protections such asinstream flow rights, where available. Creative interpretationmay raise issues related to precedent thatmust be dealt with.Short Term and Pilot Efforts Can Leadthe WayGreater opportunities may arise through temporary,not permanent, approaches. A pilot project or shortterm effort can demonstrate that it is possible towork through the many challenges, how it can bedone, and what the results are (and are not). Waterusers can be more open to these efforts after havingseen them in practice.Two recent efforts suggest factors similar to thesethat may help identify opportunities, at least formunicipalities. A recent presentation on the Conserveto Enhance model cited three key factors: supportfrom local stakeholders, a community approved riveror enhancement project, and a way to account forparticipants’ water use and savings. 6 A recent surveyof Colorado West Slope communities identifiedseveral criteria that may have broader applicability:a community connection to the river; opportunityfor saved water to stay instream for some distance; aphysical relationships between the diversion and theriver; and water efficiency savings that yield streamflow enhancement, community support and utilitybenefit. 76 Inspiring Water Conservation for Environmental Enhancement,Sharon B. Megdal, Joanna Nadeau. AWWWA annual conference,Washington DC, June 2011.7 Rushing Rivers Program: Feasibility Analysis of ApplicationWithin the Colorado River Basin of Western Colorado,Western Resource Advocates, July 2011 (p 3-1).55 Water Efficiency for Instream Flow: Making the Link in Practice

Approaches to PartnershipSeveral promising approaches have emergedfor working at the local level. Which approachworks best for a given set of partners dependson the types of partners and the state andwatershed context.Two-Party Model of On-Farm Water RightOwner and NonprofitA conservation minded landowner may want waterto remain instream and be willing to work with anonprofit to do so. Trout Unlimited and the ClarkFork Coalition have had success with this approach inrural upstream rivers and streams in Montana. Legalprotections for conserved water are helpful here butnot always essential for success.Community with a Connection to the RiverThis approach builds on communities and residentswith a public connection to their stream, to channelthat concern into water efficiency efforts that yieldeither water or money for local environmentalimprovement. The community could be small orlarge. A connection could be literal (the river runsthrough town), expressed in environmental values,or economic (water dependent tourism, fishing). Anapproach that links water users directly with instreamflow protection could work in almost any communitywith a close connection to their river. 8Agricultural District with a Desire toModernize and One That Sees Value inInstream BenefitsFrom the large scale of Grand Valley, Colorado tomore localized efforts, agricultural districts can meettheir water management needs and see instreamimprovements, often utilizing federal funding forwater management improvements or habitatrestoration. In a June working session of expertsgathered on this topic, one group described whatmight work for a willing agricultural district: motivatedby the threat of unmanaged “buy and dry;”ability to collect assessments; enough remainingwater volume for farming; a point of diversion thatallows enhanced streamflows; and exit fees, money,or cooperation with buyers, to let go of water.Nonprofit as a Willing District PartnerThe instream environment can be treated as anotherbeneficiary, not a competitor, for water. An approachused by the Elephant Butte Irrigation District was notdeveloped for water efficiency but still can apply—the nonprofit is a willing partner, treated as anotherwater user by the agricultural water district. Thewater is used for instream flows, in effect growing fishnot crops. 9Three-Way TradesApplying the experience in three-way arrangementsfor water transfers—among agriculture, streamflow,and a government environmental authority (such asa state fish and game agency); or agriculture, urban,and environmental water uses—can provide moreoptions to link water efficiency efforts with streamflowimprovements, and produce benefits for all. Thewater needs of the sectors may be at different times,have varying degrees of flexibility, or other characteristicsthat can optimize efficiencies.Multiparty ApproachMultiple partners collaborating in a watershed maybe able to anticipate an upcoming environmentalimperative, whether physical or regulatory. Borrowingfrom the Deschutes River basin experience, a multipartynonprofit can act as a catalyst, look ahead forsignificant instream flow issues, identify when andwhere water will be needed, and work with agriculturaldistricts and municipalities to identify incentivesto improve water efficiency.8 Conserve to Enhance: Voluntary Municipal Conservation toSupport Environmental Restoration, Schwarz, Megdal, Jan.2008, Journal of the American Water Works Association 100(pp. 43-53). http://ag.arizona.edu/azwater/files/Journal_01-08_Schwarz-Megdal.pdf.See also Conserve to Enhance description in Case Studiessection.9 Agricultural/Urban/Environmental Water Sharing: InnovativeStrategies for the Colorado River Basin and the West,Colorado Water Institute, Colorado State University, 2010.http://www.cwi.colostate.edu/publications/sr/22.pdf.Water Efficiency for Instream Flow: Making the Link in Practice56

