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Last modified
7/14/2009 5:02:32 PM
Creation date
5/22/2009 5:12:46 PM
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UCREFRP
UCREFRP Catalog Number
8093
Author
Natural Resources Law Center.
Title
Instream Flow Protection In The West - Revised Edition - 1993.
USFW Year
1993.
USFW - Doc Type
\
Copyright Material
NO
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<br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br /> <br />1987 (which changed administratively set instream flow levels into vested public water <br />rights). <br /> <br />Reservations <br /> <br />State reservations of instream flows are similar in concept to appropriative <br />instream rights. Pursuant to statute, waters are reserved for instream flow maintenance <br />to prevent future users from diverting water below the set levels. The Montana and <br />Alaska legislatures followed this approach in creating instream water rights. <br /> <br />In Montana, the water reservations system was established in the 1973 Water Use <br />Act.1l Under the statute, political subdivisions of the state (as well as federal agencies) <br />may apply to the Montana Board of Natural Resources and Conservation to reserve <br />water for instream purposes as well as for future consumptive needs. After an <br />environmental impact statement is filed and a hearing on the application held, the Board <br />may order the water reserved if it is in the public interest. <br /> <br />Alaska's reservation program allows any ent~ty or person to apply for an instream <br />flow right. The Department of Natural Resources will issue the right if the applicant <br />demonstrates that the reservation will not affect prior appropriators, that a need exists <br />for the instream reservation, that unappropriated water is available, and that the <br />proposed reservation is in the public interest. The resulting instream flow right is <br />vulnerable, however, to future consumptive uses-the legislature provided that the state <br />shall review the reservation every ten years to determine if it is still needed and <br />consistent with the public interest.12 <br /> <br />Transferring Existing Water Entitlements <br /> <br />In many basins of the arid West, waters have been fully appropriated by <br />consumptive users. Under these circumstances, junior instream water rights are of little <br />value in protecting instream resources. An effective alternative for enhancing natural <br />flows in these areas is for states to acquire and dedicate existing water rights to the <br />stream. <br /> <br />Legislation in Utah, Wyoming, and Colorado has explicitly sanctioned this mode of <br />instream flow enhancement. In Utah, the State Division of Wildlife may file for a change <br />of use to instream flow purposes from an existing water right given to the division or <br />purchased by funds from the legislature.13 In Colorado, the State Water Conservation <br />Board may acquire water rights for instream needs through "grant, purchase, bequest, <br />devise, lease, exchange, or other contractual agreement."14 Similarly, Wyoming may <br />acquire water rights through voluntary transfer or gift for instream flow uses. is <br /> <br />1-7 <br />
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