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I I I I I I I I I I I I I I I I I I I domestic use through the year and storage during the period beginning November 1 and ending April 30 of each year.6 Some western states expanded this concept into a comprehensive program. for protecting wild and scenic rivers from further appropriation. For example, in 1972, California declared that it was state policy "that certain rivers which possess extraordinary scenic, recreational, fishery, or wildlife values shall be preserved in their free-flowing state."7 The legislature provided that no dams could be built on certain rivers and no diversions approved that would adversely affect the natural character of the river. As in Oregon, however, an exception was carved out to allow for new domestic water diversions if needed. Prohibiting new water withdrawals is an effective way to maintain existing instream flow levels with a minimum of administrative red tape. This strategy, however, can prove too restrictive for streams which, during certain seasons and wet years, carry sufficient water for new diversions without injuring the in-place values. Consequently, a number of states have developed more flexible alternatives for in-place water protection. Water Use Permit Denial and Conditions Every western state requires that an application be filed in order to obtain a new, protectable water right. These applications undergo various review procedures, and the states generally issue a permit for the new water right if it meets approval criteria. Also, the issuing agency generally may condition the permit with restrictions to prevent injury to other water users or to promote the public interest. A number of states have used this permit review process as an avenue for instream flow protection. The explicit right to protect instream flows during the water use permitting process first appeared in the West in 1949. In that year, the Washington state legislature authorized the water administrative agency to deny a permit application if the new water use might result in lowering the streamflow below the level "necessary to adequately support food fish and game fish populations."8 Similarly, the Utah legislature provided that a permit could be denied if it "will unreasonably affect public recreation or the natural stream environment.'19 Because outright denial of a new water diversion lacks the flexibility needed in some instances, a number of states allow the new permit to be issued subject to protective conditions for instream flows. Two types of instream flow conditions are frequently incorporated into water use permits. The first, applied extensively in California and to some extent in Alaska, provides for a specified level of the natural flow to be left in the stream by the new permittee. It is the duty of a new permittee to ensure that the minimum flow is allowed to bypass its diversion at all times. 1-5