reservations of land such as national parks and forests, could be used to protect both water resources and their associated riparian areas on all federal reservations.
Several national parks have been accorded reserved water rights that essentially preclude any out-of-stream development. For example, streams within Glacier and Yellowstone National Parks are dedicated to instream flow uses (Amman et al., 1995). In 1993, a Colorado water court awarded the United States all unappropriated flows on the east side of Rocky Mountain National Park; another water court decreed the same result for the west side of the park in 2000 (Silk et al., 2000). In a 1996 negotiated settlement for Zion National Park, Utah agreed to a federal reserved right to all stream flows except for a designated amount committed to future depletion by users upstream of the park (USA et al., 1996). Similarly, negotiated agreements in Montana for several national park units and for wild and scenic river areas established fixed levels of upstream consumptive use, with the remainder of the water being dedicated to instream flow.
To date, no reserved right specifically for protection of the riparian functions of a federal reservation has been legally recognized. The United States has asserted reserved right claims to water for environmental purposes with limited success—primarily because the U.S. Supreme Court has determined that the water claimed must be necessary to achieve the primary purpose(s) for which the reservation was expressly created. Thus, the Supreme Court upheld the need for water to protect the desert pupfish in a national monument specifically set aside for this purpose (Cappaert v. United States, 1976). But it denied an instream flow right for the Rio Mimbres in the Gila National Forest on the basis that the primary purpose for which national forests were established was not environmental protection (United States v. New Mexico, 1978). This latter decision is odd given that the two primary purposes in the 1897 Organic Act are “securing favorable conditions of water flows and furnishing a continuous supply of timber.” In the future, it may be possible for the USFS to convince a court that “favorable conditions of water flows,” and hence downstream yields of water, depend on streams and riparian areas that are in good functioning condition. This could enable the successful assertion of federal reserved rights for protection of riparian areas.
Although a diverse array of programs may be used to promote, protect, or implement riparian management, two relatively new programs may have substantial and unique impacts nationwide because of their scope and scale. The first is the Conservation Reserve Enhancement Program (CREP), which is a voluntary, incentive-based program authorized by the 1996 Farm Bill. CREP is essentially a variation on the Conservation Reserve Program (CRP), but with a state partner-