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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Instream Appropriations by Private Persans

Although many states' minimum streamflow statutes specifically provide for the
appropriation of instream rights by a specified state agency, they sometimes fail to state
expressly whether this is the sole means of obtaining instream appropriations. It may be
that the statute has left open the question of whether a new appropriation of instream
flow rights might be made by a private appropriator. Particularly where the
appropriation of such water for fisheries and related values is made a beneficial use,
there is at least some basis to argue that the act allows any person to make instream
appropriations.22 .

Moreover, even if the legislature plainly intended to limit the acquisition of
instream rights to a single state agency, such restriction may violate the state constitution.
The "right to divert" expressed in many state constitutions23 has been read by some
western courts as a "right to appropriate"24 which, arguably, may not constitutionally be
restricted to particular classes. Thus, if it is a beneficial use for one, it is a beneficial use
for all. Moreover, any restriction on the transfer of a wat(;r right to instream uses may
run afoul of constitutional prohibitions against uncompensated "takings"2S or equal
protection requirements.26

In contrast to most Western states, which have ventured cautiously toward
recognition of instream rights while prohibiting (directly or by implication) private
ownership of in stream rights, at least two states, Alaska and Arizona, expressly have
opened their doors to private protection of instream rights. rT

Circumventing the Prohibition Against Private Ownership of Instream
Rights: When is an Instream Flow not an Instream Flow?

Perhaps the most telling development in the law is the extent to which
appropriators in Colorado have succeeded in circumventing legislative restrictions which
authorize only a designated state agency to hold instream flow rights.28 Of course, it has
long been held that reservoir storage and hydropower water rights are legitimate, on the
theory that the dam is itself a "diversion." Now others are employing the same strategy
to expand the definition of "diversion" to encompass situations which otherwise might be
characterized as "instream flows," thereby enabling water rights to be issued to entities
other than the state board.

The first such case to reach the Colorado Supreme Court was City of Thornton v.
City of Fort Collins.29 The City of Fort Collins applied for a conditional surface water
rightJO of 55 cfs along a segment of the Cache La Poudre river which runs through parks
and open space areas within the city. In the initial application, Fort Collins descnbed the
rights it sought as "instream rights" and named the river corridor itself as the diversion
structure. After negotiations with the Colorado Water Conservation Board ("CWCB"),