About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

17 Land & Water L. Rev. 139 (1982)
Statutory Recognition of Instream Flow Preservation: A Proposed Solution for Wyoming

handle is hein.journals/lawlr17 and id is 149 raw text is: STATUTORY RECOGNITION OF INSTREAM FLOW PRESERVATION: A PROPOSED SOLUTION FOR WYOMING The appropriation doctrine of western water law, specifically designed to permit individuals to divert water from a watercourse, has been criticized for generally disregarding instream values.1 In light of this fact, the majority of western states have recognized the value of dedicating water to in- stream uses through the enactment of statutes which provide for instream flows for fish, wildlife and recreational purposes.2 Unfortunately,Wyoming is presently not a member of this ma- jority, having failed to provide for instream flow rights by statutory or other means.3 However, the issue of instream flow recognition in the state of Wyoming has been of growing con- cern in recent years. In 1981, several instream flow bills were introduced into the Wyoming legislature and although con- siderable support was shown, none of them managed to gain Copyright© 1982 by the University of Wyoming. 1. U.S. NATIONAL WATER COMMISSION, NEW DIRECTIONS IN U.S. WATER POLICY 63 (1973) reported the following: The water law systems of most of the States, both in the East and the West, are defi- cient in that they fail to give appropriate recognition to social values of water. These values arise primarily from such instream uses as fish and wildlife propagation, recreation, and aesthetics. The appropriation law of the Western States generally requires diversion of water from the stream or lake and its application to beneficial use in order for a water right to be created. Instream values are thus heavily dis- counted; water has been diverted from streams to such an extent that instream values which should have been protected frequently have been impaired, and sometimes destroyed .... [Wihere the action can be taken without impairing vested rights, State officials should be authorized to set minimum stream flows and lake levels to protect in situ values. 2. ALASKA CONST. art VIII, 5 13; ARIZ. REV. STAT. 5 45-141 (Cum. Supp. 1980); CAL. WATER CODE S 1243 (Cum. Supp. 1981); COLO. REV. STAT. S 37-92-101 to 103 (1973); IDAHO CODE SS 42-1501 to 1505, (Cum. Supp. 1981); KAN. STAT. S 82a-703a (Cum. Supp. 1980); MoNT. REV. CODES ANN. SS 85-2-102(2), 85-2-316, 87-5-501 (1979); NEV. REV. STAT. S 533.030 (1979); ND. CENT. CODE SS 61-04-02, 06.1 (Supp. 1979); OR. REV. STAT. SS 536.300(1), 537.170(3Xa), 538.110-.300, 543.225(3) (1979); TEX. WATER CODE ANN. tit. 2, SS 5.023 to 5.024 (Vernon 1972); WASH. REV. CODE ANN. S 9.22.010-.040 (Cum. Supp. 1981). 3. The Wyoming legislature has made some attempt to recognize the value of fish, wildlife. recreation and aesthetics in the state water laws, but such recognition has not led to any direct statutory means of preserving instream flows. Wyo. STAT. S 41-2-101, -103 (1977) provide in part: A stream preservation feasibility study is authorized to determine methods and criteria for preserving the scenic and recreational quality of Wyoming rivers and streams. The study committee shall: (i) Make preliminary surveys to define the character, quality, recreational, scenic, historical, aesthetic, fish and wildlife potential, and any other values to be considered in preserving streams for public use and benefit; (ii) Plan a state scenic and recreational stream preserva- tion system to meet the needs of the people of Wyoming; (iii) Evaluate and describe the potential of any streams which might be identified as meeting the criteria of the preservation system; (iv) Prepare a report on the proposed preservation system for presentation to the governor on or before October 1, 1974, and also make the report available to the public; (v) Prepare and submit to the legislature any recommendations for a stream preservation system on or before January 1, 1975. This 1973 enactment did not lead to any legislative stream flow preservation system.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most