8093

• 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

uses. Utah and Wyoming, in their 1986 instream flow legislation, and Colorado, in its
1987 amendments to its enabling statute, all specified a single state agency to hold
instream water rights established under state law.

This does not mean, however, that private interests are unable to participate in in-
place water protection. For example, The Nature Conservancy has either established or
purchased and transferred water rights to in-place uses in several states.2S Also, a
number of other strategies have been asserted by instream flow advocates to enhance
free-flowing waters in the West. As explained below, these include private appropriation
of instream water rights, coordination of water uses and reservoir releases, and assertion
of the Public Trust Doctrine.

Private Instream Appropriation

Despite the fact that several western legislatures have explicitly prohibited the
creation of in-place water rights held by the private sector, individu~ls and organizations
in some other western states are asserting this appropriation strategy. Most notably,
during the early 1980s an environmental advocacy group applied for two instream flow
rights on an ecologically important river in southern Arizona. The state Department of
Water Resources approved the applications after determining that fish and wildlife
protection is a beneficial water use under Arizona law, a physical diversion is not
required for appropriating a new water right, and the applicant had followed the
necessary procedures for establishing a valid right. Approval of these two private
applications encouraged numerous new instream flow filings in Arizona, submitted by a
variety of applicants.

Only in Alaska has a western state legislature explicitly empowered the private
sector to participate in an instream flow program as a rights holder. The Alaska Water
Use Act allows any person to reserve a quantity of water for stream or lake level
maintenance for a number of purposes. These include protection of fish and wildlife
habitat, migration and propagation; recreation and park purposes; navigation and
transportation; and sanitary and water quality purposes.26 To date, however, no private
instream flow rights have been reserved in Alaska. Although a small number of
applications have been received by the state, they were found to be procedurally
deficient.

Coordinating Water Use and Releases

Because most states prevent the private sector from appropriating instream rights,
advocates of free-flowing waters have turned to alternatives to promote their goals. One
option is to purchase and dedicate water rights to the state for instream flow protection,
but this is often costly. In the Colorado Rockies above Denver, a ten cfs senior irrigation

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