Watershed as a Public Natural Resource on the Federal Lands
By George Cameron Coggins
INTRODUCTION
Since the 19th century, Congress has decreed that protection of the watershed resource is an important if not overriding priority in federal land management. Both the Forest Service and the Bureau of Land Management (BLM) are statutorily commanded to consider watershed and assure its sustained yield in all multiple use management decisions. Other federal laws reinforce the notion that watershed is an important national resource. Despite this statutory foundation, watershed has been the forgotten multiple use in legal contemplation. No generally accepted definition of watershed exists beyond the merely geographical notion that a watershed is an area drained by a river or stream. The word, in fact, connotes two basic concepts: resource protection and increased water yield. These two aims often conflict.
Watershed has received less theoretical and practical attention from the land management agencies than have the more conventional renewable resources such as timber and range. Information about the watershed resource apparently has never been thoroughly considered for purposes of legal analysis. The watershed resource has inspired neither notable legal controversy nor definite legal rules. No plaintiff in any environmental lawsuit has successfully argued that an agency's proposal or practice has unduly degraded the watershed resource. Cases in which such arguments might have been appropriate were won, if at all, on other legal grounds. Furthermore, no law review article, to the author's knowledge, focuses primarily on watershed as a natural resource.
Nevertheless, legal interest in watershed has increased, and more legal writers are analyzing facets of watershed degradation. Additionally, many recent lawsuits and other disputes have revolved around watershed values, and even more are likely to arise in the future. Watershed as a resource will most likely, therefore, assume a more prominent role in federal resource allocation.
This Article and the chapter from which it is derived are experimental. In compiling and organizing information from legal and non-legal sources, the Article tries to flesh out the legal skeleton of assumed or ignored meanings and applications of the watershed concept. Its discussion is limited, for the most part, to watershed as a resource that should be managed for sustained yield in the multiple use context. Thus, broader applications of the watershed idea, such as river basin planning or total ecosystem management, are beyond the scope of this treatment. State law governing water allocation is also a separate subject and is mentioned only in the context of departures from traditional rules that enhance watershed quality.
The following introductory section traces the legal history of the public watershed resource, attempts to define what watershed is and is not, and summarizes the main threats to watershed values. Later sections describe the laws relating to watershed as a resource and outline the “external” law relevant to watershed protection. The final section summarizes the ways in which watershed management can affect other federal land uses.
Since the 19th century, Congress has decreed that protection of the watershed resource is an important if not overriding priority in federal land management. Both the Forest Service and the Bureau of Land Management (BLM) are statutorily commanded to consider watershed and assure its sustained yield in all multiple use management decisions. Other federal laws reinforce the notion that watershed is an important national resource. Despite this statutory foundation, watershed has been the forgotten multiple use in legal contemplation. No generally accepted definition of watershed exists beyond the merely geographical notion that a watershed is an area drained by a river or stream. The word, in fact, connotes two basic concepts: resource protection and increased water yield. These two aims often conflict.
Watershed has received less theoretical and practical attention from the land management agencies than have the more conventional renewable resources such as timber and range. Information about the watershed resource apparently has never been thoroughly considered for purposes of legal analysis. The watershed resource has inspired neither notable legal controversy nor definite legal rules. No plaintiff in any environmental lawsuit has successfully argued that an agency's proposal or practice has unduly degraded the watershed resource. Cases in which such arguments might have been appropriate were won, if at all, on other legal grounds. Furthermore, no law review article, to the author's knowledge, focuses primarily on watershed as a natural resource.
Nevertheless, legal interest in watershed has increased, and more legal writers are analyzing facets of watershed degradation. Additionally, many recent lawsuits and other disputes have revolved around watershed values, and even more are likely to arise in the future. Watershed as a resource will most likely, therefore, assume a more prominent role in federal resource allocation.
This Article and the chapter from which it is derived are experimental. In compiling and organizing information from legal and non-legal sources, the Article tries to flesh out the legal skeleton of assumed or ignored meanings and applications of the watershed concept. Its discussion is limited, for the most part, to watershed as a resource that should be managed for sustained yield in the multiple use context. Thus, broader applications of the watershed idea, such as river basin planning or total ecosystem management, are beyond the scope of this treatment. State law governing water allocation is also a separate subject and is mentioned only in the context of departures from traditional rules that enhance watershed quality.
The following introductory section traces the legal history of the public watershed resource, attempts to define what watershed is and is not, and summarizes the main threats to watershed values. Later sections describe the laws relating to watershed as a resource and outline the “external” law relevant to watershed protection. The final section summarizes the ways in which watershed management can affect other federal land uses.
