Third, many Western States allow for an administrative agency to 

 "condition" new water rights to protect flows on behalf of instream values or 

 the public interest. In most of these States, when an application is made for 

 a water right, the application is reviewed by concerned agencies. One 

 consideration is the maintenance of instream uses. To ensure proper flow 

 regimes, the conditions are often attached to a new permit for a water right 

 so that the water right holder may not use the water if (when) it drops below 

 a specified flow (Tarlock 1977; Lamb and Meshorer 1983). 



Fourth, a number of States have instituted State-level protected rivers 

 programs, in which rivers are classified as wild and/or scenic. These designa- 

 tions typically specify that future withdrawals of water are either limited or 

 prohibited altogether (Tarlock 1978; Lamb and Meshorer 1983). 



Various of other innovative methods for instream flow protection have 

 been devised and successfully implemented in the West; at the Federal level, 

 the opportunity exists for States to participate in the National Wild and 

 Scenic Rivers program (P.L. 94.486). Some of these include: conditions on 

 transfers and exchanges of water rights, or even the prohibition of both; 

 permits for a designated period of time only, not in perpetuity, which revert 

 back to the State at the end of that period; and the acquisition and realloca- 

 tion of existing water rights through purchase or condemnation. In addition, 

 a number of strategies have been developed in synchronization with the imple- 

 mentation of State and Federal water quality programs (Dewsnup and Jensen 

 1977a); the State police powers to protect the health, safety and welfare of 

 its citizens (Huffman 1983); and the gradual expansion of the definition of 

 navigability (Dewsnup and Jensen 1977a; Tarlock 1978). 



2.2 THE EAST: RIPARIAN RIGHTS 



Riparian rights are also rights associated with the use of the water — 

 rather than "ownership" of the water in question — but no diversion or actual 

 use of the water is required. This doctrine was adopted from 19th century 

 practices in England and seemed suitable for the eastern part of the United 

 States, given the abundant water supplies there. Under the riparian doctrine, 

 water rights are obtained by contiguous ownership of the land touching the 

 water (Cunningham 1973; Davis 1982). Each riparian landowner is entitled 

 equally to the water. Initially, this meant riparian users were absolutely 

 entitled to have the water flow along their property "undiminished in quantity 

 or quality" (Cunningham 1973:181; Davis 1982:47-80; Lamb and Meshorer 1983: 

 1-17), even if the water was not being used. This rule seemed quite 

 appropriate, since in the humid East, diversionary irrigation was unnecessary 

 and mining was not a major industry. Outside of domestic uses, moreover, the 

 primary need for water during the 19th century was to power mill wheels. With 

 the natural flow requirement mill owners were assured of enough continuous 

 flow to satisfy this need (Davis 1982). Only a few Eastern States, however, 

 currently adhere to this rule. In other areas, the rule has been modified to 

 provide that "reasonable" uses be made of the water in a stream system, a 

 principle that seeks to promote the fullest riparian use of the water. 



