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I I I I I I I I I I I I I I I I I I I In a later chapter James Kair notes that "[e]cological health is the condition when a system's inherent potential is realized, its condition is stable, its capacity for self repair, when perturbed, is preserved, and minimal external support for management is needed."37 Much work remains to be done on defining the parameters by which ecological health of a watershed can be objectively measured and evaluated. But scientists seem to be suggesting that it is the functionality of an ecosystem that defines its integrity, not some notion of a pristine, unaltered state. Natural systems are altered for valid social reasons. It is not necessarily the nature or degree of alteration that is important but whether the alteration impairs or destroys important ecosystem functions. Conditions threatening the continued existence of plant and animal species are regarded as unacceptable, and general ecosystem health is increasingly regarded as the goal. Water laws, including instream flow laws, do not yet embrace this goal. A first step would be to eliminate the narrow purposes that presently confine most western state instream flow laws.38 There is no sound reason for statutorily limiting the reach of these programs, as is often now the case, to the minimum water required by fish. As a general matter the water allocation system should be available to recognize and protect any valuable use of water. Thus, for example, water needed to support valuable wetlands ought to be legally protectable under state water allocation systems; at present, such protection is either unavailable or is subject to meaningless requirements.39 A second, related step would be to eliminate statutory restrictions regarding who may seek and hold an in-place water allocation. Most western states allow only certain specified state agencies to officially request protection of in-place water; usually only one state agency can formally apply for and hold the legal protection for the water. Thus, in Colorado only the Colorado Water Conservation Board can file for an instream appropriation in water court, though the Division of Wildlife and the Division of Parks and Outdoor Recreation are to identify instream needs and the Departments of Agriculture and the Interior are invited to offer "recommendations" to the Board.40 Cities, nongovernmental organizations, businesses, and individuals are precluded from seeking and obtaining an in-place right through the state program.41 A third step would eliminate existing statutory restrictions found in some states to a "minimum" permissible quantity of water available for in-place uses. The beneficial use requirement of prior appropriation law already makes clear that water uses are limited to only that amount of water necessary to accomplish the intended use. Explicit statutory references to a minimum amount of water only in relation to in-place uses suggest again a second-class status for these uses. Language in the Nebraska statute limiting instream flow appropriations to the minimum necessary to maintain the use prompted a challenge to a proposed application as excessive since fish could survive on lower flows than those sought.42 The Nebraska Supreme Court noted that the purpose of the proposed instream flow appropriation was to protect a high quality trout fishery and upheld the 1-17