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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ever existed outside of folklore and dictum) is rapidly falling out of favor across the West.
The great majority .of western states have come to recognize-to a limited extent-the role
of instream uses within the prior appropriation system.

Barriers still stand, however, to the full integration of instream uses into state
water allocation systems. Barriers (such as the "second class" treatment of instream flows
discussed above) are not due to any natural incompatibility between instream rights and
the prior appropriation doctrine. Far from it; the doctrine is fully up to the task of
accommodating modern needs. All that remains is to eliminate those legislative
restrictions which are essentially alien to the doctrine's nature.

The most pervasive and frustrating limitation on instream rights in most western
states is the prohibition against ownership of instream rights by persons other than a
designated state entity. This prohibition is a curious twist on the prior appropriation
doctrine. It reflects a basic discomfort with the concept of instream rights and an
underlying distrust of those entities which may seek to acquire them, particularly
environmental groups and the federal government. Many states, it seems, have struck a
compromise in which instream values are recognized as legitimate, but the people acting
through the prior appropriation doctrine are not trusted to fairly allocate those rights.

Ironically, then, the drafters of such programs have turned away from the market-
based principles which underlie the prior appropriation system, and have embraced
principles of command-and-control resource allocation-socialism, if you will-with respect
to instream rights.47 In short, western states for over a century have entrusted farmers,
municipalities, and hydroelectric companies with making fundamental decisions about
where water will flow. Yet these same states suddenly lose confidence in the prior
appropriation system when it comes time to allocate resources between consumptive
users and those whose interests are benefitted by leaving water in rivers.

Much of the hostility to instream flow programs, it seems, is based on
misapprehension of their function. Properly administered, instream uses pose no threat
to the valuable property rights of existing users. While they may "tie up" a stream and
complicate efforts of new users to develop sources of supply, so do all water rights. That
is the nature of property rights generally. In the long run, the people are better served
by the state facilitating negotiation and market transactions than they are served by
government control of instream flows by fiat.

Indeed, an effective instream flow program is the West's best defense against
threats to the integrity of state control posed by the federal government, over-zealous
environmentallitigators, and out-of-state users. Farmers, cities, developers, and
industries-as well as recreational users-each may benefit from a viable free market in
instream flows. Such a market, free of unnecessary government interference, is what the
prior appropriation doctrine was meant to provide.

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