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

2.2

I
I
I
I
I
I
1
I
I
I
I
I
I
I
I
I
I
I
I

users have charged that environmentalists simply fail to appreciate the economic benefits
we all enjoy as a result of the sweat and determination of those who reclaimed the West.
Some environmentalists, on the other hand, have charged that the prior appropriation
doctrine callously ignores natural values. Others, thankfully, have come to recognize that
the prior appropriation doctrine is well suited to accommodate both environmental and
developmental interests.

Today most western. states have determined that these policy goals can be
achieved without sacrificing instream values.' Recognizing that instream uses serve
legitimate economic as well as environmental goals, sixteen of the nineteen western states
have taken steps to accommodate them within the prior appropriation doctrine. Of
these, however, not one puts instream flow water rights on a par with consumptive uses.

Typically, states which recognize instream flow rights have adopted special
statutory restrictions. Many states allow only a single state agency-not private parties,
municipalities, or others-to hold instream flow rights. Additional procedures, such as
special tests or legislative approval, often are required to obtain instream rights. A
variety of conditions may be attached. They may be sharply restricted in rate of flow
(e.g., to the "minimum" needed to sustain fish life). Their duration may be limited, or
they may be subject to subsequent re-evaluation. Some states limit their availability to
specific geographic areas. Their transfer may be restricted. Even their priority date may
be modified. In short, while most western states now have recognized instream water
rights, they have been accorded by the legislatures a "second class" status.

The Mechanics of Instream Flows

Instream flow rights are no different in concept from ordinary water rights. They
must be approved by the state just like any other right. They are then placed on the
state's books with a fixed priority date, a specified flow rate, time and place of use, and
are administered like any other water right. Thus, if the instream flow right is "in
priority," it can "call out" junior users upstream and force them to bypass water to
support the instream flow. (To "call out" means to demand that upstream diverters forgo
their uses so that water remains available for the downstream senior use). Of course,
this does not guarantee that enough water will be in priority to meet the instream flow.
In this sense, (he often used term "minimum flow" is misleading. Flows may well drop
below the minimum. Whether the minimum flow will be met is a function of mother
nature and senior rights.

The only difference in administration is that a consumptive water right has one or
more discrete points of diversion, while an instream flow right applies throughout a
specified reach of the stream (from one point to another). How one determines the
endpoints of an instream flow is a matter of judgment. Theoretically an instream flow
could reach all the way from the headwaters to the state line-assuming the right was