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

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large enough to be measured that far.' Ordinarily, however, instream flow are protected
within some discrete reach, e.g., the location of an important fishery.8

H an existing consumptive use is transferred to an instream use, the protected
reach might be anywhere downstream of the point of diversion. Arguably it could
include the reach upstream of the point of diversion, too. The previous water right
served as a sort of de facto instream right down to the point of diversion, in that it could
call flows to that point. The new owner should be able to claim the same right by
stepping into the shoes of the previous owner.

Despite its name, an "instream" right does not have to be in a moving stream. It
may also be obtained for a lake (or other standing body of water) or even a wetland. In
such a case, the right would be for whatever quantity of water is needed to maintain a
particular lake level or other condition.

There are many misconceptions about how instream flow water rights integrate
with other water rights. Some people believe that a gallon of water committed to
instream use is a gallon of water unavailable for other uses. Other people believe that
because instream flow rights consume no water, they have no adverse effect on other
users. While either conclusion might be right in a particular fact situation, neither
statement is accurate across the board. The truth generally lies somewhere in between.

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Figure 1 A junior instream appropriation cannot deprive Farmer Jones of his senior water right,
but it could protect the status quo above and below his diversion.

Consider the somewhat oversimplified example illustrated in Figure 1 below.
Suppose that the streamflows at 10 cubic feet per second ("cfs"). And suppose that

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