Nearly all western states allow for water to be kept instream as a “beneficial use.” For the most part, though, states have not taken the next steps to determine minimum stream flow requirements and mechanisms for acquiring the needed flows. In 1986, Colorado amended its instream flow law to allow for acquisition of senior water rights. Throughout the 1990’s, the state of Washington gradually implemented a program allowing state acquisition of water rights by outright purchase or lease, by donation for tax benefits, or by enacting state funded conservation measures on the condition that the water conserved be ceded to the state. Many of the possible policy strategies for accomplishing these goals are presented in this package, including a sample bill based predominantly on current Washington law, with some adaptations from other western states and incorporating many suggestions from the American Rivers website.

The Washington model of water resource management has been effective. It helped the Department of Ecology work through a serious drought in the summer of 2001. It also has allowed conservation groups and local citizens an opportunity to take direct action. Declaring water dedicated to instream flow as a “beneficial use” creates the possibility of local groups banding together to purchase water rights and leave the water in the stream. Under the law as previously defined, water had to be taken out of the stream and put to some type of consumptive use or the water rights could be lost.

On the land front, groups such as The Nature Conservancy have been able to purchase large areas of land in order to prevent them from being exploited by development. With the emergence of air pollutant credit trading markets, other groups have been able to lock up units of air pollution, stopping the pollution from entering the atmosphere. The inclusion of instream flow as a “beneficial use,” coupled with the application of minimum instream flow requirements, extends this possibility to waters as well. In recent years, water trust groups in Oregon and Washington states have successfully converted water rights from consumptive uses to instream flow in many priority basins.

While the sample bill is a strong measure to protect stream flows, each state presents different ecological, political, and legal situations which may benefit from alternative approaches.  The State Activity page includes a brief discussion of the various types of protections and approaches, presented in order to assist interested parties in weighing their options and exploring various examples from the states.