The appropriation doctrine in general reflects the struggle in the 

 American West to protect the "certainty" or dependability of water rights and 

 to "fix" the relative positions of users. The ultimate result of these forces 

 has been the development of a "consumptive ideology," which perpetuated the 

 notions that: (1) water not used is wasted or lost; (2) only economic, diver- 

 sionary uses are beneficial; and (3) individuals have the right, if all other 

 requirements are met, to use the alloted amount of water no matter what condi- 

 tions prevail (Lamb 1980b; Mann 1982b). Currently, the appropriation doctrine 

 requires meeting five standards: (1) intent to appropriate; (2) notice of 

 such intent; (3) adherence to State laws; (4) diversion or physical control of 

 the water; and (5) application to a beneficial use (Gould 1977; Huffman 1983). 

 The latter two requirements have long stood as historical road blocks to the 

 preservation of instream flows. The law has moved beyond the necessity of 

 capture as the basis of a Western water right, however, and now capture tends 

 to be justified only when it serves some clear resource allocation function 

 (Tarlock 1978). Indeed, most contemporary Western water law experts recognize 

 that the actual diversion requirement serves no real function today that 

 cannot be otherwise achieved through statutory procedures (such as permit 

 systems) (Tarlock 1978). 



Western water law adopted the view that "inefficient" or cost-ineffective 

 water use could only be controlled or eliminated through the beneficial use 

 requirement. Since the economic benefits of instream values were difficult to 

 determine and document, instream uses were traditionally regarded as grossly 

 inefficient and thus denied in favor of other claimants, such as energy devel- 

 opers. In light of current widespread acceptance of instream values, however, 

 instream uses of water have increasingly come to be recognized in State 

 statutory schemes as "beneficial" (Tarlock 1978; Meyers and Tarlock 1980). 



Since the early seventies. Western States have made rapid, creative 

 adjustments in water rights systems to accommodate changing needs (Mann 1982b). 

 While there continue to be conflicts, four major types of instream flow 

 programs have emerged among the Western States (Dewsnup and Jensen 1977b). 

 First, several Western States have adopted instream flow reservation systems, 

 wherein a basic flow level is set aside below which no new water rights can be 

 granted. These reservations have the date of enactment as the priority date. 

 Water rights senior in time to the reservation are not affected. Persons who 

 desire to obtain a water right after the date of reservation may use water 

 only when the reserved flow is satisfied. Additionally, all prior users get 

 to use the water before the reservation is satisfied. Enforcement provisions 

 vary among the States using this technique, but the basic idea is the same: 

 some percentage of a stream's flow is reserved from all subsequent out-of- 

 stream use (Dewsnup and Jensen 1977b; Lamb and Meshorer 1983). 



Second, some Western States have developed, by statute, specific stream 

 flow appropriation systems. Instead of reserving water from future use as is 

 the case with reservations, the appropriation system grants an appropriati ve 

 water right for a given instream use. The States that employ this mechanism 

 provide that only a designated State agency may hold these water rights; there 

 have been, however, a few instances of individuals holding instream use water 

 rights (Tarlock 1978; Lamb and Meshorer 1983). 



