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The Historical Context for Instream Flows
<br />Charles F. Wilkinson
<br />Moses Lasky Professor of Law
<br />University of Colorado
<br />Boulder, Colorado
<br />The adequacy of instream flows has become a national issue, but the matter is most
<br />acute in the American West. In retrospect, given the juxtaposition of nineteenth-
<br />century laws and contemporary needs, the current stresses on the region's river systems
<br />were inevitable.
<br />From the beginning, western rivers and lakes have been parcelled out by the dictates
<br />of the pure prior appropriation doctrine. There were no shades of gray. Western water
<br />was there for the taking by extractive users with no restraint by the public. As one
<br />writer in the 1920's put it, "men took the water they wanted like they would berries
<br />from a bush or a rabbit on the plain" (Lasky 1929:58). The extractive bias of prior
<br />appropriation was natural for the nineteenth century. Society in the West depended
<br />absolutely on the mines, the farms, and the ranches, and each of them in turn depended
<br />absolutely on a steady supply of water.
<br />Agriculture, ranching, and mining remain important, but the region is much more
<br />complicated now. The end of World War II marked the beginning of fundamentally
<br />different times. The permanent population boomed; metropolises replaced cities and
<br />cities replaced towns. The number of visitors, most of them recreationists, multiplied
<br />several times over. Indian tribes began to exert rights to land, natural resources, and
<br />political power. Chicanos first wondered why the land and resource rights promised
<br />in the 1848 Treaty of Guadalupe Hidalgo had never materialized, then they began to
<br />take action. Environmentalism came to the fore, first as a political movement in the
<br />1960's and 1970's, then as an accepted part of the shared regional consciousness. The
<br />West's new identity, and its new dreams, were evocatively set out for us by the rich
<br />and dynamic body of modern western literature-Wallace Stegner was the father, and
<br />his sons and daughters ranged from Missoula to Las Cruces, from Chippewa country
<br />to San Francisco.
<br />These deep societal changes came to bear on the West's water policies and laws. Pure
<br />prior appropriation continues to have its merits, but it is too narrow, too absolutist, to
<br />meet all of the calls of the modern West. Rivers must now account to more people, and
<br />must represent more things, than the old policies can accommodate.
<br />Rivers is an effort-at once both carefully considered and ambitious-to respond to
<br />the new, multi-faceted context. The journal is necessarily interdisciplinary, and the mix
<br />of thinking from many different angles is one of Rivers' hallmarks. Rivers are too
<br />complex, too varied, to be understood in any one way: We need to hear from biologists,
<br />economists, policymakers, lawyers, engineers, historians, planners, and others. We need
<br />to learn the full language of today's rivers, from acre feet to aquatic base flows to habitat
<br />suitability curves to benefit-cost analyses to beneficial uses. We need, also, to always
<br />remember the language of the rivers themselves-witness, as presented in this first
<br />issue, the "laughing waters" of Aravaipa Creek in Arizona.
<br />The birth of a new enterprise-especially a timely, creative, and, as I say, ambitious
<br />one-brings with it hope for some measurable progress, for yet better and wiser times.
<br />This inaugural issue of Rivers implicitly marks out its own set of expectations: that
<br />IN-6 Rivers • Volume 1, Number 1 Pages 6-7
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