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
Copyrightę 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.

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