Western State Instream Flow Programs

During their early history, Western States water rights laws were primarily means for facilitating and regulating water diversions for offstream, consumptive use. More recently, a countervailing concern for instream values such as fish and wildlife habitat, recreation, aesthetic values, and water quality has emerged in the legislative and administrative handling of water rights. As of 1988, the Western United States show a variety of approaches to balancing instream and diversion water rights, from zero control through administrative actions to legislatively established rights for guaranteed instream flows. The nine Western States that have adopted statutory instream flow protection programs include Alaska, Colorado, Hawaii, Idaho, Montana, Oregon, Utah, Washington, and Wyoming. Arizona, California, and Nevada have relied, to date, on administrative and judicial decisions, while New Mexico has established no mechanism for protecting instream water uses. In the States with statutory protection, instream water uses are granted the same legal status as any other water uses under the prior appropriation doctrine. The success of instream flow protection has been remarkable, given the controversial nature of the issue, with nearly 2,000 stream reaches protected.

Recommendations for the two instream flow programs are presented, and a model instream flow program is outlined.

This chapter will provide a brief overview of several approaches taken to recognize instream flow rights and integrate those rights within the overall water rights allocation system adopted by states in the western United States.