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ARGUMENTS FOR THE LEGAL RECOGNITION OF UPSIDE-DOWN INSTREAM FLOW WATER RIGHTS In this section, we offer our arguments in favor of the legalrecognition of upside- down instream flow water rights under federal and state law, and suggest that upside- down instream flow water rights can be an important negotiated solution. As Federally Reserved Water Rights The primary purposes of several federal land designations have been judicially determined to imply upside-down instream flow water rights for all remaining natural flows. Upside-down, federally reserved, instream flow water rights are not illegal for lack of specificity. As the Idaho Supreme Court reasoned: "a claim to the entire flow, if it is necessary, cannot be faulted for uncertainty," and" is sufficient quantification for the reserved rights claimed" if stating the claim in cubic feet per second (cfs) or acre-feet, as required by Idaho water law, would change the scope and nature of the reserved rights (Avondale Irrigation District v. North Idaho Properties, 577 P.2d 9, 19 (Idaho 1978)). The court also carefully examined the purposes for which instream flows could be reserved for a national forest and remanded the case to determine if the USFS could prove whether all of the natural flows were needed to fulfill these purposes. Upside-down instream flow water rights have been formulated as a negotiated solution to the difficult conflicts posed by the exceedingly broad scope of federally reserved water right claims. One settlement approach has been to subordinate the priority of an upside-down, federally reserved, instream flow water right to all existing rights, plus a cushion for water development. In one stroke, such a settlement skirts countless and complex questions about the quantification of all the existing water rights and of the necessary natural flow patterns and reduces the issue to quantifying what could be a more predictable pattern of water development. Lastly, to guard against a mistake or unforeseen shift in circumstances, the accommodation for water development can be structured to be adjusted and adaptively managed. The conflicts posed by federal regulatory schemes to protect instream flows should be amenable to the same kind of settlement. As Appropriations under State Law There is little question that leaving water undeveloped in the stream is not a waste and is instead a legally beneficial use of water that can be appropriated and recognized as a property right in the western states. Given the extensive and extremely valuable societal benefits of protecting instream flows, the underlying rationale running through many western statutes that instream flow water rights should be limited to minimal amounts because instream flows were once viewed as a waste of water, seems hollow and outdated. Another set of rationales may now be appropriate. All the remaining natural flows may be the minimum needed to sustain a river ecosystem. It may be more beneficial and less speculative to protect instream flows today than to reserve them for 17