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stream to meet our water development demands and still retain enough semblance of a river's natural character to meet our ecosystem needs. Whether instream flows are legally protected through conventional or upside- down instream flow water rights, the underlying question of how much water is allocated for water development and for functional river ecosystems is the same. When this question cannot be answered definitely, it must be addressed adaptively. Allocations of timing, duration, and magnitude may be as important as allocations of amount. For any river, we leave the actual balance of these two demands to better minds, and turn our attention to the structure and legality of these two kinds of in stream flow water rights. STRUCTURE OF INSTREAM FLOW PROTECTION: CONVENTIONAL AND UPSIDE-DOWN INSTREAM FLOW WATER RIGHTS Conventional Instream Flow Water Rights The western states recognize water rights as property rights that cannot be drastically modified and taken away without compensation, and that may even be burdened with a public trust. Most fundamentally, this class of western property rights is based on the beneficial use of water, which was commonly accomplished by diverting transporting, storing, consuming, or otherwise applying water far from the source stream and riparian lands. The creation of such property by the diversion and beneficial use of water is known in the West as "appropriation," and is distinguished from eastern property rights in water that arise by riparian land ownership and are not dependent on water use. Under modern statutory schemes, except in Colorado, the state's permission must first be obtained to appropriate a water right, but the essence of the right is still usufructary. Most western states now recognize that water can be put to beneficial use in the stream without a diversion or impoundment and authorize the appropriation of in stream flow water rights (MacDonnell and Rice 1993). Most of the more extensive statutes (e.g., Colorado, Oregon, Idaho, Wyoming) limit this authority to a state agency and are cautious about the amount of instream flows that can be appropriated. This caution poses basic legal questions about the amount of instream flow that can be appropriated as a property right under state law: Is the amount of the water right the minimum that is needed to serve the beneficial instream use? Is the amount of the water right definite and specific? Is the amount of the water right as definite and legally defensible as it would be for another beneficial use, like irrigation? Because leaving water undeveloped in the stream was once viewed as a waste of water, the rationale behind these questions might be understood as the minimization of such waste and the reservation of more water for development. . The easiest answer to these questions is a low, constant instream flow quantity that is available year round, even in the drier years. Figure 1 illustrates such a conventional instream flow water right for a constant quantity. 3