Status of Instream Flow Legislation and Practices in North America

This paper presents the results of two nonstatistical surveys (completed in 1981 and 1986) that solicited information from state and federal agencies concerning instream flow issues and practices in North America. Forty-six states and 12 Canadian provinces responded to the survey. Fifteen of the 46 states reported legislative recognition of instream flows for fisheries protection. In Canada, individual provinces generally lacked instream flow legislation, although federal legislation existed that could be used. The most commonly applied method (in use in 38 states or provinces) for assessing instream flow requirements, as reported in the survey, was the Fish and Wildlife Service Instream Flow Incremental Methodology (IFIM). Major research needs cited by survey respondents included (1) more species habitat information and preference curves, (2) techniques for determining instream flows for atypical conditions, and (3) testing of fish habitat: flow: production relationships. ncreases in the number of proI posed water development projects in North America have forced fisheries biologists to predict the level of effects that result from such projects. When water is developed for agricultural, municipal, industrial, and power production uses, the magnitude, timing and duration of natural flows may be altered, thereby affecting the availability and quality of fisheries habitat (Peters 1982). Therefore, the biologist needs to determine the amount of water that must be left in the stream to maintain aquatic resources at some desired level. Such flows are often termed "instream flows." To this end, a number of formal methodologies for prescribing instream flow (IF) needs have been developed (Stalnaker and Arnette 1976; Wesche and Rechard 1980; EA Engineering, Science, and Technology, Inc. 1986). Today, although various state and federal resource agencies agree that instream flows for fisheries should be a recognized use of water, they differ as to how instream flows are legally perceived and/or derived. In addition, because of geographic differences, instream flow problems will vary by region with fish species (Peters 1982). In 1981, the Water Development and Streamflow Committee (WDASC) of the Western Division of the American Fisheries Society (WDAFS) surveyed the western United States and part of Canada and Mexico (WDAFS 1981) regarding IF procedures and programs and to assess their effectiveness for providing flows to sustain fishery resources. The WDASC repeated and expanded the survey in 1986 to include all of North America. In this paper, we summarize the results of both surveys, emphasizing the expanded 1986 survey. McKinney and Taylor (1988) provides a more comprehensive summary of some western state programs and we recommend it as a supplement to this paper. Survey Format We undertook the 1986 survey by mail using a questionnaire patterned after the 1981 survey, the results of which were summarized but never formally published (WDAFS 1981). The questionnaire solicited information on: status, title, and effectiveness of cur0 name of agency(ies) administering 0 methods used for assessing IF needs; basis for selecting a given method; 0 ways in which field results are used in formulating an IF recommendation; 0 major IF related research needs; and rent instream flow legislation; instream flow activities; Dudley W. Reiser is a senior fisheries scientist with EA Engineering, Science, and Technology, Znc., 41 Lafayette Circle, Lafayette, CA 94549. Thomas A. Wesche is a senior research associate with the Wyoming Water Research Center, University of Wyoming. Christopher Estes is a sfatewide instream flow coordinator for the Alaska Department of Fish and Gnme. 0 other concerns related to IF'S. We sent 202 questionnaires to 186 agencies in the 50 states and to 16 agencies in 12 Canadian provinces that administer fish and wildlife resources, and in some instances water resources. For many states, we also sent questionnaires to the federal agency administering federal regulations in that area, e.g., Fish and Wildlife Service (FWS). Survey Results We received responses to 100 of the 202 mailed questionnaires, a return rate of 49.5%. The non-responding states, provinces, and territories were Connecticut, Iowa, Maryland, District of Columbia, Prince Edward Island, Quebec, Saskatchewan, and the Yukon Territory. Summary responses for each state or province are presented in Table 1. Instreurn Flow Legislation Fifteen of 46 states (33%) reported legislative recognition of instream flows for fish and aquatic resource protection (Fig. 1). Several noted that other related legisla tion addressed instream flows; most commonly, statutes concerning water quality and quantity for industrial, agricultural, and domestic uses. Not surprisingly, 9 of the 15 states (60%) that have IF legislation are in the western U.S. where the concept for and impetus behind the preservation of instream flows for fish and wildlife had its origins (Fig. 1). Water law in ' 22 Fisheries, Vol. 14, No. 2 'I'able 1. Summary of responses to the 1986 instream flow questioanaire Status of It. Title of IF Effectiveness of Agencies StateIprovince legislation legislation legislation administering IF IF field methods used Malor IF research needs