8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

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Notes

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1.

This chapter is based on a section of a copyrighted publication entitled Handbook on Idaho Water
Law: An Introduction for the Layperson and Guide for the Practitioner. It is reproduced here with
permission of Givens Pursley & Huntley, Boise, Idaho.

2.

Empire Water and Tower Co. v. Cascade Town Co., 205 F. 123 (8th Cir. 1913).

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3.

Strictly speaking, this case was not decided on the diversion issue. Indeed, the coun recognized
that a water right could be obtained for natural irrigation without a diversion, Id. at 129, but not
for aesthetic purposes: w[W]e think complainant [the town] is not entitled to a continuance of the
falls solely for their scenic beauty. The state laws proceed upon more material lines. ... It may
be that if the attention of the lawmakers had been directed to such natural objects of great beauty
they would have sought to preserve them, but we think the dominant idea was utility, liberally and
not narrowly regarded, and we are constrained to follow it. WId.

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4.

On remand the parties consented, for reasons not recorded, to a decree providing that the town
had a senior right for all of the water of Cascade Creek except for one-half cfs. Empire Water
and Power Co. v. Cascade Town Co., Case No. 413, In Equity (U.S. District Coun for the District
of Colorado Decree issued Oct. 15, 1915).

5.

In Schodde v. Twin Falls Land and Water Co., 224 U.S. 107 (1912), the U.S. Supreme Court,
applying Idaho law, denied relief to a senior appropriator when a junior appropriator built a
downstream reservoir which stilled the waters upstream and rendered the senior's waterwheels
ineffective. This conclusion was based on the fact that to command the entire flow for a marginal
benefit was unreasonable. Likewise, in Walsh v. Wallace, 67 P. 914, 917 (Nev. 1902), early
appropriators claimed a water right in the natural overflow of the Reese River upon which they
relied to irrigate their adjoining land. The coun rejected the right, declaring w[T]here must be an
actual diversion of the same, with intent to apply it to a beneficial use . . .: C[., Thomas v.
Guiraud, 6 Colo. 530, 533 (Colo. 1883) (allowing an appropriation of bank overflow for
irrigation). S.V. CIRIACY-WANTRUP, ET AL., WATERS AND WATER RIGHTS, vol. 1, ~ 19.5 (R.E.
Clark ed., The Allen Smith Co., Indianapolis, 1967), contains an interesting discussion entitled
wJudicial tolerance of wasteful practices: The thrust is that the courtS tolerate waste until demand
outstrips supply. A good example is that irrigation by bank overflow initially was viewed as
beneficial, but eventually came to be regarded as wasteful.

6.

WMost western water experts agree that the actual diversion requirement serves no function that
cannot be served by other water law doctrines and statutory procedures. ... For these reasons
instream uses should be valid without the requirement of an actual diversion, and these uses
should be presumed beneficial. W Tarlock, Appropriation for Instream Flow Maintenance: A Progress
Report on wNeww Public Western Water Rights, 1978 UTAH L. REV. 211, 221.

7.

A 25 cfs right measured on a tributary which typically flows at 100 cfs is simple enough to
administer. As that 25 cfs moves downstream, administration may be less certain, as the river goes
through wgainingW and WlosingW reaches, and the small flow is dwarfed in a larger river. Thus, there
may be practical reasons why the state would not grant an instream right for a small quantity over
a substantial distance.

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