7882

• UCREFRP Catalog Number: 7882
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection in the Western United States
• USFW Year: 1988.
• USFW - Doc Type: A Pratical Syposium, March 31-April 1, 1988.
• Copyright Material: NO

administratively nor legislatively recognize instream flows as a
protectable beneficial use of water under any circumstances. ~
The characteristics and effectiveness of instream flow
strategies embodied in statute differs greatly from state to
state. The legislatively created programs fall into four basic
categories described in the following sections.

A. PROHIBITIONS AGAINST NEW DIVERSIONS
The earliest form of instream flow protection to appear
legislatively in the West involved prohibiting new diversions
from specified streams. In the 1920s, Oregon placed a moratorium
on new withdrawals from a number of streams with important salmon
fisheries and scenic beauty. A typical statute read:

"The unappropriated waters of Milton Creek and its
tributaries are withdrawn from appropriation except for
domestic use through the year and storage during the period
beginning November 1 and ending April 30 of each year."[6]

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Some western states expanded this concept into a
comprehensive program for protecting wild and scenic rivers from
further appropriation. For example, in 1972, California declared
that it was state policy "that certain rivers which possess
extraordinary scenic, recreational, fishery, or wildlife values
shall be preserved in their free-flowing state."[7] The
legislature provided that no dams could be built on certain
rivers and no diversions approved that would adversely affect the

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