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

administrative determination that the claimed amount was in fact the minimum necessary
for this purpose. In-place uses are no different than any other proposed water
allocation: the purpose must be clearly identified as must be the water needed to
accomplish the purpose.

Implicit in these and other statutory restrictions is a legislative distrust of the
ability of the water allocation decision-making process in the state to identify legitimate
claims for in-place water needs and to reject claims that do not represent valuable and
desirable water uses. Extreme examples are Idaho and Kansas where the legislature
itself must pass on all instream flow appropriations. In retrospect it may be that such
restrictions will be understood as a reflection of the limited understanding of the value
and function of in-place uses of water at the time the laws initially were established.
Opponents of instream flows warned that environmental interests would lay claim to all
unappropriated water if allowed to make such claims-neglecting to mention that such
claims would, of course, have to be approved by the state water allocation agency or
entity. Proponents of the importance of streamflows for fisheries developed the first
scientifically-based methodologies for quantifying flow. requirements, thus making such
claims objectively reviewable in existing allocation processes.43 It is perhaps unsurprising
then that some states initially restricted instr~am flow protection to state agencies and
only for fish.

If ever there existed a rational basis for limited acceptance of in-place uses of
water that basis no longer exists. Once the water needs of fish are recognized as
legitimate it is a relatively short step to recognizing the water-related needs of wildlife,
riparian vegetation, wetlands, water quality and so on. Once claims made by state
agencies for in-place water uses are scrutinized and accepted by the state's water
allocation decision maker it is a relatively short step to acknowledging the legitimate
interests of federal agencies in meeting their public land management responsibilities, of
cities wanting to protect and enhance greenways within their boundaries, of conservation
and hunting and fishing organizations wanting to protect valuable fish and wildlife
habitat, and so on. An important task of the next generation of in-place water laws is to
eliminate artificial and meaningless obstacles and move instead to a process under which
all beneficial uses of water are permitted to compete freely for recognition and
protection within the legal system. The real challenge is not whether to do this but how
to make it work.

On the horizon are the promising developments involving watershed-based
planning, decision, and management processes. A watershed approach offers a
framework within which water can be reintegrated with the system of which it is a part.
It provides an opportunity to look comprehensively at the existing manner in which the
water resources of a definable area are providing benefits, to evaluate satisfaction with
this present mix of benefits, and to consider alternative mixes and how those alternatives
might be accomplished.

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