Setting the Stage for Local ActionNonprofits and government agencies canchoose to begin short-term efforts that setthe stage for local action and strengthen thelink between instream flow needs and waterefficiency efforts. Most of those interviewedfeel that working squarely within existing institutionalstructures is important to success and that existingstate water efficiency and streamflow programs arean important starting point.Pilot ProjectsPilot projects tailored to a specific state or watershedcan show it’s possible to work through the many challenges,ease concerns, emphasize cooperation, anddemonstrate both results and a positive and scaleableapproach. They also can emphasize patience, formultiparty projects often take time and can’t be donequickly. Short of this, efforts to develop comfort withthe concept and create awareness of the possible linkbetween water efficiency and streamflow can help.Educational EffortsEducation by state and by watershed, in partnershipwith the state engineer’s office, can clarify what lawcan and cannot do. State programs that promotewater efficiency can also make the connection for thepublic about the concept of improved streamflow asa benefit of efficiency. Targeting youth can build thisunderstanding in future generations. A tool box ofoptions for local action may take education and pilotprojects one step further.Identifying and Anticipating NeedsIdentifying and publicizing areas where state orfederal endangered or threatened species may be afactor in the future, as well as areas with upcominginstream flow needs and biological demand for waterthat may avoid future ESA and state regulation, mayhelp motivate willing partners. Highlighting keydrivers, “forced reasons,” or powerful communityconnections to the river can also help.Distinguishing among funding sources available forother purposes that can be used for this purpose willallow for creative funds packaging at the watershedlevel, without need for additional state funds.DialogueDialogue with water conservation practitioners canshow whether instream flows could be part of theirgoals, and whether they think they’re already achievingenvironmental benefits. Encouraging dialogue inany watershed with instream flow needs can avoidconflict and encourage cooperative solutions.57 Water Efficiency for Instream Flow: Making the Link in Practice

Promising Opportunities for Forging the Link: ConclusionPractical possibilities for linking waterefficiency efforts and instream flows,within the existing basin context, exist inthe Colorado River basin. Given a streamstretch with clearly identified environmentalbenefit from improved instream flows, and a realisticopportunity for improving water efficiency, willingpartnership is the first and most critical characteristicof success; willing partners generally can build thebridges needed to overcome other challenges.Creative funding, a defined legal path, and shorttermor pilot efforts are other common elementsof success.Opportunities can take the form of:An upstream farmer or rancher working with anonprofit working to improve streamflows;A community with a direct connection to astream stretch;An agricultural district seeking to modernize itswater management systems in a way that canalso reduce or relocate diversions from a river;Three-way arrangements for water use, such astrades among agriculture, streamflow, and agovernment environmental agency;A nonprofit with strong local relationships willingto take the lead; andMultiple partners collaborating in a watershedthat perceive an upcoming environmentalimperative, whether physical or regulatory.Different incentives tailored to motivate the varioustypes of willing partners are needed to take advantageof promising opportunities. Communities, watersuppliers, agricultural water districts, farmers andranchers, nonprofit organizations, and governmentpartners may all respond to different approaches.With a champion or catalyst, willing partners, and alocally tailored approach, more efficient water usecan be linked to improved instream flows in areas ofthe Colorado River basin.Photo CreditsPage 4Page 7Page 28Page 32Page 33Page 47Page 58Colorado River basin—John Jengo, Dowingtown, PA,American RiversColorado River basin map—U.S. Bureau of ReclamationGrand Valley, CO—Colorado River Recovery ProgramBadger Creek, ID—Trout UnlimitedRussian River, CA—Sonoma County Water AgencyColorado River basin—Eric Hinson, American RiversFossil Creek, AZ—American RiversWater Efficiency for Instream Flow: Making the Link in Practice58

Appendix 1Western Water Efficiency-Instream Flow Experience:Cases ConsideredA wide ranging search for practical experience in thewestern U.S. linking water efficiency and instreamflow protection yielded over 40 candidate casestudies, from individual on-farm water efficiencymeasures to major city-wide conservation programsand large-scale agricultural district efficiencies. Whilethere are many successful water efficiency programswest-wide, if a program had no link to instream flow,however indirect, we did not include it. Likewise, weopted for cases with demonstrable results, ratherthan models and policies that are as yet untested.We considered several other factors as well in ourselections:Does the project appear likely to achieve itsintended purpose?Does it seem transferable to the Colorado basinin terms of climate, geography, culture or otherimportant factors?Will the project provide a significant amount ofwater for instream use and/or provide an importantenvironmental benefit?Are the instream flow improvements protectedlegally or only in practice?Does the project have landowner and/or localsupport? Is implementation accepted by thebroader community? Has significant oppositionbeen overcome?Is the project perceived to be innovative?Does the list as a whole include a diverse rangeof project types?Cases Similar to Case Studies Includedin Chapter 2Sunnyside Irrigation District, Yakima River, WALower Yellowstone Irrigation District,Yellowstone River, MTLos Molinos Mutual Water Company, Mill Creek,CABarker Ranch, Yakima River, WAColumbia Basin Project Irrigation Districts (East,South, and Quincy), Columbia River, WA/ORLittle Bear Creek, Cache Valley, UTNine Mile Creek, Tributary to Little Clark Fork, MTBadger Creek, Little Lost River drainage, IDRock Creek, North Fork Blackfoot drainage, MTTucson, AZ, Conserve to Enhance programMono Lake, CAAmerican River, Sacramento Water ForumAgreement, CACases Described in Municipal EfficiencyResource SectionAlbuquerque, NMSanta Fe, NMSeattle, WA59 Water Efficiency for Instream Flow: Making the Link in Practice

