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2-12 I I I I I I 'I I I I I I I I I I I I I portion of a water right which can be changed without injury should be eligible for transfer. Typically, this is the amount of water which is consumptively used. Because no injury results, the priority date should never be changed in a transfer proceeding. (If injury can be shown, the transfer should not be permitted, period.) As unappropriated water becomes increasingly scarce, private willing seller transactions become essential to an effective instream flow program. Indeed, they would benefit not only those interested in protecting habitat, but also farmers (who could gain income and forestall abandonment actions), cities and industries (who could buy rights to protect investments in waste discharge permits, parks, and so on), and developers (who increasingly will be called upon to mitigate habitat in order to obtain federal permits). A sound instream flow transfer program would permit transfers of water rights to instream flows when such transfer avoided injury to all other existing or permitted uses Gunior as well as senior) and satisfied the state's public interest criteria. Artificial statutory restrictions (such limitations to some "minimal" quantity of flow) should be eliminated. When transferred, either permanently or temporarily, the water right should retain its original priority date. Unfortunately, these limitations are fairly common. The courts, however, have demonstrated impatience with them. In one Idaho case, (Minnie Miller Springs), the state's Water Resource Board and the Department of Water Resources agreed that the "minimum" was the entire amount of flow available. In a recent Nebraska Supreme Court decision, Nebraska Game and Parks Comm 'n. v. The 25 Corp., Inc.45, the court sidestepped the limitation in Nebraska's statute to the "minimum necessary to maintain the instream use".'" The court observed that the minimum necessary depended upon what the use was. If the use was to keep fish alive, that was not much water. But where, as in this case, the objective was to maintain a high quality trout fishery, the "minimum" flow was necessarily the "optimum" flow. Just how much of the original water right could be committed to the new instream use would depend on the facts of the particular transaction. For instance, suppose Farmer Jones (in Figure 1) sold his 10 cfs water right to The Nature Conservancy. If users downstream relied upon his return flow of 4 cfs, Farmer Jones could only convey a water right for the reach downstream of his return flow equal to his consumptive use (6 ers). However, he should be able to covey an instream right for the full 10 cfs in the reach between his point of diversion and the return flow. (Unfortunately, this critical point is sometimes overlooked in state instream flow legislation.) The Prognosis for Instream Rights While the traditionally recited requirement of a diversion to beneficial use served historically as an impediment to the recognition of instream uses, that constraint (if it