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Under prior appropriati:m rules legal protection extended only to water uses involving physical capture of water. Beneficial use thus effectively becomes equated with out-of-stream consumptive use.34 Under this approach water is regarded as just another extractive resource, effectively unrelated to the river or wetland or aquifer of which it is a part. State instream flow programs are often held out as evidence of the adaptability of water law to new needs. Indeed these laws and programs do represent adaptation of a sort. But, taken on the whole, it is a grudging, tentative adaptation-<Jne filled with limitations and restrictions beyond those associated with other publicly-sanctioned water uses. The result is, as Christopher Meyer points out in the following chapter, that the western states generally give in-place uses of water-where they are protected at all-distinctly second class treatment. The first generation of laws, summarized in Part II of this book, reflects a general appreciation that some minimum level of flow in streams is desirable where possible, particularly if there i~ a viable fishery (preferably a sport fishery) in the stream.3S A major challenge in the development of the second generation of laws and programs will be to move beyond this narrow view of the value of in-place water and to invite consideration of all valuable in-place uses that warrant legal protection. Acknowledging the value of water in-place is not to deny its value for out-of- stream uses. Substantial continuing out-of-stream uses of water are essential to human inhabitation of the West. Out-of-stream uses require the manipulation of water resources, a manipulation that inevitably alters the hydrologic cycle. In recent years, however, an appreciation has developed that such uses of water must also be ecologically sustainable. Destruction or serious impairment of the ecological integrity of water systems for any purpose impose costs that are increasingly viewed as unacceptable. The primary concern is not the existence of out-of-stream water uses but the manner in which these uses are made. We believe that maintenance, protection, and restoration of the ecological integrity of the water systems of the West present perhaps the major challenge for water policy in the coming years. In its call for protection of the physical, chemical, and biological integrity of the nation's waters the Clean Water Act identified this challenge more than 20 years ago. Since then, scientists have been scrambling to give policy- relevant content to this concept. In the introductory chapter to Ecological Integrity and the Management of Ecosystems Henry Regier explains: A living system exhibits integrity if, when subjected to disturbance, it sustains an ongoing, self-correcting capability to recover toward an end-state that is normal and "good" for that system. End-states other than the pristine or naturally whole may be taken to be "normal and goOd."36 1-16 I I I I I I I I I I I I I I I I I I I