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, "Nature is not only more complex than we think, but more complex than we can think." Egler (1973). INTRODUCTION Fresh waters have fueled human development and civilization for over 5,000 years (Collier et al. 1996). They give us clean drinking water, fish to eat, recreation, and aesthetic pleasure. We harness them to generate renewable energy, remove human waste, irrigate agricultural fields, and carry ships to port. Everywhere on Earth, from the smallest village to the largest metropolis, our livelihoods are intimately intertwined with fresh, and often flowing, water (Allen and Flecker 1993). As biological assets, freshwater systems are disproportionately rich, and the United States is a global center of this biodiversity (Master et al. 1998). Properly functioning freshwater ecosystems also perform important services: water purification; aquifer recharge; opportunities for continued species evolution; the transportation of minerals and nutrients from higher to lower land and eventually to the sea, thereby enhancing soil fertility as well as estuarine and floodplain health; and natural flood control-- intact floodplains absorb flooding waters, thereby protecting downstream areas from greater inundation. Yet, water development threatens to transform this resource, rendering it incapable of supporting native plants and animals and calling into question its ability to perform these important services. Water development, as referenced in this paper, includes the large-scale diversion of water from the stream for agricultural, industrial,. and municipal use. We examine how two kinds of instream flow water rights, conventional and "upside-down," have been applied in allocating flowing freshwater between human demands for water development and for maintaining biological diversity and ecosystem function. Conventional instream flow water rights protect up to a specified level of flow to be left in a stream and allocate the remaining unappropriated flows for water development. I Upside-down instream flow water rights specify a level of water development and protect the remaining flows in the stream. We begin by considering how much of a river's flow should be protected and by reviewing the structure of conventional and upside-down instream flow water rights. We turn next to the legality of upside-down instream flow water rights, and consider a number of examples under federal and state law, along with one case in which the same kind of flow protection was achieved under a federal regulatory scheme. We then summarize our arguments in favor of legal recognition for up-side down instream flow water rights and conclude, subject to several qualifications, that they should be legally tenable, just as quantifiable as conventional instream flow water rights, and considered when seeking to protect complex and not easily predictable natural flow patterns. The term upside-down instream flow water right was coined by The Nature Conservancy in Colorado and is conceptually similar to such approaches as "departure I Where streams are fully appropriated, an instream flow water right can only be established by converting an existing water right to instream use.