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I I I I I I I I I I I I I I I I I I I After that, all water which the. reservoir was in priority to store would be counted toward the second fill, whether it was stored or was merely bypassed.42 Thus, in rough terms, by the time the reservoir was physically full, it would have accomplished its second fill for administrative purposes. This may seem like smoke and mirrors to the uninitiated, but the approach was adopted by the water court and approved by the Colorado Supreme Court. The reason it makes sense is that any water entering a reservoir, which the reservoir is entitled to store, will count against its fill regardless of whether the reservoir actually stores it or bypasses it. Otherwise, a reservoir operator could bypass water in the winter and store water during the irrigation season. This would not be permitted (absent a second fill right) because it could cause injury to surface irrigators who would have been better off had the reservoir filled up with winter water. In short, water which is not stored, but could have been stored, counts toward a storage right. What all this means is that the Taylor Park Reservoir obtained decreed water rights to call (for both bypass and storage) virtually the entire flow of the Taylor River in a coordinated program designed specifically to enhance a downstream fishery as well as to serve irrigation purposes. And all this was done outside of Colorado's supposedly "exclusive" instream flow program administered by the Colorado Water Conservation Board. These cases offer dramatic evidence both of the ingenuity of western water lawyers and of the willingness of western courts to find ways to accommodate new uses of water which make sense. In short, in stream use constitutes an idea whose time has come. One way or another, it may be expected to find its way into practice. Transfers to Instream Uses Another interesting question is whether a person holding a valid consumptive use right, such as an irrigation right, may change the nature of the right to an instream flow use. Curiously, many instream flow statutes simply fail to address this question, focusing instead solely on the acquisition of instream rights by appropriation.43 One state which has struggled, unsuccessfully, with the issue is Idaho. In the 1991 and 1992 sessions, the Idaho legislature considered but rejected legislation drafted by the Department of Water Resources which would have established a procedure for transfers to instream uses.44 The legislation would have allowed a willing holder of a water right to assign or donate the right to the Water Resource Board, which, in turn, would seek approval to hold the right for instream purposes, without loss of priority. Strangely, the legislation would have empowered the Department to adjust the priority date if necessary to "prevent injury." Such a concept is entirely foreign and deeply offensive to the prior appropriation doctrine, whose central premise is protection of priority of right. Only that 2-11