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The second type of penl1it condition creates a similar result, incorporating the requirement that when the natural stream level falls below a specified flow, the permittee must discontinue diverting water. This strategy is used effectively on critical salmon streams in central Washington where, following a basinwide study of instream flow needs, the water agency conditions all new permits to require curtailment of diversions during low flow periods. Recognition of Instream Water Rights Denying or conditioning permits on a case by case basis can result in inconsistencies and prove cumbersome to administer. Consequently, a number of state legislatures have authorized the creation of instream flow rights on the same legal footing as municipal diversions, irrigation withdrawals, and other consumptive water rights. These instream rights may be established under state law through appropriation or reservation or through the transfer of senior water rights. Appropriation The concept of appropriations to protect natural waters dates back to 1925 when the Idaho legislature designated certain lakes for the preservation of their scenic beauty and recreational values.10 The associated water right was issued to the governor to be held in trust for the people of Idaho. It was not until the 1970s, however, that the concept blossomed into comprehensive administrative programs to systematically establish instream flow rights on impqrtant rivers and streams. In 1973, the Colorado legislature empowered the Colorado Water Conservation Board (CWCB) to establish water rights on behalf of the public to maintain instream flows and natural lake levels. Since that time, the CWCB has established new water rights on thousands of miles of Colorado's streams and rivers and on scores of natural lakes. A typical instream flow right designates a specified level of flow (e.g., 15 cubic feet per second from April through October; eight cfs during the winter) over a stream segment stretching up to several miles. The right does not ensure that such flow will actually be maintained, because senior water rights may already exist that deplete the stream below the specified level. But the instream flow rights do give the CWCB the authority to curtail junior diversions and to limit proposed transfers of senior rights that could injure the instream rights. The appropriation of instream flow rights has proven an effective way to systematically establish protection of instream resources, and a number of state legislatures have recently set up programs similar to Colorado's program. These include Wyo~ing in 1986 (after a citizens' initiative drive got a similar law proposed on the ballot), Hawaii in 1986 (as part of a comprehensive state water code), and Oregon in 1-6 I I I I I I I I I I I I I I I I I I I