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I I I I I I I I I I I I I I I I t I I Chapter 2 Instream Flows: Integrating New Uses and New Players Into the Prior Appropriation Systeml Christopher H. Meyer The Traditional Diversion Requirement Traditionally, western states required a "diversion" to beneficial use before a water right could be recognized. Under a literal reading of this requirement, a legally enforceable right to the use of water could only be obtained for water removed from a natural watercourse. A person seeking to protect natural (or, for that matter, artificial) streamflows from subsequent appropriation and diversion. simply could not do so. In a classic early case, a federal court sitting in Colorado denied a water right to a resort town constructed around a cascading waterfall whose spray created an oasis of lush vegetation in the desert mountains near Colorado Springs.2 The waterfall, the court suggested, was an "inefficient" means of irrigation.3 The decision would have authorized a hydropower company to destroy the central attraction of a thriving town by diverting the falls. (As it turns out, the project never was built.4) In today's thinking, the decision may seem strangely reasoned. While it is true that using a waterfall may be an inefficient means of irrigating flora, it is certainly an efficient way of supporting a resort community-a point seemingly lost on the court. Given a compelling fact setting like that of Cascade Town, the diversion requirement seems frustratingly arbitrary-a sort of Catch-22 for instream users. In fact, however, the diversion requirement had its basis in perfectly sensible public policy of the day. It protected against three types of abuse: First, it prevented speculators from obtaining water rights simply by asserting a claim to unappropriated water-and then selling the water to legitimate users arriving later. Second, it served an important notice function. In days prior to sophisticated record keeping and administration, about the only way a user could determine the state of water rights was to take a look at the stream. If people could hold rights for water left flowing in the stream, subsequent users could be misled into thinking that more water was available for appropriation than actually was the case. Third, the diversion requirement eliminated wasteful uses, for instance by users who sought to command the entire flow of a stream simply to run a waterwheel or irrigate adjacent lands by natural overflow.5 In addition, the diversion requirement simply reflec~ed the pragmatic view of the early settlers that eking out a living was more important than protecting the natural environment. Indeed, this clash of values has fueled decades of hostility between traditional consumptive water users and a growing cadre of river activists. Some water