A Reconsideration of Instream Appropriative Water Rights in California

In 1979, two California Courts of Appeal ruled that the state's water rights system does not recognize the appropriation of water for the purpose of maintaining minimum instream flows. Fullerton v. State Water Resources Control BoardI held that the State Department of Fish and Game had no authority to appropriate water for instream flows to protect the state's beneficial interest in its fisheries. Similarly, California Trout, Inc. v. State Water Resources Control Board 2 decided that private parties may not appropriate water for instream uses. 3 Justice Cruz Reynoso, then a member of the Court of Appeal for the Third District in Sacramento, dissented.4 According to Justice Reynoso, "neither diversion, possession, or physical control is an essential element of a valid appropriation right," 5 and a private, nonprofit organization such as California Trout "may appropriate water for the public use" and "may assert the public trust contained within the fish and wildlife resources of the