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I I I I 'I I I I I I I I I I , t I I I water rights. For example, a major hydroelectric dam or other project downstream on a river has the effect of preventing all new upstream consumptive use of that water. This is the way the prior appropriation doctrine always has operated. Instream Flows: ''Water Rights" or "Reservations"? Some states have statutes providing for the "reservation" of water for instream uses, rather than the "appropriation" of instream rights.10 Although these reservations are not technically water rights, their practical effect is much the same, at least so far as their interaction with other water rights goes. (Of course, the reservation approach to protecting minimum flows makes clear that only the state may do the reserving.) On the other hand, California's system of reserving water for instream purposes at the time of processing applications for consumptive use was found to be preempted by the Federal Power Act.ll The decision left the implication that had California created true water rights for instream flow, the Federal Energy Regulatory Commission might not have been able to override them (as it did California's minimum flow reservations) in the course of licensing a hydropower project. Indeed, states interested in protecting their instream flow programs against federal preemption would be well advised to strip away the baggage. The more they load up their program with special restrictions, the less they look like ordinary "proprietary" property rights, and the greater the chance that courts will determine them to be a preempted regulatory program. The Inundation Issue We usually think of a water right as a right to "call out" junior upstream diverters. An unanswered question is whether an instream right also may be used to prevent junior users from inundating the protected stretch of river with a new reservoir. We know that the holder of an instream right may complain when there is not enough water flowing in the river. May the instream right holder also complain when the river is "full" of water, but the water is sitting virtually still in a reservoir? In other words, does an instream right imply a right to free-flowing conditions? Take an example. Suppose Trout Unlimited held an instream right to 25 cfs on Swift Creek. When Growing Metropolis proposes to dam Swift Creek, may Trout Unlimited object on the basis of injury to its water right? Certainly Trout Unlimited will have a right to object if the dam would halt flows on the river altogether. Suppose, however, that Growing Metropolis promised to allow 25 cfs to pass through the reservoir at all times. Technically speaking, Trout Unlimited still has the same "flow." Twenty-five cfs doesn't look like much moving through a reservoir, but it is there. On the other 2-5