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liU.il'H' ~ .,"", 43 " '..,' ,., tion that delegates to an agency the power to appropriate instream flows on the same standing and with the same force as other vested water rights, In Colorado, more than 6,500 miles of rivers and streams currently carry instream flow rights designed to help maintain the minimum flow needed to sustain the natural en- vironment, In the headwaters of the Rio Grande, these state created flow rights are concentrated in the Conejos river, a tributary to the Rio Grande which is important to local fishing and other recreational activity, Other slate strategies for instream flow protection include requiring that new diversions allow a specified amount of flow to bypass the diver- sion in order to sustain fish or other instream flow values. This approach is heavily used in California and Washington. In Arizona, the Depart- ment of Water Resources has allowed private applicants to claim instream flow rights for important stream reaches, while Utah and several other states provide for changing senior irrigation water rights to instream flow purposes in order to enhance depleted flows. New Mexico is the only western state that does not recognize either a pub- lic or private right 10 instream flow protection under state law. In 1987, as well as in previous years, attempts were made to pass a bill through the New Mexico legislature to recognize limited instream flow rights, The bill would have allowed water rights holders to change their existing water uses to instream flows in order to promote fish promulgation. The proposal has been consistently defeated, although in 1987 it passed the House of Representatives before dying in Senate committee. As in past years, the New Mexico State Engineer testified on the 1987 bill and expressed his concerns over its provisions, Specifically, he ques, tioned whether a water right could exist without a diversion under the state constitution, whether instream flow rights might result in sending water out of state, and whether the high cost of administering instream flow rights would be worth the bene- fit. Representatives from the agricul, tural community also expressed reservations about the practical effect of such a law on their water rights, All parties, however, were open to the general concept of instream flow protection and expressed a willing- ness to consider innovative solutions in the future, In the meantime, efforts outside the legislative arena are taking place to help maintain instream flows in important reaches of the Rio Grande basin of New Mexico, For example, whitewater rafting inter- ests have negotiated with Albu. querque and the Middle Rio Grande Conservancy District in an attempt to enhance recreational opportunities in the Rio Chama. The city and district agreed to schedule their summer releases from EI Vado reservoir to cor- respond with weekend rafting needs in the stretch above Abiquiu Reservoir. Another example of cooperation to enhance instream flows involves the Bureau of Reclamation extend- ing their San Juan-Chama water annual delivery deadline from December 31 into April in order to allow for more consistent flow to maintain winter fisheries. The Bureau has also agreed to release a minimum natural flow from Nambe Falls Dam in order to ensure that 0.5 cis is maintained at Nambe Falls, a significant site in Indian religion and culture. The federal government is working to protect or enhance instream flows not only through cooperative efforts, but also through claiming rights in court based on federaIlaw. Under the federal reserved rights doctrine, national parks, forests, military bases and other federal reservations have water rights reserved for existing and future needs, At national wildlife refuges, national parks, and other federal reservations where free-flowing waters are important to the purpose of the reservation, instream flow rights may exist even in those states that do not recognize such rights under state law. In the upper Rio Grande basin of Colorado, the federal government has claimed instream flows through the Alamosa National Wildlife Ref- uge, the Great Sand Dunes National Monument, and in the national forests. This final claim to instream flows through the forests is the most controversial. In 1978, the U.S. Supreme Court ruled that instream flow rights were not origi- nally established in the national forests to protect recreation and the natural environment. The Court found that the purpose for the original national forest reservations was more limited-to furnish tim- ber and to protect the watershed for flood control and for delivering reliable water supplies to down- stream users. After losing its claim to instream flow rights based on recreation, the Forest Service began claiming instream rights on the basis that such flows are needed to move sediment that would other- wise clog the streams and defeat the forests' purpose of flood control and water delivery. These claims in the Colorado forests are expected to reach the state's supreme court, and probably the U.S. Supreme Court, in the near future. In the Rio Grande basin of New Mexico, federal reserved rights to instream flows have been litigated in the Red River, the lower portion of which was designated a Wild and Scenic River by Congress in 1968, The United States claims that this designation created an instream flow right of an amount sufficient to protect the fish and recreational activities associated with the lower stretch of the river, The State of New Mexico agreed and stipulated to an instream flow right, The fed- eral judge hearing the case, how- ever, disallowed the instream flow claim in his ruling. An appeal of this decision is pending, ~