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wildlife.3 In 1987, the 1984 bill was reintroduced.4 Then, in 1987, an elaborate bill entitled the "Instream-Flow Protection Act" was introduced into the Legislatures The proposed act would have given the state game commission authority to inventory streams and stream segments for purposes of establishing instream-flow protection. Invento- ried waters to receive such protection would have ulti- mately required specific legislative approval at a subsequent session, however. In 1991, in the last general legislative session, the Legislature considered two additional relevant bills, one of which was identified as the "Fish, Wildlife and Recreational Flow Protection Act,"' and the other of which was a repeat of the 1984 and 1987 efforts to waive the beneficial-use requirement for water left in its natural channel.' Historically, the bills have fallen into two categories, the first category being philosophical and significant in applica- tion, reflecting broad concern for the beauty and wildlife dependent on rivers and streams throughout the state. The bills in this category also would have bestowed consider- able centralized authority in named state agencies. The second category of bills was specific and remedial in nature, designed to avoid or modify particular technical require- ments of water-right ownership developed through Western water law. All the bills had one thing in common, however: None of them was enacted into law. The instream-flow debate in New Mexico is probably typical of the debate that takes place in all of the semi-arid Western states. It is strongly influenced, perhaps driven, by the fact that the surface water supply is already fully appropriated and often over-appropriated. It aligns the so- called "water establishment" against the environmentalist sportsman. It aligns traditional water interests against new water interests. With 50,000 rafters now running limited reaches of the Rio Grande each year, it may also be aligning the old communities along the river against the commercial interests, which are invading the quiet pastoral way of life established in those communities. Without appropriate legislative attention, of course, the instream-flow concept poses unresolved legal issues as well. For example, the state constitution proclaims that beneficial use shall be the basis, measure, and limit of the right to the use of water.8 Certainly, someone will challenge whether instream flow is a "use" of water in the constitutional sense. And while our courts have already found fishing and recreation to be beneficial uses ,9 they have not ruled on whether instream flow is a part or logical extension of those uses. Further, our Supreme Court has ruled that a man- made diversion is necessary to appropriate water for agricultural purposes. 10 The ruling is often cited for the proposition that a water right requires a diversion, but whether that 20-year-old ruling will withstand a modem challenge or be confined to a specific application like agriculture awaits additional judicial scrutiny. The problems of instream accounting, administration, and enforcement have always been a concern where instream-flow is discussed, and they continue to cause concern. Of course, until the specific rivers and streams, or portions thereof, affected by instream-flow are designated and until the required flow itself is determined, the prob- lem of accounting, administration, and enforcement cannot really be addressed to the satisfaction of the interested parties. But the climate for instream flow in New Mexico is not all negative: 1. The state's next general legislative session convenes in January, and there is every expectation that instream-flow bills will again be introduced. 2. Discussions with U.S. Fish and Wildlife and Bureau of Reclamation regarding stream flow in several rivers for the benefit of endangered and threatened fish and species are currently in progress. 3. Instream flows supported by federal reserved rights have already been recognized by the state in parts of two stream systems and discussions regarding an additional stream system or two are likely. 4. Legislation extending the wild and scenic reach of the Rio Grande is presently before Congress. 5. The practice of using public funds for the purpose of retiring rights on and conserving the waters of the Pecos River is in effect in New Mexico for compact purposes now, a practice which could serve as a precedent for state-funded instream flow in the future. 6. In considering applications for water rights and changes in purpose and place of water-right uses, the state engineer is now obliged to consider the impact on public welfare and conservation as well as the traditional test of impairment. Neither public welfare nor conservation are presently defined in the law, however, and we are involved in the first legal challenge to the state engineer's use of the public welfare criterion. 7. And, perhaps most significantly, there is a continuing dialogue in this area and, I believe, a growing realization that at least some instream-flow situations can be beneficial to all parties. The need to turn adversaries into allies would obviously go a long way in implementing a successful instream-flow program in a semi-arid state. Inevitably, and naturally, the question arises regarding my position on instream flow. If I have learned anything in my brief term as the new state engineer, it is to avoid sensitive and emotional questions that are out of context. The lesson becomes even more vivid in an area lacking 41