Satisfying Instream Flow Needs Under Western Water Rights

Abstract

The appropriation system of water rights has been criticized for failure to provide adequate protection of instream flow values. The appropriation system is measured against 13 fundamental principles of good state water law. Within the context of this comparison, the implications with respect to accommodating instream flow uses are examined. It is concluded that the appropriation system can equitably incorporate instream flow uses, but is constrained by lack of “litigation proof” methodologies and technologies to project impacts and tradeoffs. The integration of instream flow rights is also retarded by lack of proper recognition of certain hydrologic imperatives that must be observed in order to correctly define the instream flow right. Instream flow rights must not upset the integrity of other rights within the common system.