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<br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br /> <br />Chapter 3 <br /> <br />People Preserving Rivers: The Public and its Changing <br />Role in Protecting Instream Flows <br /> <br />Lori Potter <br /> <br />Introduction: Rethinking the Public's Rights <br />in Instream Flow Preservation <br /> <br />Five years ago, I wrote of a revolutionary change taking place in the thinking and <br />the actions of members of the public who use and enjoy instream flows.2 No longer <br />content to let farmers and cities and industries lay undisputed claim to the title "water <br />user," the ever-expanding community of rafters, land trusts, hunting resorts, <br />conservationists and others were moving in to assert their interests as water users, too. <br />And, once these non-traditional water users thought of themselves in this new way, I <br />predicted, it would not be long before they began to flex their muscles and exercise the <br />same sorts of rights and remedies that we long have associated as belonging to <br />consumptive water users. <br /> <br />The prediction was wrong only in that it was too cautious. The public is much <br />further ahead of the curve than I suggested. Discouraged or impatient with state <br />instream flow programs, the "new water users" have made creative use of the <br />Endangered Species Act, legislation creating federal reserved water rights, and other <br />strategies to protect flows in rivers. Meanwhile, ironically, some fairly traditional water <br />users are beginning to push the envelope of the state programs. Those programs are still <br />lagging somewhat behind the increasingly vocal and ambitious public demands for stream <br />preservation, but they are struggling to make reforms. <br /> <br />This chapter will survey those developments, discuss their ramifications, and <br />venture a few more predictions on where the current of streamflow protection is taking <br />us. Colorado continues to be something of a laboratory for experimentation with <br />instream flow regimes, perhaps because of its oft-cited surfeit of water lawyers, and <br />therefore provides the majority of illustrations for the points developed here. <br /> <br />Developments in the Law of Public Enforcement <br /> <br />Whatever the many differences between them, state instream flow statutes and <br />federal environmental protection laws alike appear to have protection of the public <br />welfare as their core concern. One need only dip at random into this pool of authority <br />to spot this common theme: compare, for example, the statute authorizing a state <br />