7915

• UCREFRP Catalog Number: 7915
• Author: Hollomon, D.
• Title: The Preservation Of Instream Flows In The Western States.
• USFW Year: 1985.
• USFW - Doc Type: 85-806A,
• Copyright Material: NO

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THE PRESERVATION OF INSTREAM FLOWS IN THE WESTERN STATES

To accommodate the 19th and early 20th century period of expansion into the

dry lands of the western states, those states adopted appropriative systems of

water rights. Under this system, the appropriator of a water right typically

needs only describe the intended purpose and the procedure for diversion, and,

so long as the use is deemed "beneficial" under the state's laws, a priority

right to a certain quantity of water is granted in accordance with priorities

established by the time of the application. Previously, state laws typically

stressed consumptive uses, but more recently the need for water conservation has

become more pressing, and various states have provided for "instream flows" as a

statutorily recognized use. That is, in those states it is no longer required

that the water be diverted and "captured" for private consumption to qualify as

a use which is protected by the state. This report provides a brief summary of

the statutory provisions adopted by western states to preserve instream flows.

The statutory provisions can be broken down into two categories: first, the

inclusion of instreamflows as a statutorily recognized beneficial use, and second,

the requirement of the preservation of minimum instream flows by the appropriate

government entity. It should be noted that there are at least two significant

legal questions regarding the provisions that have yet to be fully resolved in

the courts. First, it is not clear whether a private citizen may take advantage

of the inclusion of instream flows as a beneficial use. Colorado expressly limits

such appropriation to the state, whereas most of the other states have no such

express limitation. Second, it is not clear what legal significance attaches to