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2-4 I I I I 'I I I I I I I I I I I t I I I Farmer Jones has a senior water right to divert the entire 10 cfs of water from the stream, but that 4 cfs of that diversion finds its way back to the stream as return flow below the Jones Farm. Because instream rights must take their place in the priority system along with all other water rights, instream rights may only be obtained for what is left flowing in the stream. As a matter of law, Farmer Jones cannot be injured by a newly appropriated instream flow (or any other new appropriation, for that matter.) Thus, instream flow rights could be obtained today for up to 10 cfs for the reach between the headwaters and the point of diversion, for up to 4 cfs downstream of the Jones Farm return flow, and for none in between.9 (An instream right would not necessarily be sought or approved for the entire remaining flow. It might claim considerably less if a lesser amount is all that is needed to achieve the beneficial use sought.) Because instream rights are administered within the priority system, Farmer Jones will always be able to make his diversion first, even if it has the effect of reducing flows below his farm to less than 4 cfs. For instance, if flows drop to 8 cfs, Farmer Jones would be free to take it all and (assuming the same 40 percent return rate) would return only 3.2 cfs below his farm. In short, the prior appropriation system guarantees that existing uses are not to be affected by junior instream rights. If an instream flow right cannot take water away from existing uses, what is the point of securing an instream flow water right with a junior priority? The answer is that it preserves the status quo. It does this in two respects: First, if there is any water left in the stream after the seniors satisfy their needs, that remaining flow may be protected from subsequent new appropriators. For instance, a new user could not build a hydroelectric diversion project upstream of the Jones Farm. (If it consumed no water and returned the water to the stream prior to the Jones diversion, the project would not injure Jones, but it would injure the instream flow right upstream of the Jones farm). Nor could a new user take additional water out of the protected stretch downstream of the Jones Farm. Second, and this is important, the junior instream right prevents seniors (like Farmer Jones) from moving their points of diversion upstream into the protected reach. Suppose that in 1995 Farmer Jones decides to sell his water right to Big City, and Big City wants to take out the water farther upstream toward the headwaters (so that it will flow into town without pumping). Even though Big City steps into Farmer Jones' shoes and obtains a senior water right, it may not change the point of diversion if to do so would injure any other water right-including junior instream flow rights. In other words, it is possible to protect pristine mountain streams with very junior instream flow water rights. The long and the short of it is that instream flow rights pose no threat to any existing use of water. On the other hand, they may block or complicate further development (in the form of changes, transfers and new users). But then again, so do all