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I , CRS-2 the typical requirement that an application for an appropriative water right include the plans for a "diversion", which require,nent still prevails in most western states, including those which allow for the preservation of instream flows. In addition, the courts in at least two states where the 3tatutory provi- sions regarding instrea~ flows are not explicit have come to opposite conclu- sions reg~rjing whether or not such uses are ?rotected. In ~ew Mexico. where the water appropriation system is established by constitutional provision (Art. XVI, ~~ 3 and 4), beneficial use includes fishing and recreation, State ex rel. State Game Comm'n v. Red River Valley Co., 51 N.M. 207. 182 P.2d 421 (1945), as well as conservation. United States v. Ballard. 184 F. Supp. 1 (D. N.M. 1960). In Utah, however, the use must be one that inures to the exclusive benefit of the appropriator suhject to :1is complete control. Lake Shore Duck Club v. Lake View'DucK Club 50 U 76, 166 P. 309 (1917). (Appropriation of water not allowed .for irrigation of unsurveyed, unenclosed and unoccupied public domain of the United States for the sole purpose of production of food for water fowl.) A. Beneficial Use Provisions Arizona Ariz. Rev. Stat. S 45-141 Permitted uses include "recreation, wildlif~~ including fish....." California Waters, S 1243 Beneficial uses include ......recre- ation and preservation and enhance- ment of fish and water resources...." Idaho Idaho Code S 42-1501 Beneficial uses include.. "maintenance of minimum stream flow..... Nevada Nev. Rev. Stat. S 533.030(2) "The use of water.......for any recre- ational purpose, is hereby declared to be a beneficial use." Oregon Or. Rev. Stat. S 536.300 "....recreation. wildlife ~nd fish life uses and pollution abatement, all of which are declared to be beneficial uses, . . . .