Other Cases ConsideredWalla Walla River, WALehman Farm, Methow River, WA—only water leasingIpswich River Basin, MA—return flow issues,east coast exampleAgnew Irrigation District, Dungeness River, WA—project perceived as too different fromColorado basinMiddle Fork John Day River, OR—only a leaseNaches-Selah Irrigation District, Yakima RiverBasin, WA—not yet implementedFresno Irrigation District Canal ImprovementProject, CA—no instream flow benefits identifiedEastern Municipal Water District reuse/recharge,CA—not yet implemented, limited or no instreamflow benefitUte Mountain Ute Tribe Farm & Ranch Enterprises,SCADA Project—no identified instream flowbenefitSanta Fe “Living River” Fund, Santa Fe River, NM—no direct instream flow improvements, noconnection to water efficiencyFort Collins/Cache La Poudre, CO—not yetimplemented, possible instream flow benefithasn’t been defined yetHidalgo County Irrigation District #6 Canal Lining,TX—not implemented yet, smaller scale thansimilar Government Canal, Sunnyside projectsAshland, OR—not linked to instream flowSan Gregorio Watershed, Central Coast, CA—uses winter storage, not conservation, to improvesummer flowsBoise-United Water, ID—no identified instreamflow improvementsSanta Ana River, CA—conservation efforts do notbenefit flowsSouthern Nevada Water Authority, Virgin River,NV—main purpose to expand supply, not improveinstream flowsBackwash Recycling Project, Bella Vista WaterDistrict, CA—doesn’t meet definition of“efficiency”Water Efficiency for Instream Flow: Making the Link in Practice60

Appendix 2Interactive Workshop on Water Efficiency for InstreamFlow: Making the Link In PracticeTo provide input into this project, in June 2011 theproject team gathered over 30 experts in variousaspects of Colorado River basin water managementfor a one-day hands-on working session in Denver.The two goals of the workshop were to help theproject team assess the practical opportunities forvoluntary, incentive-based projects that link waterefficiency and improved streamflows in ColoradoRiver tributaries, and to identify strategies to addresssocial, political, economic, and legal hurdles inspecific areas of the basin.The workshop was not intended as a stakeholdermeeting; as a result, not every interest group inthe basin was included. Attendees came fromthroughout the river basin, and from state agencies,nonprofit organizations, municipal water utilities,water districts, and universities. A Deschutes RiverConservancy representative gave a lunchtimepresentation on how water efficiency contributed toimproved streamflows in the Deshutes River basinin Oregon. A separate workshop report was not prepared;workshop input is reflected in this report.The workshop was positive and thoughtful; very fewmajor disagreements surfaced. A positive skepticismprevailed, with the predominant attitude that thislinkage could work, the issues being where and how.Participants identified many challenges, especiallylegal and physical, yet often expressed them asincentives. Willingness to take action emerged as thenumber one characteristic of success, ahead even offunding. Several types of approaches for cooperativepartners were discussed.Interactive sessions and breakout discussion groupsfocused on the challenges in linking water efficiencyand improved streamflows in the Colorado Riverbasin, the types of incentives that might motivatedifferent types of willing partners, types and characteristicsof a situation that provide the best chancefor a successful project, practical opportunities inthe basin, and strategies to pursue these possibleopportunities.Agenda9:30 a.m. Group introductions, project summary,and legal context10:00 a.m. Breakout on challenges in the ColoradoRiver basin11:00 a.m. Groups report back; full group discussionon challenges and incentives12:00 p.m. Working lunch, presentation onDeschutes River Basin1:15 p.m. Breakout on possible practicalopportunities2:00 p.m. Groups report back briefly; full groupdiscussion on practical opportunities3:00 p.m. Full group discussion on possiblestrategies4:15 p.m. What did we hear today?4:30 p.m. ClosingSelected Breakout Group DiscussionQuestions1. What are the top 2–3 challenges you see in linkingwater efficiency and improved streamflows in theColorado River basin and its tributaries? What canbe done about these challenges, and who woulddo it, in the short term?2. What 2–3 incentives seem most important to youin employing water efficiency efforts to improvestreamflows in the Colorado River basin? Whattypes of incentives might motivate different typesof willing partners: communities, water suppliers,agricultural water districts, farmers and ranchers,nonprofit organizations, government partners?3. What 2–3 characteristics of a situation do you thinkwould make for the greatest likelihood of successin employing water efficiency efforts to improvestreamflows in the Colorado River basin? Whattypes of situations, geographic and other, mightprovide the most opportunity?4. What 2–3 practical possibilities do you see, withinthe existing basin context?5. What 2–3 strategies would you use to pursue thesepossible opportunities?6. How would you approach working within eachstate’s water rights framework?61 Water Efficiency for Instream Flow: Making the Link in Practice